Obamacare at the Supreme Court

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Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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  1. Avatar Jaybird
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    says:

    If Congress’s Affordable Care Act doesn’t have a severability clause, why do other laws need them?

    I mean, *DO* other laws need them?Report

    • Avatar Jason Kuznicki in reply to Jaybird
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      says:

      Yes, it’s usually a good thing to have a severability clause, in all sorts of legal documents.  Even individual wills commonly have them.

      Now, I’ve seen plenty of argument about what the lack of a severability clause might mean here.  Much of this aims to answer the question of whether different parts are still severable anyway, and if so, how and where.

      I don’t know of anyone saying that omitting the clause was a good idea.  Congress goofed here, and to my knowledge no one’s trying to defend them on it.Report

      • Nob Akimoto Nob Akimoto in reply to Jason Kuznicki
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        says:

        I dunno, I was under the impression that a severability clause would have sent the insurance industry into a tizzy and probably undermined their support for the law, given that if the mandate were thrown out, but the rest of the law not, they’d essentially be ruined.Report

        • Avatar Stillwater in reply to Nob Akimoto
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          says:

          Nob, that’s my understanding as well. The insurance companies would only agree to all the operational revisions if they could reliably expect everyone – even the young and restless healthy – to participate. In fact, I agree with you in thinking that severing the mandate from the other provisions would be disastrous for insurance companies. Personally, I don’t see how the court could rule that way, given that the basket of other provisions logically depend on the mandate to be cost effective.Report

      • Avatar Jaybird in reply to Jason Kuznicki
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        says:

        Doesn’t the lack of a severability clause automatically mean “we have to throw out babies if we throw out bathwater”?Report

        • Avatar Michael Drew in reply to Jaybird
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          says:

          No.  Lack of actual severability means that.  Judges can decide if that exists on the merits.  A severability clause just makes it much, much more difficult to find that it does, and perhaps seals the question.  But the lack of such a clause just leaves it up to judges.Report

          • Avatar Jaybird in reply to Michael Drew
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            says:

            Ugh, that’s a crapstorm waiting to happen.

            With that clarification, wheels now spin:

            Hrm. What if the only thing they got rid of was the mandate?Report

            • Nob Akimoto Nob Akimoto in reply to Jaybird
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              says:

              Then we’ll see either singlepayer or the end of health insurance period within 10 years.Report

              • Avatar Tom Van Dyke in reply to Nob Akimoto
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                says:

                Shhhhhhhhhh.  That was always the plan.

                John Conyers: Obamacare is a “Platform” for Single-Payer

                http://lonelyconservative.com/2012/02/kathleen-sebelius-private-health-insurance-market-in-a-death-spiral/

                CNS News has video of the exchange between Sebelius and Rep. Peter Roskan (R-IL) as well as details of follow up comments by the Cabinet Secretary.

                “How about when the president said you can keep your health care coverage, if you like it?” Roskam said. “And yet, the reality is, according to Bloomberg (News) at least, 9 percent fewer businesses are offering medical coverage than in 2010. There the rhetoric didn’t meet the reality, did it?”

                Sebelius did not contest the numbers.

                “Well again, congressman, what you’re seeing, it wouldn’t have mattered if we had passed the Affordable Care Act or not,” she said. “The private market is in a death spiral.”

                Under President Obama’s health-care law, all Americans will be required to purchase a government-approved health-care plan and those earning under 400 percent of the poverty level will be eligible for a federal subsidy to do it.

                Later on Tuesday, in an address to the American Cancer Society’s Cancer Action Network, Sebelius discussed the “broken” health insurance system that Obamacare aims to fix.

                Sebelius said that the next “important step” in implementing the president’s health care plan is to establish “essential health benefits”–the basic package of coverage that the federal government will order all health insurance plans to cover.

                 Report

              • Avatar Shannon's Mouse in reply to Tom Van Dyke
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                says:

                The possibility that right-wing legal challenges to the mandate might hasten the arrival of single-payer is quite a delicious irony.  I’m not really holding my breath for such a possibility, though.  Insurance industry money can go a long way toward convincing people (and Senators) that recission and denying coverage to folks with pre-existing conditions is as American as Mom and apple pie.Report

              • Avatar Liberty60 in reply to Tom Van Dyke
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                says:

                The health insurance “market” is in fact in a suicidal sprial,without any help from the libs.

                There isn’t any realistic scenario whereby we can maintain private for-profit health insurance at rates that the majority can afford. Businesses willl soon be clamoring for a way to take this monkey off their backs and individuals can’t possibly afford it, so by doing nothing, within our lifetimes we will see health insurance become a luxury good that only the 1% have.

