ObamaCare Open Thread

This is the week we hear the pros and cons of allowing the government to force me to buy broccoli.  The Heritage Foundation preps us.

Comments

[rse]

Brussel sprouts or rutabagas might be better choices to fuel that outrage.

I can still remember what the house smelled like if anyone cooked rutabagas.

And you might be able to make sprouts tasty but they will always remind me of the school cafeteria tray.

[Jim,MtnView,Ca,USA]

Mmmm, broccoli.

[Clarice]

At Volokh Professor Adler notes that several of the pro mandate arguments are not valid--one vivid example, the govt helps flood victims even when they have failed to purchase flood insurance.

[Jack is Back!]

All of a sudden, the talk down here from the legal beagles is what Clarice and the other lawyers call "ripeness" or "standing". Speculation is rampant as to whether the SCOTUS will now delay a decision until 2014 based on suits and arguments based on the reality of the tax/penalty etc. I have no idea but its odd that this is now being raised as much as it is. There may be a leak coming out of SCOTUS.

If this is what is in store, will the Q&A and arguments the next 3 days give it away?

[GMAX]

Speaking of better fuel choices on a long walk yesterday I noticed a neglected but valuable fuel source going unexploited. As I cruised by the pond the overflow of the weir was just covered with algae! Who has the number of the proper Obama official to alert so we can tap into this resource and get some relief at the pump?

[Porchlight]

Pardon my ignorance, but what information will we be getting from the Court this week? I understand there will be no cameras, but will there be transcripts? Audio?

[Threadkiller]

Audio is supposed to be released each day, Porch. It will be somewhere on this site when it happens:

http://www.scotusblog.com/category/special-features/health-care/

[Rick Ballard]

Porchlight,

The Supreme Court provides same day transcripts. The Miller v. Alabama gives a taste of how Justices can operate. It's a mandatory sentencing case and the questioning is rather sharp.

[centralcal]

My desk will be buried this Monday morning, so I am hoping to check in on this thread (or another?) throughout the day for reports about the SC arguments today. Anyone know what time they are slated to start?

[Tom Maguire]

All of a sudden, the talk down here from the legal beagles is what Clarice and the other lawyers call "ripeness" or "standing".

I assume the speculation is that if Roberts can't get Kennedy (and Scalia?) on board for repeal he will try to get them on board for punting.

[NK]

OK here we go-- Lawyer olympics in NE DC. I'll read transcripts overnight, and audio when available. The risible former Sol Gen Kaytal says the mandate isn't a mandate. That's all he's got?

[Minimalist Poster]

We're way beyond broccoli already. What about asparagus? Nutritional value and it tests the endocrine system.

We can skip broccoli & even asparagus after the "contraception" mandate. What about Plan B? Or sterilization? How many generations of "conservatives" are "enough?"

[NK]

Anti-Injunction Up today, the mandate and severability tomorrow.

[Clarice]

As I recall the anti injunction argument requires that the court first find the mandate is a tax and this is probably the govt's weakest case, because it has in these proceedings below argued it was not a tax and the odd way the law was passed is inconsistent with the way a tax must be passed--that is it must first come from the House )and not merely as a title on a stripped out bill).

[Clarice]

Heritage has a good, easy to understand rundown of all the issues before the Ct.http://us.mg1.mail.yahoo.com/neo/launch?reason=ignore&rs=1

[maryrose]

I figure Obama is shaking in his boots right about now. When is the last time a edict from a sitting president has been challenged by the SCOTUS? I mean when 27 states have a problem with it and it is upside down in the polls why hang on to it for dear life? Does Obama believe this goofy law is his only accomplishment? This and all his other policies are abject failures. What has to hit him over the head to realize this Obamacare bill is a political loser.
I have to go back to Marko's refrain: He's just not that smart and he is a liar.

[maryrose]

should be an edict.

[NK]

Clarice-- I think today may be revealing. Are Justices dismissive of the tax argument (for the reasons you summarized), or are they looking for a way to avoid Commerce Clause constitutionality? I think that will be revealing.

[Jim Ryan]

The action-inaction distinction is thin gruel. The government already can stop me from doing what I want to do even if I'm having no effect on other people (Wickard). There are many things I want to do to pursue happiness, and the government can stop me from doing all of them if it needs to do so to regulate commerce. The government already has the authority, therefore, to deprive me of my pursuit of happiness. The additional power to force me to engage in certain actions is merely frosting on the cake.

