Supreme Court Bound! Health Care Reform Law Unconstitutional

[boedicca]

He ruled on only those portions of the law he reviewed and indicated he was using the "tried and true" conservative standard regarding those provisions.

He did not review the entire law; his ruling is not going to stand as the definitive word on Severability. The judgment includes that he didn't have enough information to rule on the entire law.

I don't know for sure and I'm way out of my league debating fine terms of law with our resident legal beagles here, but the way I'm understanding this so far is that the judge dug out a portion of the bill that he judged to be clearly unconstitutional and left the rest as it was.

Pretty much the same thing was done with the Arizona law--a judge dug out the couple of phrases he saw as violation of rights or some such, and then let the remainder stand.

It seems that Arizona has chosen to appeal that judge's decision and will proceed all the way to the Supreme Court if necessary to restore the components the judge nixed. The Arizona Legislature doesn't seem interested in reversing the rest of it at this time.

It will be interesting to see if the Obama Administration will appeal the judge's ruling. I suppose however, if a subsequent Congress repeals the whole law, that would be moot.

You understand it correctly.

And it's pretty much a given that the Administration will appeal, as the judge indicated in his order. It's an issue of first impression, meaning the exact underlying legal concepts they're arguing have never been decided in our courts before. These are the cases most likely to go all the way - but it's got a long way to go before it gets there.

Then we are in violent agreement. The judge ruled on only a portion of the bill, and is leaving the rest for whomever is faced with evaluating the entire thing.

 

[boedicca]

He struck down the single most necessary component in the bill. Without the means to force everybody to participate the bill is unworkable and unacceptable to the health insurance industry and is no longer a "universal" health care bill. Meaning is does nothing for the dems. Nothing at all. It doesn't finance the poor on the backs of those who can afford coverage, it doesn't rescue medicare, it basically dismantled the entire premise the bill was forged around.

Most people would just continue buying private insurance and ignore the whole thing unless the government's plan was actually cheaper.

And the states will definitely balk at having to erect exchanges if participation is low.

The bill is bankrupt without this provision in force.

The bill has ALWAYS been bankrupt, yet that didn't keep Congress from passing it under the pretext of a faked CBO score.

 

[loosecannon]

This is nonsense on its face.

No it's reality. You are either another partisan who lives in a maze of partisan lies, a technician who can't see the forest for the trees or you can't handle the truth.

That's cool, the legislation was designed to pull the wool over your eyes.

Meanwhile if what I said wasn't true there is no way that even a pretense of deficit reduction could have been credited to this bill, and deficit reduction was credited to this bill.

How do you reduce the liability exposure of the federal government (reduce the deficit) if you don't reduce costs and don't pull some slight of hand trick like forcefully enrolling folks who don't need much healthcare into the system paying rates above market value?

Learn to read between the lines, kid. You are embarrassing yourself.

 

[loosecannon]

Oh Boy!

Health-reform advocates have little to fear from judge's ruling

Washington Post Staff Writer
Monday, December 13, 2010; 10:46 PM

U.S. District Judge Henry E. Hudson, a George W. Bush appointee (and part-owner of a Republican campaign-consulting firm that fought the health-care overhaul legislation), has, as expected, ruled the individual mandate unconstitutional. So why are reform advocates so unexpectedly pleased?

There are two reasons, but first, let's put this into context. Hudson's ruling is the third from a district court so far. Previously, Judge Norman Moon found the mandate constitutional, and so did Judge George Steeh. Steeh and Norman were Clinton appointees, which is to say that the rulings have been proceeding along predictably partisan lines.

Hudson ruled against the government, but he didn't stop it. He refused the plaintiff's request for an injunction against the legislation's continued implementation.

That means the government can carry on setting up the legislation even as the legal process continues to work itself out. And, second, he refused to overrule anything but the individual mandate.

The real danger to health-care overhaul is not that the courts will strike down the individual mandate. That would be a problem, but there are a variety of ways to restructure the individual mandate such that it doesn't penalize anyone for deciding not to do something (which is the core of the conservatives' legal argument against the provision).

Paul Starr, who worked on Bill Clinton's effort to reform the health-care system, has proposed giving people the right to opt out of the mandate if they agree to be ineligible for the subsidies or insurance protections for five years. This policy problem, like most policy problems, can be worked out.

