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 Post subject: Affordable Care Act Supreme Court
PostPosted: Tue Mar 27, 2012 8:08 pm 
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Some very surprising remarks by the Justices today. What are people's thoughts on the bill overall? I think it could set a dangerous precedent for the government to regulate other sectors, however, I am no lawyer. What do some of the lawyer's think about all this? Also, did anyone else feel bad for the solicitor general stumbling like that? Ouch.


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 Post subject: Re: Affordable Care Act Supreme Court
PostPosted: Wed Mar 28, 2012 1:13 pm 
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Is there video of this somewhere?


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 Post subject: Re: Affordable Care Act Supreme Court
PostPosted: Wed Mar 28, 2012 3:26 pm 
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SHPIDA wrote:
Is there video of this somewhere?


No cameras allowed in the Supreme Court. From what I understand, live audio is quite rare, as well.

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 Post subject: Re: Affordable Care Act Supreme Court
PostPosted: Wed Mar 28, 2012 3:30 pm 
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Hilltop wrote:
Some very surprising remarks by the Justices today. What are people's thoughts on the bill overall? I think it could set a dangerous precedent for the government to regulate other sectors, however, I am no lawyer. What do some of the lawyer's think about all this? Also, did anyone else feel bad for the solicitor general stumbling like that? Ouch.


I didn't find the remarks surprising at all. This is a highly politicized Supreme Court where, if a case has partisan political implications, the votes of all but a couple of justices are practically certain before the case even begins.

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 Post subject: Re: Affordable Care Act Supreme Court
PostPosted: Thu Mar 29, 2012 9:26 pm 
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Basically, Chico, I find it very interesting that the justices laughed at the Solicitor General as well as some of the justices (Kagan, Sotomayor, Breyer), giving him leading questions as he was struggling. As for Wednesday, it was very interesting as the justices proposed a hypothetical situation where the mandate was struck down on how to deal with the law from then on. We're witnessing history, which is just a very empowering feeling.


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 Post subject: Re: Affordable Care Act Supreme Court
PostPosted: Sat Mar 31, 2012 9:37 am 
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Not sure if "empowering" would be the right term.

What we have here is a conservative majority (Roberts, Thomas, Scalia, Alito, and Kennedy) trying to figure out how to strike down a law that it doesn't like purely for political purposes without reversing decades of Commerce Clause precedent (including precedent set by some of the conservative justices hearing this case), inviting constitutional challenges to the New Deal and Great Society programs, and further undermining the court's credibility, which took a hard hit back in 2000 with Bush v. Gore.

We also have double irony.

Instead of addressing the exponential rise in healthcare costs by instituting single payer or "Medicare for all," which would have been constitutional (or at least it would have been before the Roberts court), Obama and the Democrats opted for a "market-based" healthcare law with an individual mandate designed by a conservative think tank (The Heritage Foundation) and widely embraced by Republican politicians - that is, until the Democrats proposed making it law, at which point it instantly became unconstitutional. So we have a conservative court trying to figure out how to rule that a conservative healthcare proposal is unconstitutional.

The second irony is that in doing so, the conservative court will then have to determine whether to repeal the whole thing, thereby nullifying the parts of the healthcare law already in effect (e.g., men and women under 26 currently under their parents' health insurance plans would lose coverage), simply nullify the individual mandate, which would send insurance rates through the roof, or invalidate the individual mandate and other select parts of the law (but leave other parts intact) to avoid this problem. Essentially, the court would be guilty of one of the gravest sins conservatives accuse liberal courts of doing - "legislating from the bench" or "judicial activism".

Oh, and if it does get repealed, the Republicans have no plan for what they would replace it with.


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 Post subject: Re: Affordable Care Act Supreme Court
PostPosted: Fri Apr 06, 2012 11:44 am 
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Banger, we always end up clashing, so obviously I think you are overstating the position of the Republican appointed justices. It is no sure thing they will overturn it, with even Roberts and Kennedy considered wild cards in some places despite the questioning. One can say they were hard on the Solicitor General, however, the Democratic appointed justices gave many, many leading questions trying to get a desired outcome. Plus, most cases also agree if the law is struck down it will only be the individual mandate. The Republican justices might want to do away with all of it, but that seems like it would be impossible with many provisions already in effect, such as the adult children eligible until 26.