                What the rest of us will do, I have not a clue.Report

              • Avatar Kimmi in reply to Liberty60
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                says:

                the insurance companies saw doomsday coming. they ain’t that stupid. so they create big bundled vertical monopolies, where there is less waste and less incentive for stupiditity like “death by spreadsheet”Report

      • Avatar Will H. in reply to Jason Kuznicki
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        says:

        Stipulations on severability are the norm for contracts, but I haven’t seen one in a law before.
        That said, I look at statutes directly a lot more than reading through the acts that create them.Report

  2. Avatar Alan Scott
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    says:

    Health insurance is undeniably very different and very weird–and has been treated as such by all levels of government for the past seven decades.  If it wasn’t so weird, we’d have a functioning market and wouldn’t need healthcare reform in the first place.  Doesn’t mean that it’s different in a way that permits a mandate, though.Report

    • Avatar Morat20 in reply to Alan Scott
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      says:

      I just don’t get the weird obsession with the “broccoli argument” — the notion that if the government can mandate this, there are no limits to anything! Some of the Justices were pushing for a limiting principle…

      And I couldn’t help but think “It’s called “necessary and proper”. I realize that’s not really a judicial test, per se, but it’s right there in black and white. Whatever means are [i]necessary and proper[/i] to the goal at hand, but that are not forbidden, are acceptable.

      That makes it, in my opinion, far more of a legislative issue. The courts can — and have! — ruled that some things are NOT necessary and proper to a law, which is all well and good. Congress does like to tie one thing to another to get around limitations it might not like. Or just to make the usual sausage of law.

      But in general, if Congress has a goal that is covered under, say — the Commerce Clause (and regulation of healthcare is certainly covered) — then it should have a great deal of leeway to determine what is necessary and proper to do so. It’s not like the individual mandate is a thinly connected bit tied to health care (like, say, guns near schools were).Report

      • Avatar Jason Kuznicki in reply to Morat20
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        says:

        It would undoubtedly make health care more affordable for everyone if Congress were to mandate eight hours of sleep per night.  Ditto to restricting salt in food and outlawing tobacco and refined sugar.

        Necessary and proper?  I’d say so, at least if “regulate interstate commerce” translates to “make health care as inexpensive as possible.”  The Court has already ruled that “necessary” doesn’t mean absolutely necessary. Driving down health care costs is the only piece of the puzzle still lacking.Report

  3. Avatar Will H.
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    says:

    What!?!? There’s no Baseball Clause in the Constitution!?!?Report

  4. Avatar Patrick Cahalan
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    says:

    So far the bits of analysis I’ve read seem to point to, “Kennedy’s questioning indicates he doesn’t seem to be a fan”, which doesn’t bode well for supporters.Report

  5. Avatar b-psycho
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    says:

    While I opposed the “reform” at the time & still do, when it comes to the current argument about it I can’t help but think the following: Isn’t “forcing the public to purchase X”, where X is something an amount of people don’t want, base to the definition of What Government Is?

    Seriously.  I welcome that the impropriety of this force is coming up, while wondering when the fish the ones most visibly bringing it up will realize how far it really goes. But nobody gores their own ox, so…Report

    • Avatar Jason Kuznicki in reply to b-psycho
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      says:

      Isn’t “forcing the public to purchase X”, where X is something an amount of people don’t want, base to the definition of What Government Is?

      Yes!  Absolutely.  You’re entirely right about this.

      Which is why it’s important that we limit the power to act in this way.  I would not abolish the power entirely, but I also think that if this power is going to exist in our society, it should be within some strict and well-defined limits.  Saying “Well, I think this particular exercise of the power to compel would have good consequences” isn’t to my mind a well-defined limit.  Writing it down and agreeing upon it via a supermajority of the states is a lot better.Report

      • Avatar Michael Drew in reply to Jason Kuznicki
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        says:

        Just so I and others are 100% clear on this (because if we two of us had not already had this discussion a year ago or more, I would genuinely not be clear at all about it): you’re referring here to your reading of the Article I that already exists; this is not a prospective proposal, correct?Report

  6. Avatar Mike Schilling
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    says:

    After all, we do have a baseball exception to antitrust, and you won’t find that in the text of the Constitution, either.