Broccoli? The government already has the authority to stop me from eating red meat and drinking beer if this is necessary to regulate commerce ("Sorry, we need to keep health care costs down, so you can't consume those things anymore.") Do you really think the additional power of making me eat broccoli is a big difference? Liberty is already in principle morally injured under Wickard. The addition of the mandate merely adds insult to injury.

The Obamacare mandate sits securely on Wickard v. Fillburn. The Court should overturn that decision and rule the mandate unconstitutional. If it cannot see its way clear to doing both of these things (which would be the real outrage), then it should rule the mandate constitutional (which alone would not be an outrage.) It should not rule the mandate unconstitutional without overturning Wickard, because that would make little sense.

But I haven't yet dug into the passage about stare decisis in the Shlaes book which Rick told me about.

[NK]

JimR-- Wickard is easily distinguishable,AND the SOTUS can say Wickard is limited to its specific facts. That's what the Court should do IMO.

[MarkO]

It's not a mandate, dictate, compulsion, order. No, it’s merely a financing tool. Isn’t that what taxes are intended to be? Of course, such a measure could never pass. That was the point of the “mandate.” That’s a weak argument, even to those who would write an opinion sustaining it.

[Jim Ryan]

**mortally**

[Jim Ryan]

By the way, I realize I'm a layman amongst some smart lawyers here and I thank you all for your patience and tuition.

[Jane]

I assume the speculation is that if Roberts can't get Kennedy (and Scalia?) on board for repeal he will try to get them on board for punting.

In my paranoia I assumed the left side of the bench wants the bill implemented first so it will be much harder to get rid of.

[Danube of Thought]

"The government already has the authority to stop me from eating red meat and drinking beer if this is necessary to regulate commerce"

Does it?

I think the challengers have done a pretty good job of distinguishing Wickard. I would love to see that case expressly overruled, but doing so is not necessary in order to strike down the mandate, so I doubt the Court will do that.

[NK]

MarkO-- I assume you're referring to former SolGen Katyal's weekend demand the SCOTUS uphold Obamacare. My reaction reading that was "that all you got?". Plus, Katyal calls invalidating Obamacare "grave and profound" because it would be unelected Justices invalidating a solemn political resolution. I'm sure Katyal's is equally anguished by Roe's "grave" political consequences. Puh--Leze.

[NK]

DoT-- I concur about Wickard.

[Rick Ballard]

Jim Ryan,

You're actually a well trained and extremely competent logician with crystal clarity regarding the destination towards which the "reasoning" exemplified by Wickard v Filburn leads. I'm not sure the hair splitting legal pettifoggery masked with tattered and thin sophistry involved in the "legal" explanation of why black is actually white (as determined by 5 out of 9 sitting Ninnies of the High Court) provides a rewarding field of endeavor for a logician not being paid to provide an opinion.

[Jim Ryan]

Does it?

I think so, given Wickard, DoT. Wheat costs too low? No more grow-your-own. Insurance costs too high? No more red meat for you. But I admit I'm over my head here.

[Army of Davids]

I'm no lawyer and certainly not a constitutional scholar...

but I know when I'm about to be screwed over.

[MarkO]

NK, I was following on your post. His entire comment felt like he was preparing to lose. Calling out the "unelected" judges as if they were thereby disqualified from doing the duty the Constitution requires, reflects the arrogance of Obama, but also the fear of losing this case.

From a practical, political perspective, I think if the Court upheld the mandate, it would, as DoT said, make this a single-issue election in which 70% oppose the mandate.

The Court can easily invalidate it and tell Congress to go back and redo it with a tax if the damn thing is so important.

[Clarice]

Wouldn't it be interesting, though, if the Court reversed Wickard? Imagine the number of federal statutes and programs would come under the knife!

[MarkO]

Epstein: http://www.hoover.org/publications/defining-ideas/article/112101

[Jim Ryan]

Ha! Thank you, Rick. But I've long had a policy of hanging around with people smarter than me.

[Extraneus]

How can it be a Commerce Clause issue if a person decides to forgo health insurance and pay cash instead?

[Clarice]

1st report from Scotus blog live report

Bob Long’s argument is almost done. At this point, it seems fairly clear that there are at least five arguments to hold that the anti-injunction act is not jurisdictional or that it does not apply to a penalty like the one in the ACA. But we’ll have to see after the other advocates go.

