Thursday, March 29, 2012

Sauce for the Gander: Are liberals going to get a taste of their own medicine on Obamacare?

It appears the Obama administration didn't fare too well in the oral arguments on Obamacare yesterday, what with justices asking mostly critical questions and Obama's solicitor general choking in broad daylight in the most high profile case before the highest court in the land.
"This was a train wreck for the Obama administration," Toobin said Tuesday. "This law looks like it's going to be struck down. I'm telling you, all of the predictions, including mine, that the justices would not have a problem with this law, were wrong."
So points out Maggie Gallagher.
So ... Go through the hard slog of getting a law passed (like, say, Proposition 8 in California) only to have progressives go to court and get it struck down on the grounds it offends some radical new norm no author of our Constitution would recognize. 
Since at least 1973, when Roe v. Wade struck down anti-abortion laws in all 50 states, progressive elites have looked on the Supreme Court as their wholly owned subsidiary -- a trump card only they get to play. 
The Supreme Court's job, in their view, is to strike down popular laws supporting traditional moral norms -- especially sexual norms -- that progressives would have trouble winning at the ballot box. The discovery and invention of new rights, from abortion to gay marriage, was their turf, their "Get Out of Democracy Free Card." 
Or so they thought. 
... Now, liberal Democrats are looking straight into the abyss of a world where courts can step in and take away what they fought hard for at the ballot box. 
Perhaps they will suddenly develop a little sympathy for the conservative half of the country whose laws and norms they go to court to throw out? 
Don't count on it.
Read the rest here.

39 comments:

One Brow said...

Some conservative have no sense of perspective at all. Liberals have been disappointed in a variety of rulings in the past three decades. If the Affordable Care Act is struck down, they will be disappointed, but it's hardly new.

It's really amusing to se the whining though, even when you think you will prevail. Poor, persecuted Christians not be allowed to force their religion on others.

KyCobb said...

Don't count your chickens yet. Kennedy and Roberts are still in play. And no, we can't really have sympathy for those who want to pass laws to harm other people.

Lee said...

> Don't count your chickens yet. Kennedy and Roberts are still in play.

Are you speculating?

One Brow said...

Are you speculating?

Until the decision is released, everyone is speculating. For all we know, the vote could be 9-0 in either direction. Everyone is speculatin based on previous kknowledge.

KyCobb said...

Lee,

Yes, all we can do is read tea leaves right now. We won't know anything for sure until the opinions are released.

Lee said...

Then let me speculate too...

ObamaCare will get at least four votes: Breyer, Sottomayer, Kagan, Ginsberg.

KyCobb said...

Lee,

Close, except one of them is Sotomayor. Everyone expects Thomas, Scalia and Alito to vote against it. That only leaves Kennedy and Roberts as the swing votes.

Lee said...

> Close, except one of them is Sotomayor.

Didn't I say that?

Lee said...

I told my Republican buddies that I would vote for Romney if SCOTUS gives ObamaCare the dirt nap.

The bill cannot pass without the help of Republican appointees.

If Republicans cannot appoint a judge who believes in the Constitution, then what good are they?

KyCobb said...

Lee,

I was just correcting the spelling of Sotomayor's name.

"If Republicans cannot appoint a judge who believes in the Constitution, then what good are they?"

The ACA doesn't actually violate the Constitution, which is why I still have hope SCOTUS won't strike it. Virtuallyt noone doubts that Congress could raise our taxes to provide us healthcare; that's what Medicare does. So how can it violate our rights to give us the option to buy private health insurance instead of paying a tax?

Lee said...

> I was just correcting the spelling of Sotomayor's name.

I git so confuzed.

> The ACA doesn't actually violate the Constitution, which is why I still have hope SCOTUS won't strike it.

Apparently, that's a matter of opinion, and Justice Scalia apparently doesn't share it.

> So how can it violate our rights to give us the option to buy private health insurance instead of paying a tax?

Are you playing dumb? You're a lawyer, right?

The issue, as best as I understand it, being trained as a trombone player and all, has to do with the scope of Congress' power. As Scalia had to remind the government, Congress' powers are not unlimited, but enumerated. Where it is true (as Linda Greenhouse and Dahlia Lithwick pouted) that Congress' powers to regulate commerce are "vast", vast doesn't mean unlimited.

With the individual mandate, what Congress is doing is not regulating commerce, but regulating non-commerce. Refusing to buy health insurance is not commerce; it is a refusal to engage in commerce.

And if Congress has the power to make us buy a product from a private vendor, what power don't they have? Scalia and Kennedy asked the solicitor to suggest a logical boundary on the powers of Congress should this pass. His response was to stutter and stammer.

So I would conclude as stated that the law's constitutional is at least controversial and a matter of opinion, and that the case against the law has merit.

But I'm just a poor trombone player. What do I know?

KyCobb said...

Lee,

"With the individual mandate, what Congress is doing is not regulating commerce, but regulating non-commerce. Refusing to buy health insurance is not commerce; it is a refusal to engage in commerce."

