I had been very disappointed these last weeks as every newspaper in the universe kept saying, “the 4 liberal justices will vote that the mandate is constitutional” because….sheesh, can’t they wait and hear the arguments? And aren’t the arguments good ones? And just because they are left or right, don’t they still believe the constitution counts for something?
Yesterday the liberal justices seemed to do their best to help the Obama lawyer, but their questions were still decent in most cases. Ginsberg related this to Social Security. Kagan notes that by making a mandate unconstitutional you are essentially saying that Obamacare can only work as universal coverage vs the private/public combo.
Lawyers did a good job of distinguishing the 2 markets even though it’s easy to smooth them together.
While “everything is politics”, I really hated thinking that the liberal judges were so in the pocked of the left that they wouldn’t at least have a comprehension of what they would be voting for/against. It’s the constitution!!
Links:
The transcript.
Bryan at ThreeSources has the Ginsberg clip about those not participating making it more expensive for those who are. Of which I respond……”and that concerns the constitutionality how when it’s Congress who has required others into the market?”
Protein Wisdom notes the part where it’s its admitted that the mandate actually solves nothing:
However, in the Supreme Court on Monday, Justice Samuel Alito forced President Barack Obama’s solicitor general, Donald Verrilli, to admit that under Obamacare these free riders will not be eliminated despite the individual mandate.
For an elite group—including people eligible for Medicaid who don’t sign up for it and people whose health care expenses exceed 8 percent of their income—the Obamacare mandate is no mandate and the penalty is neither a penalty nor a tax because they are not required to pay it, period.
Under Obamacare, Verrilli conceded, these people can continue to receive free health care care, not sign up for health insurance, not sign up for Medicaid, and not pay a penalty.
Betsy McCaughey notes that Obamacare puts the government in charge of doctors in the same way that the Supreme Court DISallowed in 2008.
Sec. 1311 of the law says approved plans can pay only doctors and hospitals that follow whatever regulations the federal government imposes in the name of “quality.” That could mean everything — when your cardiologist recommends a stent, or your ob/gyn does a Cesarean.
The WSJ notes that the mandate wouldn’t even begin to fix the problem anyway.
The Constitution may permit far-reaching schemes of insurance regulation; it may even permit an individual mandate. It may permit the government completely to take over health care. But it certainly does not permit insurance fraud. That’s what the mandate is: It forces the young and healthy to pony up once again for another of Washington’s actuarially unsound welfare promises.
In fairness to Mr. Obama, his motives at least are intelligible. The Democratic Party has made it semi-clear that it sees the “progressive” health-care project still at the stage of taking a wrecking ball to the existing system.
We’ll leave aside the political ethics of such salami tactics, which voters have long tolerated. ObamaCare, for the purposes of the Supreme Court, must be assumed to be an end in itself. On its own terms, ObamaCare is a scheme that cannot work and was not designed to work. The justices would not be committing an inconvenience if they forced Congress to start over.
Which brings us back to universal coverage, which would be “constitutional”, yet would lead down these other paths such as the title of this column suggests from the Telegraph:
Why should fat people take precedence over the elderly in the NHS?
Or, if congress can mandate the people buy insurance so that insurance isn’t too expensive, then why can’t congress mandate exercise, healthy eating, who gets to have babies and no/lo risk lifestyles (including overwork by the big taxpayers) so that insurance isn’t too expensive?
Disjointed thoughts and late for work, but I’m pressing publish anyway. Here’s hoping that the Supreme Court still believes the Constitution means something.
UPDATE: Ooh, lets not forget the NYTimes (ht Ann Althouse) who says, that the mandate is constitutional because it is and the Supreme Court is meeting to determine whether there are limits to their authority. bwahahahaha!
In ruling on the constitutionality of requiring most Americans to obtain health insurance, the Supreme Court faces a central test: whether it will recognize limits on its own authority to overturn well-founded acts of Congress.
…and [bold is mine]
The Obama administration persuasively argues that the mandate is central to solving the crisis in America’s health care system, which leaves 50 million people uninsured and accounts for 17.6 percent of the national economy. The challengers contend that the law is an unlimited — and, therefore, unconstitutional — use of federal authority to force individuals to buy insurance, or pay a penalty.
That view wrongly frames the mechanism created by this law. The insurance mandate is nothing like requiring people to buy broccoli — a comparison Justice Antonin Scalia suggested in his exasperated questioning of Solicitor General Donald Verrilli Jr. Congress has no interest in requiring broccoli purchases because the failure to buy broccoli does not push that cost onto others in the system.
except that “buying broccoli” is a metaphor for “doing things purposefully to stay healthy”. And since staying health is a LOT less expensive than getting disease then sorry NYTimes, but yes, Congress will definitely have an interest in “failing to buy broccoli” because it WILL and DOES push that cost onto others in the system.
doh
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