The danger was that, in striking down the individual mandate, the court would also strike down the rest of the bill. That's exactly what the plaintiff had asked Hudson to do. But the judge pointedly refused, noting: "The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501."

Health-reform advocates have little to fear from judge's ruling

This looks like a political firestorm in the making.

Are all judges partisan activists, I ask you?

 

[Jroc]

I still don't get the resistance to requiring people to have some sort of insurance coverage. Isn't it all of the extreme right on this site who are always crying about personal responsibility and not wanting to have to pay for someone else's bills?

Well you'd think you'd be in favor of ensuring that those "deadbeats" pay their own way for once.

What are you talking about? Requiring healthy people to buy private insurance is a subsidy for sick people and Medicare. It's exactly the opposite of what you describe.

no.. it's to make sure that the good parts of the law get paid for. plain and simple. it's called spreading around the cost. there are many such affirmative requirements. thinking this one is separate and apart seems disingenuous.

Good parts of the Law...This stupid law was just a bunch of thrown together payoffs, it's not well written, it's bullshit. Anyway let me ask you this...Do you think these politicians should actually read the Bill before they pass it? Why is it that certain people judge a law or mandate based on the stated intention of the law and will defend it based on that intent?


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[jillian]

unless your kid isn't being denied coverage b/c of a pre-existing condition.

unless you have coverage when you wouldn't have before.

unless your kid in medical school or law school is still covered under your plan.

unless you are one of the people who can't be dumped from their insurance coverage after getting diagnosed with an "expensive" illness...

 

[loosecannon]

unless your kid isn't being denied coverage b/c of a pre-existing condition.

unless you have coverage when you wouldn't have before.

unless your kid in medical school or law school is still covered under your plan.

unless you are one of the people who can't be dumped from their insurance coverage after getting diagnosed with an "expensive" illness...

so nationalize health care instead of nationalizing health insurance.

Any "reform" that doesn't reduce health care costs by 30% is a bum deal certain to satisfy almost nobody.

 

[007]

Health-reform advocates have little to fear from judge's ruling

This looks like a political firestorm in the making.

Are all judges partisan activists, I ask you?

I saw this too, but really, it makes absolutely no difference at all. Look at the liberal whack job that just got appointed to the S.C., Sotomayor. If political ideologies were to exempt judges from being judges, we wouldn't have any at all.

 

[The Rabbi]

unless your kid isn't being denied coverage b/c of a pre-existing condition.

unless you have coverage when you wouldn't have before.

unless your kid in medical school or law school is still covered under your plan.

unless you are one of the people who can't be dumped from their insurance coverage after getting diagnosed with an "expensive" illness...

The last of course is illegal, not that I would expect you to know that, "counselor".
ALl of those mandates have served to drive up costs as government has mandated insurers take more risk. So if you had insurance before and didnt fall into one of those categories you will now find yourself with an almost unaffordable premium.
This is typical of the lib mindset that "protects" a few by punishing everyone else.

 

[goldcatt]

That is way too much limbo. That's a trainwreck for the health care programs themselves.

I don't have much if any sympathy for them in this situation. They're the ones who bought and paid for this scheme over any other that could have been enacted with far better results, they're the ones who stand to make a killing if it stays on the books, tough luck if they didn't see these challenges coming and plan appropriately. The law only bends so far for money, and ideally at least in the Judiciary it doesn't bend for money at all.

E.D. VA and the 4th Circuit is what's called a "rocket docket", if it makes you feel any better. They have a tendency to fast track issues like these through the process and kick 'em on up to the next level fast in judicial terms. But even a rocket docket can't ignore the procedural rules and time frames, and they must hear the full argument and provide appropriate process.

 

[CrusaderFrank]

Obama said he's "itching for a fight" who will he ask to fight for him, Mike Tyson?

 

[Intense]

Judicial Despotism

"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." --Thomas Jefferson to Abigail Adams, 1804. ME 11:51

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." --Thomas Jefferson to William C. Jarvis, 1820. ME 15:277

"In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow... The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." --Thomas Jefferson to Spencer Roane, 1819. ME 15:212

"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt." --Thomas Jefferson to Edward Livingston, 1825. ME 16:114

Search "Thomas Jefferson on Politics & Government"

you know he lost that battle, right?

it's all well and good to look at what some politicians said 200 plus years ago, but it isn't law...

and it's barely authoritative

again, please read Marbury v Madison.