    I don’t see the “Supreme Court gets to call a presidential election” clause either.Report

    • Avatar Brandon Berg in reply to Mike Schilling
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      says:

      The federal courts decide all cases arising under the US Constitution. When there’s a dispute regarding federal election law, who else is going to decide it?Report

      • Avatar MikeSchilling in reply to Brandon Berg
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        says:

        The dispute was about vote counting within a state, something explicitly left to the states.Report

        • Avatar James Hanley in reply to MikeSchilling
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          says:

          Mike,

          Under the equal protection clause, not necessarily.  I suppose one could also potentially stretch a point and say not under the republican gov’t clause, either, but I don’t know how strong that argument would be.Report

          • Avatar MikeSchilling in reply to James Hanley
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            says:

            When, under the equal protection clause, has the remedy been “Don’t count the votes”?Report

            • Avatar James Hanley in reply to MikeSchilling
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              says:

              Oh, don’t get me wrong–I’m only defending jurisdiction, not the ruling!Report

              • Avatar MikeSchilling in reply to James Hanley
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                says:

                Sure.  I’m expressing skepticism that it was decided as an equal protection case.Report

              • Avatar James Hanley in reply to MikeSchilling
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                says:

                Nevertheless, that was in fact a significant part of the Court’s judgement.  Here’s the summary from Oyez.

                Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by “later arbitrary and disparate treatment,” the per curiam opinion held 7-2 that the Florida Supreme Court’s scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the “safe harbor” provided by 3 USC Section 5).

                Report

              • Avatar MikeSchilling in reply to James Hanley
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                says:

                 Ginsburg and Stevens (writing separately) argued that for reasons of federalism, the Florida Supreme Court’s decision ought to be respected.

                But, as with FMA, federalism is an optional principle.Report

            • Avatar Will H. in reply to MikeSchilling
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              says:

              The vote was certified by the appropriate state agency.
              After that, it was a federal question.Report

  7. Avatar Brandon Berg
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    says:

    Really, the whole thing is unconstitutional. It’s just that most parts of the law are unconstitutional in ways that have come to be regarded as constitutional as a result of inertia, ideology, and, in case of Roosevelt’s court-packing scheme, straight-up blackmail. What’s unique about the mandate is that it’s unconstitutional in a novel way.Report

    • Avatar Michael Drew in reply to Brandon Berg
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      says:

      Inertia and ideology (and ideological inertia) have no legitimate place affecting what comes to be regarded as constitutional over the course of centuries in a constitutional scheme defined by a document that is nothing but (or at least is largely) a series of general categories and conceptual relationships between them (ideological ones at that!), whose relationship to physical reality can only be created by fleshing it out in the course of actually negotiating that interaction over time?Report

      • Avatar Brandon Berg in reply to Michael Drew
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        says:

        There are things which are plainly unconstitutional, things which are plainly constitutional, and grey areas not fully specified. Only things which fall into the latter category are really up for legitimate debate.

        The Constitution specifically enumerates the powers of Congress for a reason. If they had wanted Congress to be able to pass whatever laws it felt like, and for the Court to decide which ones they liked and throw out the rest based on personal ideology, they would have just written that instead of specifying a detailed list of Congress’s powers. There’s a specific, very difficult process for amending the Constitution for a reason. If they had wanted the Supreme Court just to be able to decide for reasons of personal ideology that when the Constitution says up it really means down, they would have written that instead of specifying the actual amendment process we have.

        The butterfly effect interpretation of the commerce clause is just a hand-wavy rationalization for the Court ruling to uphold laws they like for personal ideological reasons.Report

        • Avatar Jesse Ewiak in reply to Brandon Berg
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          says:

          I agree there’s a specific list of powers. It’s a good thing the necessary and proper clause is part of those powers.Report

          • Avatar Brandon Berg in reply to Jesse Ewiak
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            says:

            The butterfly effect interpretation of the necessary and proper clause is a hand-wavy rationalization for the Court ruling to uphold laws they like for personal ideological reasons.Report

            • Avatar Jesse Ewiak in reply to Brandon Berg
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              says:

              I could say the same thing about the second amendment in recent years.Report

            • Avatar Will H. in reply to Brandon Berg
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              says:

              If you look at the sort of misconduct that prosecutors are allowed to get away with (nevermind the police), then yes, they pretty much decide according to who the parties at issue are.
              If a defendant set up a fund to purchase perjured testimony, that would be a crime. Prosecutors? Not so much.
              If a defendant were to pressure a recalcitrant witness’ employer to the point of getting the witness fired, that would be a crime. Prosecutors? Not so much.
              It happens all the time.
              Doesn’t make it right.
              It just makes it real.Report

        • Avatar b-psycho in reply to Brandon Berg
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          says:

          The denial that Supreme Court members decide things based on their personal views — as well as the related denial that presidents nominate justices without the obvious intention that they decide like they would to whatever extent possible — really needs to finish dying already.