[cathyf]

the odd way the law was passed is inconsistent with the way a tax must be passed

I've kind of wondered about this in a broader way as to how it affects severability -- the bill is very clearly constructed to come up with a particular cost structure. Ok, sure, you can argue that the cost structure is delusional because of how it was constructed, but that's not the point. The rules for a bill which saves money are different from the rules for a bill which simply spends money. So how can you take the stuff on the "brings in revenue" side of the bill (which would be the mandate for sure, but also the takeover of student loans) and sever them from the "spends revenue" side of the bill and then strike down the revenue but not the spending?

Notice that this also gives Obama political cover to repeal the bill: "Our law would have saved healthcare in the US but those meanies on the Supreme Court ruined it by striking down just part of it. We've got to repeal everything because of the terrible mess that they made. It's tough to be the mature adults when the evil racist rethuglicans are trying to wreck the First Black President's Legacy."

[MarkO]

I can't recall all the permutations, but did this "tax" originate in the House?

[NK]

MarkO-- Interesting point-- the SCOTUS does have a bailout-- invalidate Obamacare, go back and try to pass it as a tax.

[Ignatz]

--I mean when 27 states have a problem with it....--

Still leaves a majority not contesting it though, right?

[Jane]

The media are already making that argument Cathy. "If Obama loses it's political. If Obama wins it is the court acting properly."

(Part 2 as I posted yesterday is: "this is the courts opportunity to redeem itself after stealing the election for Bush."

[Jim Ryan]

I seem to have read that the additional revenue into the system in fines and in premiums paid by now-uninsured people will be negligible when compared to the entire cost of Obamacare. Anyone have a link on that? This would mean that even the main argument for the mandate - that the system won't work unless the now-uninsured pay their share into it - is fairly weak.

[Clarice]

IIRC, the Senate stripped out all the language of a house bill, replaced it with Obamacare as an Amendment which it passed (once Stevens was out) and there was no further action by the House. (I could be wrong, I grow increasingly demented.)

http://blog.heritage.org/2009/12/19/while-you-sleep-100-am-monday-vote-set-on-obamacare/

[Ignatz]

--How can it be a Commerce Clause issue if a person decides to forgo health insurance and pay cash instead?--

That seems to me a rather excellent question.
That person is in no way forcing his costs on to others and unlike Wickard cannot be accused of increasing or decreasing prices or affecting commerce through a disruption of supply and demand (as though any of that is the government's damned business to begin with)
What interstate commerce excuse does the government have for compelling a cash customer to buy health insurance or be penalized for it?

[matt]

I would also argue that the bill is so riddled with exceptions and sweetheart deals as to render it so inequitable that it cannot stand as written. It clearly favors the few states against the many.

When one traces the trades for votes and special favors, it goes well beyond the sausage making process expected of Congress.

[NK]

Matt-- not just states-- under the Act sweetheart waivers were given to unions and some major corporate employers. Obamacare is shakedown street.

[Porchlight]

Thanks for the info, guys. Will look forward to transcripts and audio (and the excellent guidance of the many folks here who know more than me).

[Danube of Thought]

There certainly does seem to be something of a coordinated, united front among the leftist legal commentariat. The issue is framed by all of them as "striking down the law can only occur as a result of corruption; there is actually no serious constitutional issue presented."

[Clarice]

You know there are consequences for continuing to denigrate government institutions..esp the SCOTUS. The more its credibility is attacked on dubious grounds (say the Fla election case) the less of a bulwark we have for preventing riots and civil war.
At the same time, the more the Ct oversteps the bounds, as it did in Plessy and as even Justice Ginzburg concedes they did in Roe, the more the Ct creates disputes that never end and continue to rip into the fabric of society.

What troubles me as much, is the penchant for both sides and the media to decide the correctness of decisions, not on how the Ct got there, but by whether or not they like the results.

[Jane]

Anything leaking out of the hearing?

[Ignatz]

--The issue is framed by all of them as "striking down the law can only occur as a result of corruption; there is actually no serious constitutional issue presented."--

That's the beauty of the "Living Constitution" or to be more accurate "The Humpty Dumpty Constituion";

“I don’t know what you mean by ‘tax, mandate or commerce’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”
“But ‘tax, mandate or commerce' don’t mean ‘a nice knock-down argument’,” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

What could be more apropos than the phrase 'nice knock down argument' with these clowns this particular week?