I know that is the way the law is spun by its opponents. I was pointing out that another way to view it is that Congress passed a tax, but gives people the option to purchase an insurance policy rather than pay the tax. Since that would clearly be constitutional, the conservatives are elevating form over substance, thus they are merely being obstructionist rather than actually limiting the power of Congress.

Lee said...

> I know that is the way the law is spun by its opponents.

Yep. The same way I spin when I observe the moon orbits the Earth. If you don't buy something, you are not participating in commerce. Congress regulates commerce. You draw the conclusion.

> I was pointing out that another way to view it is that Congress passed a tax, but gives people the option to purchase an insurance policy rather than pay the tax.

Talking about spin, I'm lovin' the spin you're in. Congress isn't giving anyone the option to purchase an insurance policy; it's giving the mandate to purchase an insurance policy. There's a difference, or so some of us, including Scalia and Kennedy, agree.

A better way to explain it is the Democrats didn't think they could sell a tax increase, so they painted it up as a free enterprise thing, but with this little mandate that made participation mandatory. So sorry the gambit didn't fly through unnotices.

KyCobb said...

Lee,

You don't have to purchase insurance; you can pay the fine instead.

Lee said...

In other words, you can break the law. The question is whether the Congress has the right to make the refusal to buy a product illegal.

KyCobb said...

Lee,

"In other words, you can break the law."

No, if you pay the fine that is compliance with the law as well. You pay the fine (which is really a tax) or you have the option to purchase insurance. If not purchasing insurance was a criminal act and the fine was a criminal penalty, the IRS could not automatically assess it; the goverment would have to prosecute you and prove at trial beyond a reasonable doubt that you did not purchase health insurance.

I compare it to the deduction you get on interest paid for a home mortgage. Its not a violation of the law to not borrow money to buy a home, you just have to pay higher taxes if you don't.

Lee said...
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Lee said...

Even Justice Ginsburg shot down the notion that the penalty was a tax. "This is not a revenue-raising measure," Ginsburg said, 'because, if it’s successful, nobody will pay the penalty, and there will be no revenue to raise."

Verrilli wanted to argue that it was two things in one: a tax and not a tax. The justices did not permit Verrilli to refer to it as a tax. Even Justice Breyer corrected him. "Why do you keep saying tax?" Breyer wanted to know.

And regarding the "optional" tag you keep wanting to place on the mandate, Justice Ginsburg repeatedly referred to the mandate as a "must-buy provision."

"Must-buy" does not sound optional.

KyCobb said...

Lee,

"Must-buy" does not sound optional.

Actually, not only is the insurance optional, paying the fine is optional as well. The Act doesn't allow the IRS to garnish your wages, put a lien on your property or even make collection calls. If you don't purchase a policy or pay the fine, all the IRS can do is intercept your tax refund. If you reduce your withholding low enough to ensure you don't overpay your taxes, you won't have to purchase insurance or pay the fine.

Lee said...

Are you seriously arguing that, by disobeying the individual mandate, someone would not be breaking the law?

KyCobb said...

Lee,

Yes I am. I got to knock thousands of dollars off of my income tax owed for my adoption expenses. Did you break the law by not adopting? No, you just had to pay more income tax. Same difference; you can satisfy the law by either purchasing insurance or paying the fine.

Lee said...

Then what part of the Constitution gives the Congress the power to impose the obligation/fine?

Are they merely expressing their desire? Congress passed, what, a fervent wish? They rule, they speak, but we are not obligated to do anything?

I don't want to hear about how minimal the fine is. That's today. Once the principle is established that they have the authority to impose such fines, there's no telling where it will go, and no evidence that it will stop going.

You might be able to see that if it was a right you cherished under assault. "We are issuing a mandate against writing articles critical of the President during this time of war. Your First Amendment rights are still intact; you don't *have* to quit writing such articles. But if you don't, you just have to pay this little fine. That's all. Such a small fine. Really, it's just a tax, no more."

Not that this scenario is so far-fetched. There were a lot of journalists in jail for speaking out against our involvement in the Great War. Progressive that he was, Woodrow Wilson wasn't very fond of the Constitution.

Lee said...

http://reason.org/news/show/health-care-mandate-reason-rupe-pol

> Legal experts have suggested that if Congress has the power to require individuals to buy health care insurance, it may also mandate that Americans buy broccoli. The Reason-Rupe poll finds 87 percent of Americans believe Congress does not have the power to require the purchase of broccoli, while 8 percent say Congress can force you to buy vegetables.

It's that 8 percent that scare the heck out of me. That wouldn't be you, would it, Ky?

One Brow said...

Then what part of the Constitution gives the Congress the power to impose the obligation/fine?

Everyone is entitled to health care, and is thus protected by the health care system. We all participate in the health care market to that degree. This includes when you are traveling across states.