          Not only do they do this, but they always have.  What exactly is there to do about it?  You’re never going to see a ruling that essentially says “This law is the height of stupidity, but it’s constitutional”.

           Report

          • Avatar Jesse Ewiak in reply to b-psycho
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            says:

            Bingo. The Warren Court found segregation unconstitutional not because of a careful reading of the Constitution, but because they wanted to get rid of segregation.Report

            • Avatar Brandon Berg in reply to Jesse Ewiak
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              says:

              Actually, there was a pretty good case for striking down segregation on equal protection grounds. It’s just that earlier courts had chosen to ignore the Constitution.

              Much as modern courts choose to ignore constitutional limitations on federal power.Report

          • Avatar Jaybird in reply to b-psycho
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            says:

            You’re never going to see a ruling that essentially says “This law is the height of stupidity, but it’s constitutional”.

            Griswold v. Connecticut’s dissent said something to that effect.Report

          • Avatar Tom Van Dyke in reply to b-psycho
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            Actually, that was the dissent in <em>Lawrence v. Texas</em>.

            Nice 808 you got there, Mr. Psycho.Report

            • Avatar b-psycho in reply to Tom Van Dyke
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              says:

              Just looked those up, and I’m surprised.  Also, nice to know someone realized what was in my avatar.Report

            • Avatar MikeSchilling in reply to Tom Van Dyke
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              says:

              The weird thing is that Thomas signed on to Scalia’s dissent, which insisted at the top of its lungs that such laws are not only constitutional but necessary for a decent society, while saying “Stupid law.  I’d vote against it.  Still, no grounds to strike it down.”  Is there some etiquette against filing a separate dissent instead?Report

              • Avatar Tom Van Dyke in reply to MikeSchilling
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                Thomas did write a separate concurring opinion.  Why it’s necessary to employ locutions like “top of its lungs” is beyond me.

                 

                JOHN GEDDES LAWRENCE and TYRON GARNER,
                PETITIONERS v. TEXAS

                ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
                TEXAS, FOURTEENTH DISTRICT

                [June 26, 2003]

                Justice Thomas, dissenting.

                I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut,381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

                Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,”ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1.Report

              • Avatar MikeSchilling in reply to Tom Van Dyke
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                says:

                As I said, Thomas joined Scalia’s dissent (I conclude this from the words “I join Justice Scalia’s dissenting opinion.”), while sharing none of its arguments.   And Scalia’s dissent (which you haven’t quoted here) is near-hysterical.Report

              • Avatar James Hanley in reply to MikeSchilling
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                I’m inclined to agree. Ever since Romer Scalia seems to be in a panic that society will collapse if we can’t demonstrate our moral disapproval of teh gay seks.

                 Report

              • Avatar James Hanley in reply to MikeSchilling
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                says:

                Is there some etiquette against filing a separate dissent instead?

                No, none at all.

                And agreed with Tom that Thomas’s dissent is exactly a “stupid, but constitutional” claim.  I think that position is rather more common than generally recognized, justices just don’t always note their belief in the law’s silliness because it’s technically irrelevant to the legal argument.  If I was on the Court that’s what I would be thinking most times I upheld a regulation of interstate commerce, but there’d be no point in always saying it.

                That’s one of the benefits of concurrences and non-primary dissents–justices can use them for more casual statements less related to the specific legal argument.  For example, one of the concurring opinions in the Pentagon Papers case essentially said, “I concur with the legal reasoning of the opinion of the Court, but I write separately to make a polemical argument about how critical a free press is to democracy” (heavily paraphrased, of course).

                That said, I think Thomas was dead wrong on this one. He was approaching the Constitution from a “does it explicitly ban this governmental action” perspective, rather than a “does it clearly authorize this government action” perspective.Report

              • Avatar MikeSchilling in reply to James Hanley
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                says:

                And agreed with Tom that Thomas’s dissent is exactly a “stupid, but constitutional” claim. 

                Absolutely, and very clearly written as such.Report

          • Avatar Brandon Berg in reply to b-psycho
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            says:

            They’re judges, not kings. Their job is to rule on cases arising under federal law and the Constitution as they are written, not as they would like them to be. Once we abandon that principle, the Constitution is worthless. It might as well just say, “Congress shall do whatever the hell it wants, unless the Supreme Court says it can’t.” If they can disregard the ninth and tenth amendments, and the second as far as it applies to really scary guns, and the first as far as it applies to corporations, then they can throw them all out.