[Clarice]

Scotusblog:
"When Chief Justice John G. Roberts, Jr., commented at the end of Monday’s first day of hearings on the health care law, “We’ll continue argument on this case tomorrow,” it seemed to have a secondary meaning even if he did not intend it. The comments and questions of the Justices during the 89-minute exchange left the distinct impression that they are prepared to rule on the constitutionality of the mandate that individuals must buy health insurance, and not push the issue off into the future. The exact route they would take was a bit uncertain, but their skepticism about taking a pass now was clear.

That did not mean, of course, that they would ultimately uphold the mandate. That is tomorow’s question. But an argument that at times seemed almost to bog down in the complexity of the tax code pointed toward a refusal to bar the lawsuits that had challenged the mndate and had put it before the Court this week. One of the telltale signs of that sentiment was that not one Justice, and no lawyer at the lectern, said that it would be premature and a contradiction of the Court’s tradition against deciding constitutional issues prematurely for the Court to rule promptly on the mandate’s validity."

[Clarice]

More from Scotusblog:
"he Court had selected a Washington attorney from outside the case, Robert A. Long, Jr., to make an argument that the Supreme Court and no lower court had any authority to rule on the challenges to the mandate, on the theory that the requirement is a part of the tax code so the Anti-Injunction Act of 1867 closed the courthouse doors to any lawsuit against a tax law before it took effect. But the most difficult questions from the bench were aimed at Long’s argument. And most of the Court seemed to be leaning toward some version of the argument made by Solicitor General Donald B. Verrilli, Jr., speaking for a government that very much wants a final decision on the mandate.

Verrilli had to take a bit of a tease that he was arguing on Monday that the mandate was not a tax but would be arguing on Tuesday that it was (a seeming anomaly for which the Solicitor General did have an explanation), but his basic plea to move on to decide what he called “issues of great moment got a largely sympathetic hearing.

The Court talked about three diffeent ways by which it might conclude that it had the power to rule, despite the 1867′s law flat language against any lawsuit that would seem to interrupt the collection of federal tax revenues. The first was to conclude that the AIA was not a court-closing law at all. The second was that it was intended to close the court, but not to every kind of tax challenge. And the third was that it need not decide the jurisdictional question at all, since AIA does not even apply to a provision like the mandate and its attached financial penalty for not obtaining health insurance by the year 2014."

[pagar]

"It clearly favors the few states against the many."

We're seeing that in many of the Washington deals now. Look at the carve out for California in the $25 billion dollar mortgage shakedown.

[Clarice]

So it would appear after the first day that the numerous plaintiffs (including more than half the states) and the Administration want a ruling on the mandate and the Court seems inclined to give the parties that.

[Danube of Thought]

Fox News sees it the same way.

[matt]

Game on, as they say.

"Verrilli had to take a bit of a tease that he was arguing on Monday that the mandate was not a tax but would be arguing on Tuesday that it was (a seeming anomaly for which the Solicitor General did have an explanation)"

I believe the legal term is "talking out of both sides of his mouth".

[Jane]

Thanks Clarice.

[Clarice]

As long as I don't have to sit thru sometimes it's a tax an sometimes it isn't without throwing things at the speaker, it's no problem, Jane.

[NK]

From Phillip Klein of Wash Ex -- his take of today:

http://campaign2012.washingtonexaminer.com/blogs/beltway-confidential/scotus-skeptical-idea-mandate-tax/447466

[Clarice]

From the examiner article--in case your head is spinning on the tax issue:
"The Obama administration has to thread a difficult needle. U.S. Solicitor General Donald Verrilli argued today that the penalty for non-compliance with the mandate did not function as a tax for the purposes of the Anti-Injunction Act. Tomorrow, he'll have to argue that it does operate as a tax, and thus is a constitutional exercise of the congressional power to levy taxes.

Justice Samuel Alito asked Verrilli whether he could point to another case in which courts identified something as not a tax for the purposes of the Anti-Injunction Act while still ruling it was a constitutional exercise of taxing power. Verrilli could not name any. But he went on to explain that the government had identified a number of penalties that would fall into the same category, including three that concern alcohol and tobacco.

Attorney Greg Katsas, representing the NFIB and the states, argued that the Anti-Injunction Act shouldn't apply because the root of the challenge is to the requirement to purchase health insurance, not to the penalty for non-compliance.

But Chief Justice John Roberts was skeptical that the two elements (the mandate and the penalty) could be separated, who said, "Why would you have a requirement that is completely toothless?" he asked."