Sadly I have. Until either 5 Justices have the Balls to reverse bad precedent, or an Amendment when the people wake up to the bullshit scam that was perpetuated on them, we will suffer from that injustice. Until that time, your argument is justified, but only by the force of the Court, right and wrong have nothing to do with it. So much for 3 Equal Branches.

 

[Greenbeard]

How do you reduce the liability exposure of the federal government (reduce the deficit) if you don't reduce costs and don't pull some slight of hand trick like forcefully enrolling folks who don't need much healthcare into the system paying rates above market value?

To repeat the bit of my post you apparently skipped: half of the newly insuring are entering existing public insurance programs, the other half are entering private coverage. Of those who are newly entering private coverage, the majority will be subsidized. Their personal contribution will be determined only by their income, unless they choose to buy a more expensive plan than the one to which the subsidy value is pegged, in which case they pay the difference themselves.

If the law were being financed primarily through a cost shift to private premiums, paid in private dollars, it wouldn't cost $900 billion in public dollars in the first decade. And there would be no--or very limited--subsidies for private coverage. And young, healthy people wouldn't be able to satisfy the mandate simply by buying catastrophic coverage.

The mandate is not a financing mechanism. Its purpose is to replace medical underwriting as the primary deterrent to adverse selection. Yes, deterring adverse selection is motivated by the desire to keep costs from ballooning (i.e. altering the composition of risk pools to the point that they're composed only or mostly of the sick). But the influx of newly insured is being paid for primarily through public dollars; hence the price tag of the law.

How do you lower the deficit? By raising revenue. Notice how one of the debt commission's biggest suggestions was limiting the tax exemption for employer-sponsored coverage? ACA does that (and it does so more and more as time goes on, making it a huge revenue source in the future). The commission simply wanted to do it more and faster, raising even more revenue. Regardless, when your primary revenue source is designed to grow more quickly than your primary expenditure, voila, your deficit shrinks--that's why ACA looks so good in the second decade. The revenue source cuts money out of the health care sector more quickly than the subsidies put it back in. The first 8 years is a patchwork of smaller revenue sources to get to that point but that's where the ACA leads; by the end of the decade the excise tax on plans will dominate and you'll begin to see a bit of your cost curve bending.

I'm not sure where you got the idea that there a bunch of uninsured rich people out there who don't have employer-sponsored coverage and are going to be coerced into exchanges through a 2% income tax penalty. But no, that's not the idea here. Insurance pools will be propped up via huge influxes of public money, as well as potential risk adjustment payments from their peers. Not the rates of the unsubsidized. Remember, for a while at least, exchanges will still be the smallest source of coverage in the country.

 

[Intense]

It's a 3 ring circus fighting for the right for everyone to purchase the $500 Band-aid. No One asks or considers why the Band-Aid costs $500, that just goes right over their heads. The fact that they are now forced to buy that $500 dollar Band-aid, whether they need id, or want it, goes right over their heads too. So much for Liberty and Justice. You give Love a bad name Folks. Control Freaks in denial.

 

[Greenbeard]

It's a 3 ring circus fighting for the right for everyone to purchase the $500 Band-aid. No One asks or considers why the Band-Aid costs $500, that just goes right over their heads.

I'm all for addressing the inflated reimbursement rates providers are negotiating for themselves (which is also why I think interstate purchasing is a potentially destructive idea). The primary way health reform tried to tackle that was through the creation of a robust public option but that was scrapped. I wouldn't mind seeing more states experiment with all-payer rate setting.

 

[Intense]

It's a 3 ring circus fighting for the right for everyone to purchase the $500 Band-aid. No One asks or considers why the Band-Aid costs $500, that just goes right over their heads.

I'm all for addressing the inflated reimbursement rates providers are negotiating for themselves (which is also why I think interstate purchasing is a potentially destructive idea). The primary way health reform tried to tackle that was through the creation of a robust public option but that was scrapped. I wouldn't mind seeing more states experiment with all-payer rate setting.

But that would interfere with the Government Revenue Scheme.

 

[ScreamingEagle]

unless your kid isn't being denied coverage b/c of a pre-existing condition.

unless you have coverage when you wouldn't have before.

unless your kid in medical school or law school is still covered under your plan.

unless you are one of the people who can't be dumped from their insurance coverage after getting diagnosed with an "expensive" illness...

so nationalize health care instead of nationalizing health insurance.