            Remember Gonzales v. Raich, when the “liberal” justices threw chronic pain patients under the bus because to do otherwise might jeopardize the federal government’s ability to regulate the frequency at which butterflies in Nebraska may flap their wings? Another great moment in Progressive history.Report

        • Avatar Will H. in reply to Brandon Berg
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          says:

          There’s also such a thing as “the dormant commerce clause.”
          As noted previously, I understand the statutes far more than I do the Constitution itself.
          And I can’t say exactly what dormant commerce considerations might be.
          But I understand the caselaw behind it.Report

          • Avatar Brandon Berg in reply to Will H.
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            says:

            Fun fact: The “dormant commerce clause” is actually the primary intended purpose of the commerce clause. Under the Articles of Confederation, the shipment of goods between states not directly adjacent to one another was being taxed and otherwise hindered by the states through which the goods passed en route. The purpose of the commerce clause was to prevent states from doing this, not to grant Congress broad powers to meddle in anything which could conceivably.have some effect on anything which might cross state lines.

            Madison discusses the commerce clause in Federalist 42. Note that there’s nothing whatsoever in there to support the ridiculous “Congress can do whatever the hell it wants because everything’s connected so everything kind of affects interstate commerce and the power to regulate X obviously entails the power to regulate all manner of things which are not X but might conceivably affect X” theory of the commerce clause–it’s all about keeping the states from interfering with interstate commerce.

             Report

        • Avatar Michael Drew in reply to Brandon Berg
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          says:

          There are things which are plainly unconstitutional, things which are plainly constitutional, and grey areas not fully specified. Only things which fall into the latter category are really up for legitimate debate.

          The Constitution specifically enumerates the powers of Congress for a reason. If they had wanted Congress to be able to pass whatever laws it felt like, and for the Court to decide which ones they liked and throw out the rest based on personal ideology, they would have just written that instead of specifying a detailed list of Congress’s powers. There’s a specific, very difficult process for amending the Constitution for a reason. If they had wanted the Supreme Court just to be able to decide for reasons of personal ideology that when the Constitution says up it really means down, they would have written that instead of specifying the actual amendment process we have.

          The butterfly effect interpretation of the commerce clause is just a hand-wavy rationalization for the Court ruling to uphold laws they like for personal ideological reasons.

          None of this is inconsistent with the obvious reality that ideology, and especially inertia, will play a part in how any constitutional scheme gets cashed out by living human judges.  You admit as much by admitting there are grey areas.  I was speaking generally – my claim was merely that ideology and inertia obviously have more than literally zero role.Report

  8. Avatar Brandon Berg
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    says:

    By the way, where is this post? The links imply that it should be on the front page between the Mad Men post and Planck’s post, but it’s not there.Report

    • Avatar Will Truman in reply to Brandon Berg
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      says:

      Off The Cuff posts go down a black hole whenever they get bumped off the front page. It’s a technical issue of some sort.Report

      • Avatar Brandon Berg in reply to Will Truman
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        Oh, are they only supposed to show up in the “Off the Cuff” section, and not on the main part of the front page? If not, it’s probably just an overselective where clause.Report

        • Avatar Will Truman in reply to Brandon Berg
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          says:

          The line between how OTC posts and comments count and mainpart posts an comments count is less than clear. Back when I ran a blog on Nucleus, the “miniposts” were considered part of a different blog and were separated accordingly. Here they are sort of part of the main blog, but sort of not. So the language in what should be included where is a little less straightforward). It’s a pretty low priority, as the discussion tends to be “Do we want OTC at all” rather than trying to get it to work perfectly.Report

  9. Avatar BlaiseP
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    says:

    Look, it’s just this simple.   If you don’t have insurance and you go to the hospital and you get 200,000 USD worth of treatment, mandated in law by EMTALA may I add, and those costs are transferred onto me by hidden costs loaded onto my treatment at the same hospital, covered by insurance I’m paying for —

    — do I have a case?   And doesn’t my insurance company have a case?

     Report

    • Avatar James Hanley in reply to BlaiseP
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      says:

      Blaise,

      See my point B, below.  In a nutshell, a proposed solution to a problem doesn’t become constitutionally allowable just because Congress created the problem in the first place.Report

      • Avatar BlaiseP in reply to James Hanley
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        says:

        So stipulated.   Doesn’t change the nature of my question.   Do I have a case or not?   SCOTUS considers more than the Constitution.   EMTALA has already been before SCOTUS in Roberts v Galen of Virginia, Inc and its constitutionality was not disputed.Report

      • Avatar Jesse Ewiak in reply to James Hanley
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        Yes, damn Congress mandating that hospitals treat even poor people like we’re a First World nation or something.Report

        • Avatar James Hanley in reply to Jesse Ewiak
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          says:

          Kind of misses the point, Jesse. If you’d be happier in a country where the government had no constitutional limits to its regulatory authority, that’s fine. But we don’t happen to live in that particular country at this time.Report

          • Avatar Jesse Ewiak in reply to James Hanley
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            says:

            The idea that health care is interstate commerce was so uncontroversial before, say, a couple of years ago, that Ronald Reagan’s Solicitor General  doesn’t see it as a big deal.