[rse]

I am reading joyce appleby's The Relentless Revolution at the moment and was struck by how much bo's carving out of special privileges for his cronies sounded like the french way of doing business in the 17th and 18th centuries that made it so hard to move beyond food production. Back we go.

jimr-thought of you yesterday when a niece was so excited about an upcoming class she would be attending to help make her college choice. It was called "Philosophy of critical thinking". I am pretty sure there will be no Locke or montesquieu. I didn't say a word. Same honors program producing a lot of art history and anthropology majors.

So good when the bright kids who stay in-state at one of the few selective programs do not get much knowledge but are led to believe they are engaged in cutting-edge intellectual thought. And the parents do not worry so much about majors because everyone is getting that instate scholarship.

[cathyf]

That person is in no way forcing his costs on to others... What interstate commerce excuse does the government have for compelling a cash customer to buy health insurance or be penalized for it?

Well, in fact, ever since the 1985 law that prohibited hospitals from transferring patients without their consent (dumping), the cash customer DOES force his costs on to others. Anyone with a bona fide medical emergency can call 911, whether they have health insurance or enough money to pay the ambulance bill, and the dispatcher is bound by law to send the ambulance and the EMTs are bound by law to take the person to the E.R. Then the E.R. is bound by law to treat the person, and if it is medically necessary to admit the person to the hospital, then the hospital attached to the E.R. is bound by law to admit the person and not to transfer the patient without the patient's permission.

[Jane]

It seems to me the fact that a tax has to originate in the House is becoming a huge factor. Hell even Kagan might agree with that.

Nahhh

[Clarice]

cathy, only if the cash customer doesn't pay his bill and there's no evidence that ALL cash customers do that.

[cathyf]

But Chief Justice John Roberts was skeptical that the two elements (the mandate and the penalty) could be separated, who said, "Why would you have a requirement that is completely toothless?" he asked.

Except, of course, the mandate penalty IS laughable, and the mandate IS toothless.

[Ignatz]

--Well, in fact, ever since the 1985 law that prohibited hospitals from transferring patients without their consent (dumping), the cash customer DOES force his costs on to others.--

Huh?
I am referring to a cash customer.
You are referring to NO cash customer.

[Jim Ryan]

rse, It's a class for high school students? Is it a college class? I'd have to see the syllabus. It could be taught by the hard-nosed philosophy prof who, though perhaps a liberal, doesn't deal in clap-trap. Georgia State had a wonderful course I taught for a couple of years 20 years ago called "Logic and Critical Thinking." Other colleges have called it "Informal Logic." No, there is no heavy-duty philosophy in these classes, but the textbooks in the field are usually good (Copi and Kahane are two old examples) and the course teaches the kids how to argue carefully and discern good and poor arguments. I imagine it could be taught very poorly, where "critical thinking" meant only some Marxist nonsense, but that didn't happen at Georgia State. We would use, in addition to the textbook, op-eds. These we would teach the kids to slice and dice. I doubt you'd find any Marxist nonsense in a standard informal logic textbook. So, the course could be pretty good, have to check.

[MarkO]

The transcript. I don't know if I have the patience to read it. I'll be throwing things like Clarice.

http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-398-Monday.pdf

[Porchlight]

What troubles me as much, is the penchant for both sides and the media to decide the correctness of decisions, not on how the Ct got there, but by whether or not they like the results.

I agree, Clarice, but to be fair, it is very difficult even for interested laymen to understand the Court's decisions and their precedents, even if they are attempting to do so in good faith. It is much easier to understand the results.

That is probably more a failing of our education system than of anything else.

[Jim Ryan]

rse, Georgia State's course is Phil 1010 at the top of this page.

[rse]

Could be taught that way jim but that's inconsistent with the meaning of critical thinking these days. It's about recognizing what an unfair society we are and brainstorming on how to solve.

And there are new textbooks coming out. Will try to find. Just thought you would appreciate. When a pro uses the term these days, it has an unappreciated meaning that has nothing to do with analytical, logical thought.

GSU was really transformed in my mind by hilliard's presence, grants that tied into its college of ed on bad ideas it agreed to push in aps, and then the in-flux of weak students with hope scholarships. Credentials before content.

[Jim Ryan]

rse, check out the table of contents ("click search inside this book") of this one. I used it back in the day. Pretty good! Should give the ol' noggin' of any 18-year-old a workout. Truth is, by teaching this course I got rid of a lot of my own stupidities.

