Monday, March 26, 2012

ACA Open Thread

I am diligently producing billable work eagerly awaiting the airing of today's oral arguments on the ACA.  The C-SPAN link is here and of course SCOTUSBlog has extensive coverage.  This is the open forum that all you Anti-Injunction Act junkies have been waiting for.  Thoughts, rants, comments, links to other coverage of note...have at it.

UPDATE 1:  Five minutes into the coverage on C-SPAN3 and already a caller is complaining about the "New World Order" and "making us servants."  Noted media personality, Kent Brockman, captures the mood perfectly:



UPDATE 2: I remain mesmerized by callers to C-SPAN, sort of like people who watch daytime talk shows, I suppose. One caller, professing opposition to the law, proceeded to make all the arguments in the law's favor.

"First of all, no one is dying without health insurance, you can go to the hospital and get treatment."

Hmmm. You mean by adding to the overall cost of healthcare?

"Also, this law would affect Medicare and seniors."

You don't want the government to touch your government mandated health insurance?

Another caller, "I also think this will implicate euthanasia as panels will decide who receives care and who doesn't."

Currently, that's done by for-profit insurance companies (unless you're in Minnesota). In fact, anyone who has clerked or even externed for a judge has dealt with sometimes heart-wrenching ERISA claims against plan administrators who routinely deny coverage.

UPDATE 3: Lyle Denniston's recap of today's argument captures the heart of the circularity I was thinking about on my morning drive: If the ACA is so complicated that striking the minimum coverage provision would require killing the whole thing, then why is the minimum care provision not a valid exercise of Congress's necessary and proper clause?

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15 Comments:

Anonymous Anonymous said...

I don't pretend to be a con law scholar but a couple things are really annoying me about how this debate has been framed.

1) in terms of the individual mandate, for some reason, one of the main issues people are talking about is that this is the first (actually, second, if you count some militia act way back in the day) time the government is *making* you buy something. So f*cking what? That's not the test! The test is whether the activity has has a substantial affect on interstate commerce (or some variation of that; i forget the exact wording from barbri). This clearly does.

2) Similarly the whole issue about whether, if the government can make you buy insurance, they could also make you eat broccoli. Also nonsense. One of the individual rights protections -- say, the same ones found in roe v. wade -- would protect against a law like this. A state government couldn't make you eat broccoli even though states aren't governments of enumerated powers like the federal government is.

Just my annoyance at some bizarre red herrings that seem to have influenced the debate.

3/26/2012 12:59 PM  
Anonymous Anonymous said...

What exactly are these "individual rights protections" you refer to? If they prevent the state from making you eat broccoli, why don't they also prevent it from making you buy health insurance?

3/26/2012 8:21 PM  
Anonymous Anonymous said...

How does health care "clearly" have an affect on interstate commerce, let alone a substantial one? Seems an awful lot like, ummmmm, health and welfare. You know, that whole Tenth Amendment area.

3/26/2012 9:21 PM  
Anonymous Anonymous said...

I don't see the big deal. This country is too hung up on individual rights. This selfish egotistical cancer that has plagued this country for a few hundred years needs to mutate into a more benign form.

The Constitution doesn't make much logical sense. Nor does the democratic form of government.

3/26/2012 11:28 PM  
Blogger A. Fong said...

12:59, it's really an economic substantive due process argument -- an appeal to bring back some form of Lochner I guess.

9:21, the issue is not health care in general, but health insurance. Health insurance is a national market, and the ACA is ultimately about regulating that market. You could say that's a stretch, but it isn't more so than in Wickard (wheat) or Raich (marijuana).

3/27/2012 10:06 AM  
Anonymous Anonymous said...

whatever the merits, if you heard argument today it's getting struck down. The conservative justices will keep their majority for the foreseeable future now as their decision effectively ends the Obama presidency (defeats his key and really only major piece of legislation).

The solicitor general completely choked today. Amazing what bad lawyering can do, it will probably change the course of history.

3/27/2012 10:40 AM  
Anonymous Anonymous said...

Why, if the government can make you pay a tax to cover health insurance -- which it does, Medicare, and no one is arguing that's unconstitutional -- can it not make you buy insurance or choose to pay a fine? It's the same exact thing. Opponents of this law have done a great job of turning this debate on it's head. I think it's premature to say the mandate will be struck down, but if it is, the majority will have gone way against their own precedents, i.e. Raich, Wickard and others. This would totally de-ligitmatize this court, IMO.

3/27/2012 11:04 AM  
Anonymous Anonymous said...

9:21 here

Fong: Wickard and Raich were both idiotic decisions. Particularly Wickard. My hope is that the decision in this case starts a trend of reigning in the over-expansive use of the Commerce Clause.

Whether people should be required to have health care, as a practical matter, is a separate question, to me. And, obviously, I think one that should be left to the States.

3/27/2012 1:14 PM  
Anonymous Anonymous said...

You can argue Raich and Wickard were bad decisions, but no one -- at least, not the opponents of the law -- are arguing that here to my knowledge. (And I believe Scalia voted with the majority in Raich).

So while you may disagree with those cases, stare decisis suggests they should be followed. And a finding that this law is unconstitutional would to my knowledge not be consistent with those -- and many other -- cases.

3/27/2012 1:44 PM  
Anonymous Anonymous said...

1:44 here following up.

And you can disagree with Obamacare as a policy matter -- you can argue it should be left to the states as a policy matter, but here the question is whether it's constitutional of Congress to have passed that law. And there the question is whether the regulated activity has a substantial effect on interestate commerce. Healthcare makes up 1/6 of the national economy. That's a pretty substantial effect. End of analysis.

If you don't want the law, vote for representatives who will repeal it. (But that's not gonna happen.)

Put it this way: if this was a fact pattern in a law school final, before this year, and you argued it was not constitutional, you'd get a P at best.

3/27/2012 1:54 PM  
Anonymous Anonymous said...

OK, maybe that last part is unfair. Or at least douche-y. But you get my point.

3/27/2012 1:56 PM  
Blogger A. Fong said...

11:04, had the administration framed this as "we're taxing people and giving rebates to those who buy health insurance", there'd probably be no constitutional issue. The government has the power to tax.

But the administration specifically chose not to call it a tax and framed this as a penalty for refusing to buy insurance. Although this is economically equivalent to a tax/rebate scheme, you could argue that there are unique political checks on the government's power to tax. And since the government didn't call this a tax, the court shouldn't assume that those unique political checks came into play. As such, the Court shouldn't grant the government the same level of deference it might with a tax/rebate scheme.

That said, I suppose you could argue that in this case, there was no harm / no foul though. I mean, the GOP certainly tried its best to frame this as a tax (among other things), so it's not like the political check failed here.

3/27/2012 2:43 PM  
Anonymous Anonymous said...

9:21 again.

I don't disagree that under current jurisprudence this would fall under the Commerce Clause. I think my point is more that I think the current jurisprudence made up of a number of poorly decided cases, and I hope that this can be the first in a string of cases moving in the opposite direction.

Do I think that is a realistic hope? No more so than my hope that Ron Paul was going to win the GOP primary.

And no worries about the Con Law bit... I got a sub-P from Choper.

3/27/2012 3:31 PM  
Anonymous Anonymous said...

"reining in," like with a horse

"reigning over," like by a queen or king

3/28/2012 7:26 PM  
Anonymous Anonymous said...

"douche," like an item used to shoot fluid into a vagina

"Douche," like a fucktard who combs through comment threads for incorrectly used homophones

3/29/2012 2:35 PM  

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