            Of course, now you’ve got a concerted effort by a bunch of right-wingers to take us back to the good ole’ days of 1889 when the workers shut up and took their low wages and liked it, but regardless, the idea that regulation of the private sector in this way was again, not a big deal until the last few years when regulation became the greatest evil across the land.Report

            • Avatar greginak in reply to Jesse Ewiak
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              says:

              Not to mention the Romneybot, along with most R’s, grand idea to fix our health care mess is to…..drum roll…….allow insurance companies to sell over state lines. The  argument here is that HC is not interstate commerce so the gov can’t regulate it and they want to fix HC by making it interstate commerce.Report

              • Avatar BlaiseP in reply to greginak
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                says:

                I wrote a handler for Blue Cross, part of the HIPAA compliance initiative.

                Here’s the Use Case:   A patient presents at Our Lady of the Lake Hospital in Baton Rouge, swollen appendix.   He’s got health insurance through BCBS of Illinois.   Hospital does appendectomy, submits claim through their standard BCBS pipeline, arriving as EDI at BCBS of Louisiana.

                HIPAA mandates health care transportability.   BCBS of LA routes the claim to a hub at the central association which routes it to BCBS of Illinois.   So far so good.

                Illinois franchise will pay I dollars for an appendectomy.   Louisiana will pay less L dollars.   So this handler goes through and determines it will only pay L dollars.   But if Illinois pays less and Louisiana pays more…. guess how much the hospital gets paid?Report

          • Avatar Michael Drew in reply to James Hanley
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            says:

            1. It’s hardly necessary that we live “in a country where the government ha[s] no constitutional limits to its regulatory authority” in order for that particular regulation to be within the constitutional limits to its regulatory authority.

            2. We do live in a country where the government has constitutional limits on its regulatory authority.

            …and 3. It’s not in evidence that that particular regulation is not within the constitutional limits on this government’s regulatory authority.  It depends upon what the Commerce Clause means.  I know you have an opinion on that, and it’s a valid one.  But so do other people, and theirs are valid as well.Report

  10. Avatar James Hanley
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    says:

    Three thoughts:

    A:
    One of the things that’s struck me about this case, and it came up in oral arguments, is the irony that the individual mandate could be unconstitutional while a much more extensive and invasive program–single payer–could be constitutional.  Somehow that seems to have been taken as evidence that the individual mandate must be constitutional. Of course that’s wrong on at least two levels.  First, the fact that an outcome is ironic doesn’t mean it’s constitutionally wrong. Second, single-payer is of doubtful constitutional legitimacy unless one accepts the radical constitutional revisionism of the Hughes Court.  The fact that arguable reinterpretations of meaning create future logical confounds shouldn’t really be all that surprising.

    B:
    I’m irritated by the argument that health care is special because everyone ultimately must participate in that market.  That’s true only because of previous laws that have been passed that require treatment of everyone who shows up.  My necessary participation in that market exists only because government has effectively mandated it from the supply end. It’s a bit precious then to say, “Oh, we must mandate it from the demand end, and we have the authority to do so, because we created a fuck-up when we mandated it from the supply end.”  It’s more than a bit precious when they don’t even take cognizance of how they created the original fuck-up, but pretend inevitable participation in health care markets is a fact of nature rather than a fact of institutional structure.

    C:
    If in fact the problem is that uninsured people are pushing their costs off on the rest of us, it’s a bit of a backwards solution to mandate that they buy health insurance, given that most of them don’t have it because they can’t afford it.  Oh, so then we will subsidize it for them…so why not just go straight to the subsidy and forget the mandate rigamarole?  Especially when we’re mandating minimum coverage in a way that drives up the price, further pricing people out of the market.  This is especially relevant to young people, who are mandated to buy more insurance than they need, since most generally healthy young people would do best to buy a high-deductible catastrophic injury policy, rather than one that covers every case of the sniffles.  What we’re really mandating is not individual coverage, but that the young folk pay for the coverage of the old folk.  Ironic or not, that works fine as a publicly funded social welfare policy, but it does create a “what’s the stopping point” problem as a commercial purchase mandate.