Any "reform" that doesn't reduce health care costs by 30% is a bum deal certain to satisfy almost nobody.

Yeah....make everybody join the Federal Employees Health Benefit Plan....the same one that the Congress members use....

...but....oops.....that would probably make that program go broke too.....much like Medicare/Medicaid....

...and you know those congressmen wouldn't cotton to that...not if they are treated with the same lack of treatment as everybody else...but hey.....equal maltreatment for all....

 

[Jroc]

unless your kid isn't being denied coverage b/c of a pre-existing condition.

unless you have coverage when you wouldn't have before.

unless your kid in medical school or law school is still covered under your plan.

unless you are one of the people who can't be dumped from their insurance coverage after getting diagnosed with an "expensive" illness...

Those are all easy fixes without the federal government taking over the health care system, and I'm sure that medical student is going to love being a federal employee, which is what will eventually happen once the government, takes over completely. It's just going to be cheaper for business to drop their coverage, pay the fine and let people go to the government plan. So what exactly does the government do efficiently? Like I said these politicians don’t read the damn bill they put a little piece here to pay off this guy, a little piece here to pay off this interest group, and we all get screwed in the end. Oh but it sounds so nice “health care for all”

 

[The Rabbi]

unless your kid isn't being denied coverage b/c of a pre-existing condition.

unless you have coverage when you wouldn't have before.

unless your kid in medical school or law school is still covered under your plan.

unless you are one of the people who can't be dumped from their insurance coverage after getting diagnosed with an "expensive" illness...

Those are all easy fixes without the federal government taking over the health care system, and I'm sure that medical student is going to love being a federal employee, which is what will eventually happen once the government, takes over completely. It's just going to be cheaper for business to drop their coverage, pay the fine and let people go to the government plan. So what exactly does the government do efficiently? Like I said these politicians don’t read the damn bill they put a little piece here to pay off this guy, a little piece here to pay off this interest group, and we all get screwed in the end. Oh but it sounds so nice “health care for all”

That would already have happened had the administration not started its "waiver of the week" program, allowing companies to keep their existing health plans that somehow didnt pass muster.
Remember when he said "if you like your insurance, you can keep it"? I guess he lied then too.

 

[Foxfyre]

unless your kid isn't being denied coverage b/c of a pre-existing condition.

unless you have coverage when you wouldn't have before.

unless your kid in medical school or law school is still covered under your plan.

unless you are one of the people who can't be dumped from their insurance coverage after getting diagnosed with an "expensive" illness...

Those are all easy fixes without the federal government taking over the health care system, and I'm sure that medical student is going to love being a federal employee, which is what will eventually happen once the government, takes over completely. It's just going to be cheaper for business to drop their coverage, pay the fine and let people go to the government plan. So what exactly does the government do efficiently? Like I said these politicians don’t read the damn bill they put a little piece here to pay off this guy, a little piece here to pay off this interest group, and we all get screwed in the end. Oh but it sounds so nice “health care for all”

Since the Federal government has not organized or managed ANYTHING related to social engineering (or much of anything else) that did not turn out to be more expensive, less efficient, an increasing problem, and largely unsustainable as the years passed and the negatives increased, I can't understand how intelligent people can think that the federal government managing or directing healthcare would be any different.

But if they were going to do it, all the Federal Government had to do was create an assigned risk pool for the difficult to insure people just as most states have assigned risk pools for general liability, work comp, and other types of necessary insurance for those who can't get insurance throught the private market.

It is not the Federal government's business if people choose not to buy any kind of insurance....BUT.....it also should not be the Federal government's business to mandate that anybody get the benefits whether or not they buy the insurance.

Before the government got involved, uninsured people with no money got emergency healthcare just as they do now, and that included hospitalization and surgery or other expensive procedures. But they were also required to sign a note and pay for that care even at $10/month if that is all they could afford. So people did not abuse the system and everything was much more affordable. From day one that Medicare and Medicaid went into effect, there was abuse of the system by both patients and healthcare providers. And the costs began unnaturally and excessively inflating and have been doing so ever since.

There are many ways to address the problems without the federal government taking over management of the whole system.

Congress should now repeal the whole law and start over using common sense to address the hard core uninsurable and turn the rest over to the free market.