[Jim Ryan]

GSU was really transformed

Too bad. 20 years ago about half (most?) of all kids were required to take the critical thinking course I described. As a result there were dozens of sections of it and every prof had to help take the load. Adjuncts were used, as well. If this is still so and if the course hasn't changed, then this remains a feather in GSU's cap.

[rse]

jim-just ordered it used for my youngest to do with her tutor.

We used Ronald N Giere's 1979 edition of Understanding Scientific Reasoning in a philosophy course called Logic and Language, a superb course.

Logical fallacies are so useful. Wish I was as good with their latin names as Lord Monckton.

[Extraneus]

BINGO, cathyf.

Emergency Medical Treatment and Active Labor Act

The Emergency Medical Treatment and Active Labor Act (EMTALA)[1] is a U.S. Act of Congress passed in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA). It requires hospitals to provide care to anyone needing emergency healthcare treatment regardless of citizenship, legal status or ability to pay. There are no reimbursement provisions. Participating hospitals may only transfer or discharge patients needing emergency treatment under their own informed consent, after stabilization, or when their condition requires transfer to a hospital better equipped to administer the treatment.[1]

This is the heart of the whole issue. If people can't be turned away for inability to pay, then we're collectively responsible to pay their bills. Since we're responsible, we must make sure that they have insurance, so we won't have to pay, even if we have to buy them the insurance.

This one do-gooder law begot another freedom-choking law, replete with "The Secretary shall..." clauses by the hundreds. The alternative was backing up and forcing able-bodied people to take responsibility for their own health care financing, which probably wasn't even proposed by anyone in Congress.

[NK]

Link to audio of today's argument:

http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Monday

[sbw]

Logical fallacies are so useful. Wish I was as good with their latin names as Lord Monckton.

Shh! Don't tell anyone, but I recommend Madson Pirie's "How to win every argument."

-->Publisher's warning: In the wrong hands this book is dangerous. We recommend that you arm yourself with it whilst keeping it out of the hands of others. Only buy this book as a gift if you are sure that you can trust the recipient.

In this witty and infectious book, Madsen Pirie provides a complete guide to using—and indeed abusing—logic in order to win arguments. He identifies with devastating examples all the most common fallacies popularly used in arguments.

[henry]

Heh, sbw- I gave that book to my niece for Christmas. ; )

[Sue]

Jokes on twitter...hope she beat Sharpton/Jackson to it.

[Sue]

Wrong thread. That's what happens when I have 2 open. ::sigh:: What I was saying, on the other thread was Trayvon Martin's mother is trying to trademark his name.

[Threadkiller]

"On the first day of health care reform arguments before the Supreme Court, two justices needled a top Obama lawyer for simultaneously calling the fine that will be paid under the law for not purchasing insurance a “penalty” and a “tax.”

The confusion arises because of the administration’s argument that the power to enforce the individual mandate is rooted in Congress’ taxing power —but that the mechanism itself is designed to be a penalty, not a revenue-generating policy.

The narrow but important distinction created a communication challenge for the lawyer representing the Obama administration.

U.S. Solicitor General Donald Verrilli used the phrase “tax penalty” multiple times to describe the individual mandate’s backstop. He portrayed the fee as a penalty by design, but one that functions as a tax because it’s collected through the tax code.

“General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax,” said Justice Samuel Alito, in one of the few laugh lines throughout the 90 minutes of argument Monday."

http://nation.foxnews.com/obamacare/2012/03/26/obama-lawyer-laughed-supreme-court

[cathyf]

An Althouse commenter Bender picks up on this exchange

JUSTICE ALITO: Sub-section A says directly, "an applicable individual shall ensure that the individual has the minimum essential coverage." And you are saying it doesn't really mean that, that if you're not subject to the penalty, you're not under the obligation to maintain the minimum essential coverage?

GENERAL VERRILLI: That's correct. pp. 47-48

Is this a fatal concession?

If the mandate applies only to those subject to the penalty, but the penalty applies only at then end of the tax year, at filing time, then there can be no "obligation to maintain the minimum essential coverage" at the beginning of that tax year.