    The only admirable thing about this law is how well it works to build support for a national health care plan, just by virtue of its grotesque perversity.  From a strategic perspective the law is just fishing brilliant…or would be, if I thought Obama and his crew truly intended it to function that way, rather than it just being a sad compromise.Report

    • Avatar Kimmi in reply to James Hanley
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      says:

      “most generally healthy young people would do best to buy a high-deductible catastrophic injury policy, rather than one that covers every case of the sniffles”

      Cite me. I’ve got $5000 for a “possibly broken” ankle that turned out to be only sprained (so we’re talking one PCP visit, and one set of xrays). That’s the sort of injury that one can expect on a quasi-regular basis for a 20something. And we’re not even talking cysts, potential scarring of uterus, or any of the other hubub that regular doctor care can catch.(Doctor care that runs around $200 per visit without “insurance”).

      ami reading this wrong?Report

      • Avatar Murali in reply to Kimmi
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        says:

        $5000 for a possibly broken ankle is criminal. The reason that the price is so high is because insurance companies dominate the market for payment schemes.Report

      • Avatar James Hanley in reply to Kimmi
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        says:

        Kimmi,

        I probably shouldn’t have used the word catastrophic. I think that set a higher bar than I intended.  I meant that you should be able to buy a policy that didn’t cover every little ache and pain, but would cover things that had lower probability but higher cost, exactly like a broken ankle.

        As for things like uterine cysts, etc, I think there ought to be a variety of such policies, so that they can be tailored to the specific needs/desires of the customer.  As it turns out, men and women don’t have exactly the same needs, so their policies shouldn’t necessarily be identical.

        But what I have in mind is a guy I used to know whose gold-plated insurance enabled him to go to the doctor each time he had a cold–he knew the doctor couldn’t do anything for it, but it made him feel better just to go.  As a non-hypochondriac 25 year old I didn’t need that kind of insurance, it’s not what I would have chosen if I was paying out of pocket, and total insurance costs would have been reduced if I could have purchased that.

        It’s like car insurance–I drive used cars, so I don’t get the fancy low deductible covers everything insurance.  It wouldn’t make sense.  If I drove a new, still-not-paid-for Cadillac, then I’d get the covers-all-the-bells-and-whistles policy.Report

    • Nob Akimoto Nob Akimoto in reply to James Hanley
      Ignored
      says:

      So is your contention that laws mandating treatment should be undone and hospitals be given the right to refuse to treat people when they’re wheeled in?Report

      • Avatar James Hanley in reply to Nob Akimoto
        Ignored
        says:

        Nob,

        I’m not saying they should be. I’m not sure where I stand on the “should/should not” dimension.  My essential point here is that we used to not have such laws, and we could in fact have them again, and then this particular problem would go away.* I’m just saying it’s constitutionally dubious whether a government intrusion into the market can in fact create a constitutional justification for further intrusion into that market.
        __________________________
        *Yes, that would leave us with different political problems, the same ones that led to us passing these laws in the first place–that’s why I’m not taking a stand on the should/should not repeal them issue.Report

        • Avatar James Hanley in reply to James Hanley
          Ignored
          says:

          To clarify the possibility, the law could simply say that hospitals don’t have to treat anyone who doesn’t have proof of insurance.  I was talking about this with a friend today, and he said, “So you’d be required to carry an insurance card all the time? That’s not very libertarian.”  My response was, “No, I wouldn’t mandate carrying an insurance card; I’d just say that it was your choice, but if you weren’t carrying one, nobody would be required to treat you. If you’re out jogging and you have a heart attack, and you didn’t carry your proof of insurance, that’s the choice you made.”  It doesn’t necessarily mean nobody could treat you–if there was a charity hospital willing to take you, that’d be fine.  It just means nobody would be required to treat you.

          I have no moral qualms about this kind of rule. In fact I think it’s more morally laudable than a rule that says responsible people have to pay for the health care of irresponsible people.  But policywise I’m much more of a pragmatist than a moralist, and I’m unsure whether the practical outcome would be better or worse than the current situation, so I’m agnostic about promoting that approach.Report

          • Avatar DensityDuck in reply to James Hanley
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            says:

            If it’s a civil rights violation to require photo ID at a polling place, then I can’t imagine the shitstorm that would erupt if you needed an ID card to get medical treatment even in the event of life-threatening conditions.Report

            • Avatar James Hanley in reply to DensityDuck
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              says:

              As a practical political matter, you might be right.  But logically, it shouldn’t be so, because you have a constitutionally guaranteed right to vote; you don’t have a constitutionally guaranteed right to receive any kind of product whatsoever without being able to demonstrate that you can pay for it.Report

            • Avatar Murali in reply to DensityDuck
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              says:

              In Singapore, before we are issued a polling card, we present out photo ID (with barcode) at the polling station. I didn’t know that my civil rights were being violated.Report

              • Avatar James Hanley in reply to Murali
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                says:

                But your civil rights in Singapore may not be the same as our civil rights in the U.S.Report

              • Avatar Murali in reply to James Hanley
                Ignored
                says:

                Wait, were you making a legal argument or a moral argument?Report

              • Avatar James Hanley in reply to Murali
                Ignored
                says:

                I was making the legal/constitutional argument.  Our Constitution ensures a right to vote, but not the right to receive health care you can’t pay for (irrespective of whether it should or not).