People trust the Supreme Court. It is the only part of the government with a favorable viewing among the entire population, though it has slipped a little lately. It still retains a higher rating than any other branch of government. Therefore, President Obama's comments on the court are very troubling to the entire country, with even liberal publications voicing concern. It is very likely he did misspeak as terms of the law being "unprecedented" as he is a law professor. Nor do I believe he is someone who questions the Courts legitimacy to determine laws' constitutionality. However, it was clearly a political grab; an attempt to try to paint the Court as a "radical" court in an attempt to cover himself in the election year. As I said, with everyone universally viewing the court favorably, this is a very dangerous ploy as he has now had to backtrack continuously on the issue. The President clearly believes this is an issue he may lose, despite his speeches. Not to mention he has battled with the Court in 2010 over Citizens United, a decision regarding Super PACs, which he is now using himself this election season, flip-flopping on the issue. Whether or not this is overturned, the President, I believe, will continue to attack the Court and Congress as the election nears as many Americans will not approve of his record. No matter, attacking the Court seems like sour grapes in what is an extraordinary power grab by Congress and the President.

As Justice Scalia said (paraphrasing),"Young, healthy people will not enter into health insurance now as it is not necessary and the money is needed elsewhere. However, as they get older and age, they will get it." That is essentially the issue. People should not be forced to give up freedom in order to comply with something they do not need. This is the goverment telling people how to spend their money, a gross misappropriation of power.


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 Post subject: Re: Affordable Care Act Supreme Court
PostPosted: Mon Apr 09, 2012 2:03 pm 
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Opinions of the court among Republicans and Independents have jumped significantly since last week's hearings. While it is "impossible" to know the cause, the polling, done right after the hearings, appear to be further indictment by the American people of the ACA.

http://www.rasmussenreports.com/public_content/politics/mood_of_america/supreme_court_update


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 Post subject: Re: Affordable Care Act Supreme Court
PostPosted: Mon Apr 09, 2012 2:21 pm 
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It's important to note that when this legislation was being put together, pretty much everyone on the left and right agreed that it was constitutional. Whether it is a "good idea" is a completely separate issue, but this is a Democractic president implementing an almost completely Republican idea with bipartisan support in Congress. The ACA -- along with most comprehensive health care solutions posited in the last 20 years -- is way to the right of Nixon and pretty much what Bob Dole had in mind.

Concerns about constitutionality mysteriously popped up right when President Obama decided that the insurance mandate was the best (political) way to deal with rising healthcare costs. There isn't a whole lot of mystery as to what is going on here, nor is there a ton of mystery in Rassmussen polling (a Republican polling agency for all intents and purposes) showing that people having a higher opinion of the high court. Republicans like the court when it favors their political causes. Since the courts have been vilified by the right for the last [choose your number] election cycles, any high profile news benefitting GOP causes will help "opinion of the courts" questions -- especially when done by Rasmussen.

As a lawyer, it's pretty embarassing to our profession that political reporters and laymen feel that they have a good sense of how justices are going to vote before the opinions are written. Since Bush v. Gore, the Court has been demystified in very serious way. That Bush's nominees are voting for GOP causes and Obama's nominees voting for Dem causes is a pretty crappy sign for the American system of government.

Anyway, the irony in this case is that if the court does do the political thing (and it is political) and strike the law down, the best solution to our health care problems is the "lefty" single-payer solution, "Medicare For All". Some people would just call this the "industrialized nation solution." So by carving out a victory for the right, the ultimate solution might be a huge victory for the left. Remember, this bill isn't exactly a dream come true for Democrats. This is the Republican vision of health care reform.

Unfortunately, even if there is a better solution out there, our Congress does will not have the political will to re-try healthcare.

Anyway, my prediction is that the law is upheld but kneecapped in a serious way that will allow the GOP to make commercials saying they have won. The end.