Then he points to another one:

JUSTICE ALITO: Suppose a person who has been receiving medical care in an emergency room -- has no health insurance but, over the years, goes to the emergency room when the person wants medical care -- goes to the emergency room, and the hospital says, well, fine, you are eligible for Medicaid, enroll in Medicaid. And the person says, no, I don't want that. I want to continue to get -- just get care here from the emergency room. Will the hospital be able to point to the mandate and say, well, you're obligated to enroll?
GENERAL VERRILLI: No, I don't think so, Justice Alito, for the same reason I just gave. I think that the -- that the answer in that situation is that that person, assuming that person -- well, if that person is eligible for Medicaid, they may well not be in a situation where they are going to face any tax penalty and therefore --
JUSTICE ALITO: No, they are not facing the tax penalty.
GENERAL VERRILLI: Right, right.
JUSTICE ALITO: So the hospital will have to continue to give them care and pay for it themselves, and not require them to be enrolled in Medicaid.
GENERAL VERRILLI: Right. p.50

We know that the 4 usual suspects are going to vote in favor of this. Wow. Just wow. Alito shows that upholding this thing is going to be simply the end of the rule of law in the US.

[Porchlight]

I predict at least 7 of the 9 justices will go home tonight cursing this POS bill from the bottom of their hearts.

[MarkO]

cathyf, I read that and thought these were among the most facile arguments I've ever heard for a significant issue.

[Clarice]

porchlight, you have my vote. If by some ridiculous turn of fate, I were on that panel, the Solicitor General would have a black eye this evening.

[Rick Ballard]

Clarice,

Isn't the Court going to have to decide whether Obamacare is in fact both a premier floor wax and a delicious dessert topping? I don't see a particular problem with showing disrespect for the institution which instituted this level of bureaucratic tyranny through its Benthamite/JS Mill motivated "greater good" Wickard decision. I'm disinclined to show any reverence for the Oracle of the Emanating Penumbra due to its too close attachment to Leviathan - whether lead by scrofulous leftists, muddled moderates or thin veneer conservatives matters not a whit to me.

[Clarice]

It seems to me from the accounts I read that the Ct has already decided--it's NOT a tax. If it were a tax they'd have been forced to consider more seriously whether the anti-injunction act bars the next step of the proceeding.

But, don't bank on my opinion--this is the biggest pile of mishigas I have ever seen in the SCOTUS.

[Jim Rhoads a/k/a vnjagvet]

Now that I'm no longer actively practicing law, my patience for casuistic legal argument is pretty much gone. Reading today's arguments of the Amicus and Solicitor General made me grit my teeth. My legal conclusion is "what a bunch of BS".

[Jane]

But, don't bank on my opinion--this is the biggest pile of mishigas I have ever seen in the SCOTUS.

If it's not a tax, don't they lose?

[Clarice]

I think that's what that cockamamie exchange with Alito upthread was meant to do--persuade the Ct that even though it's not a tax, there's no penalty for not taking out insurance.
Maybe
Could be
Who knows.

My head's spinning from tat exchange.

[MarkO]

So far, the government's position would ordinarily be described as a thin case.

[maryrose]

RB:
Loved the florr wax comment. This dumb law is going down.
Ignatz: We know there are 50 states. Obama thinks there are 57. So he believes as do his cronies that most states support the law. The ones with dem AG's do but that's about it.Cordray wouldn't petition the court about it while AG in Ohio. His reward- he gets to head the new Dodd-Frank Commission.

[MarkO]

RB, good get on the old SNL line.

[Rick Ballard]

DrJ,

I believe there's a fortune to be made if you can come up with a Penumbral Emanoscope. Don't worry about particularly accurate forecasts - we can sell it on "accurate" backcasting based upon completely scientistic and original applications of nouveau statistical methodology. We'll pitch it on "currently the best available". There's no problem with truth in advertising with that approach.

[DrJ]

Rick,

What's the code for reimbursement by Obamacare? :) Oh, I thought you wanted an Emanoscopy. Different instrument. I'll let you know when there's a prototype.

[Melinda Romanoff]

Who was that?

[Clarice]

We can do a zogby--change the prediction if it;;s wrong as the decision is coming over the wires.

[Rick Ballard]

Clarice,

Nah - we just offer a little discount on the v2 if they order and put down the 70% deposit within 24 hours of making a complaint.

[Jim Ryan]

Clarice, Jim Rhoades,

There is bit of space between the premise "This law and the defense are a muddled pile of BS" to the conclusion "This law is unconstitutional." If a majority of justices accept the premise, would a remotely plausible argument from the plaintiffs be enough to get to the conclusion? Where does the burden of proof lie here, with the plaintiff? How does this go forward from here with the seven justices grinding their teeth?