                That said, I struggle with the idea that requiring ID is either a moral violation or a violation of civil rights.  On a practical level, voter fraud is minimal enough in this country that I think the demands for voter ID are a bit of silly hysteria. And there is the factual reality that the law would disproportionately affect the poor, who are disproportionately minority. On the other hand, it’s simple enough for states to create IDs that are identical to drivers’ licenses, just without it actually authorizing the person to drive–lots of states already do that, and the cost can, and should, be minimal.  So overall I just think both sides on this issue are being quite ridiculous.

                But as a practical political matter, about erupting shitstorms, Duck’s probably right.Report

              • Avatar MikeSchilling in reply to James Hanley
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                says:

                So overall I just think both sides on this issue are being quite ridiculous.

                Both the side trying to suppress votes and the side trying to prevent that are being ridiculous?Report

              • Avatar Kimmi in reply to James Hanley
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                says:

                James,

                yeah, cost is “relatively minimal”. Defined as losing your job, for a lotta folks. Maybe you never dealt with PennDOT before?Report

          • Nob Akimoto Nob Akimoto in reply to James Hanley
            Ignored
            says:

            Not to put too fine a point on it, so basically…this is a “fuck the poor” approach to healthcare, with an added dose of “well he did have insurance, but he should’ve had it on hand when he collapsed while getting the morning paper” ism…lovely world. Glad it’s not the status quo.Report

          • Avatar Patrick Cahalan in reply to James Hanley
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            says:

            I have no moral qualms about this kind of rule.

            I do, because it puts first responders in an impossible moral quandary.

            You can’t tell someone who got into being an ambulance driver or an EMT or a firefighter or a cop that they aren’t allowed to help people if those people can’t pay.  You’d put half the emergency responder workforce out on PTSD leave within a couple of years.Report

            • Avatar Kimmi in reply to Patrick Cahalan
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              says:

              Anyone who isn’t on insurance and does not have a “Do not treat” order for the hospital is fiscally irresponsible — I can’t say criminally so, but we do have steep fiscal penalties for those people.Report

            • Avatar Michael Drew in reply to Patrick Cahalan
              Ignored
              says:

              Yeah, this.  You’re not automatically in the market because the law says a provider must treat you.  You’re automatically in the market because you could be critically injured at any moment, and the prevailing ethics of the medical enterprise say (at least something like) that you must give a person who is critically injured the treatment they need to get them out of danger and on their way to beginning to recover.  This isn’t an artifact of the law, it’s an artifact of society itself.  The law didn’t put these norms in place, though it does obviously standardize and enforce them.  It’s also entirely appropriate for it to make accommodations that reasonably take these contours of the society it governs into account.Report

        • Nob Akimoto Nob Akimoto in reply to James Hanley
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          says:

          When the Constitution was drafted the most a medical practitioner could do was 1. dose you with some dubious collection of pills and alcoholic tinctures, 2. whip off your leg, 3. bleed you, 4. worm you, 5. perhaps pray for you and “rectify” your humours.

          Nowadays we have such a need for specialized knowledge that even a GP has trouble keeping up with the interpretation of test results (and they doctors of medicine!) much less the average patient. Moreover, there’s all sorts of other conditions that make perfect market pricing to be near impossible.

          That is to say: I dunno if the insights of Mr. Madison or Mr. Hamilton, however prescient, are particularly useful when we’re discussing  a market they couldn’t even have dreamt of existing.Report

          • Avatar Kimmi in reply to Nob Akimoto
            Ignored
            says:

            not Out West, at least! There the doctors tended to be half – Indian taught, half medicine man. Not that that might save you if you got a broken leg… but at least they wouldn’t bleed you! And they had willowbark tea, and a buncha other things that actually worked, if in unpredictable ways.Report

    • Avatar DensityDuck in reply to James Hanley
      Ignored
      says:

      “My necessary participation in that market exists only because government has effectively mandated it from the supply end.”

      I think Doctor Saunders would take issue with that statement.Report

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