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 Post subject: Re: Affordable Care Act Supreme Court
PostPosted: Thu Apr 12, 2012 11:55 am 
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Hilltop wrote:
As Justice Scalia said (paraphrasing),"Young, healthy people will not enter into health insurance now as it is not necessary and the money is needed elsewhere. However, as they get older and age, they will get it." That is essentially the issue.

Scalia's statement reflects such an intentional ignorance of the healthcare problems in this country I am shocked he didn't break out into laughter at the baldness of his lie.

The problem is that too many people think health insurance is "not necessary" and then find themselves with unexpected health problems and not have the money to pay for it. Moreoever, because those who deem health insurance "not necessary" usually also think the same thing about regular checkups, these unexpected health problems are often detected late, necessitating more expensive treatment.

And who pays for this treatment when these people cannot? Everybody else. Healthcare providers legally cannot deny healthcare to anyone, and as a result, the costs they incur for providing healthcare given to those who think that health insurance is "not necessary" is passed on to people who have insurance in the form of higher premiums, thereby contributing significantly to the rapid rise of healthcare costs in this country.

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People should not be forced to give up freedom in order to comply with something they do not need. This is the goverment telling people how to spend their money, a gross misappropriation of power.

It's not a gross misappropriation of power. This is no different than if the government imposed a $700 per person tax increase and then gave a $700 tax credit for people who obtained health insurance or qualified for Medicare or Medicaid. Thus, not only is the individual mandate constitutional under the Commerce Clause, it is constitutional under the Taxing and Spending Clause.

The standard of review for Commerce Clause laws is rational basis, which is the lowest level of scrutiny, and it is easily met here by the simple fact that the cost of healthcare continues to rise precipitously, thereby negatively impacting interstate commerce. As has been stated many times, this law does not regulate the "inactivity" of not buying health insurance, but rather the activity of participating in the healthcare system, which virtually all Americans participate in at various points in their lives.

Hilltop, you still haven't explained what caused the Republican change of heart over the individual mandate. Why is it that for over a decade Republicans thought it was a great idea but then when Democrats created a law around it they instantly decided that it was unconstitutional?


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 Post subject: Re: Affordable Care Act Supreme Court
PostPosted: Thu Apr 12, 2012 4:20 pm 
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Hilltop, you still haven't explained what caused the Republican change of heart over the individual mandate. Why is it that for over a decade Republicans thought it was a great idea but then when Democrats created a law around it they instantly decided that it was unconstitutional?


That right there is something I don't think anyone can explain other than they changed their minds, which sounds ridiculous. However, a more reasonable account is that an individual mandate is applicable for state's rights only. The Constitution severely limits the difference in power appropriated to the federal government and state. Therefore, it is much more reasonable to assume that states have the power to enact the mandate than the federal government, hence why it is legal for a state and illegal for the federal government.


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 Post subject: Re: Affordable Care Act Supreme Court
PostPosted: Thu Apr 12, 2012 5:26 pm 
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Hilltop wrote:
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Hilltop, you still haven't explained what caused the Republican change of heart over the individual mandate. Why is it that for over a decade Republicans thought it was a great idea but then when Democrats created a law around it they instantly decided that it was unconstitutional?


That right there is something I don't think anyone can explain other than they changed their minds, which sounds ridiculous. However, a more reasonable account is that an individual mandate is applicable for state's rights only. The Constitution severely limits the difference in power appropriated to the federal government and state. Therefore, it is much more reasonable to assume that states have the power to enact the mandate than the federal government, hence why it is legal for a state and illegal for the federal government.

If it is really all about states' rights, why did 19 Republican Senators co-sponsor the Health Equity and Access Reform Today Act of 1993, a federal bill which contained an individual mandate?

If it is really all about states' rights, why did 11 Republican Senators support the 2007 Wyden-Bennett federal healthcare bill, which also included an individual mandate?

If it is really all about states' rights, why did all of these Republican Senators continue to support a federal individual mandate all the way until the moment that it became part of Obamacare and then immediately thereafter declared that it was unconstitutional?

If it is really all about states' rights...
...why did Mitt Romney support the Wyden-Bennett healthcare bill in 2009?
...why did Newt Gingrich support a nationwide individual mandate as recently as 2008?


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