The Supreme Court agreed that, under the commerce clause, the federal government could tell a farmer not to grow wheat in his own field. The health care mandate, for you to paqy for the health insurance you already receive, is already less intrusive than other laws.

Lee said...

> Everyone is entitled to health care, and is thus protected by the health care system. We all participate in the health care market to that degree. This includes when you are traveling across states.

Which article or amendment of the Constitution guarantees health care as a right?

Lee said...

> The Supreme Court agreed that, under the commerce clause, the federal government could tell a farmer not to grow wheat in his own field. The health care mandate, for you to paqy for the health insurance you already receive, is already less intrusive than other laws.

Nonetheless, they weren't ordering the farmer to participate in commerce. Had they done so, they would have established the precedent of the Commerce Clause also allowing Congress to regulate non-commerce.

No one questions that precedent since the New Deal has given Congress vast regulatory powers. What we're going to discover with this case is whether vast = unlimited.

One Brow said...

However, you already participate in the health-care market, simply by living. The government can not change that, it can only deal with the reality (or not deal with it).

One Brow said...

Which article or amendment of the Constitution guarantees health care as a right?

I don't recall saying it was enumerated in the Constitution.

So, it would be the Tenth, which reserves to the states or the people any unenumerated rights not possessed by the federal governemnt. It makes no sense to say the states have a right to health care, so it must be an individual right.

KyCobb said...

Lee,

I don't think the government can force you to buy broccoli, and the government can't force you to buy health insurance. It can give you a tax deduction if you do buy broccoli or health insurance, just like it already gives us tax deductions for purchasing all sorts of things.

I think the opponents of the Act, like libertarians, have a different idea of what "liberty" is than the Founders. A free society doesn't mean you can do anything you want. A society of free men is self-governing, meaning that the people, through our elected representatives, make the laws. While the Bill of Rights puts certain restrictions on the federal government to protect the rights of minorities and ensure the people have a meaningful ability to participate in their governance, such as the freedom of speech, the primary protection we have against tyranny is the fact that we the people are the government. If we don't like the laws the government passes, we can replace our elected representatives and change the laws. So this notion that the Act is the start of a slippery slope which will result in a tyrannical government forcing us to eat broccoli and exercise is, in my mind, overwrought. Since, with minor changes in wording of the Act, even conservatives would admit Congress would have the power to give us a tax break for buying health insurance, if SCOTUS strikes the Act its not protecting our liberty but merely elevating form over substance.

Lee said...

> However, you already participate in the health-care market, simply by living.

Then I'll ask the question one of the justices asked: I'm going to die someday too. Does that mean Congress has the right to make me do business with a funeral home. I have to participate in the food market too. Does Congress have a right to make me buy food? Or particular types of food? I have to buy shoes too. Can Congress make me buy them?

What you're saying is that the Commerce Clause gives Congress the power to compel someone to engage in specific forms of commerce. That will be a new reading of the Commerce Clause, if that is the way the Court ultimately rules.

> I don't recall saying it was enumerated in the Constitution.

Everyone is certainly entitled to seek health care. But the Constitution does not obligate a second party to pay for it.

Lee said...

Ky, I don't disagree with much of what you just said, but I do have to point at one thing. What this issue is about is the *limits* of government power. I guess the question before us now is, are there any?

If the government has the power to order our purchases, freedom is done.

You say, if we don't like the law, we can change it. You know, you liberals are very funny guys. On the one hand, you tell us, well, if you don't like the law, then get enough folks to vote the way you like and change it back. And then you tell us, we can't turn the clock back. Which is it?

There are some things that become law that should never have been law in the first place, because the very act of passing them usurps the power of the states or the people.

That's the issue being decided here.

At some level, you understand this, since you admitted that the minorities must be protected from the majority, and presumably you don't favor overtuning Marbury vs. Madison. Constitutional rights and judicial review are part of the checks and balances that keeps Congress and the President from overreaching their authority as granted by the Constitution. So voting the scoundrels out is not our only protection from an over-ambitious legislature.

> Since, with minor changes in wording of the Act, even conservatives would admit Congress would have the power to give us a tax break for buying health insurance, if SCOTUS strikes the Act its not protecting our liberty but merely elevating form over substance.

But they wrote it the way they had to write it in order to get it passed. If they had made the penalty into a 'tax', for example, it probably would not have passed -- it passed only by the slimmest of margins as it was. I don't agree this is form over substance, but if it is, maybe form is important, too.

Lee said...
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Lee said...

It seems to me that if this bill stands, we have changed from being a country of people who have a multitude of unspecified powers and government with enumerated powers, into a country where the government has a multitude of unspecified powers and a people who have enumerated powers.

I don't think this is what the Founding Fathers had in mind. The wording of the Tenth Amendment suggests as much.

KyCobb said...

Lee,

The Courts have identified limits to the Commerce Clause power. It struck down laws which encroached on state's police powers by regulating local crimes (guns in school zones and violence against women). The health insurance industry is a national problem involving commerce which can't be addressed effectively at the state level; exactly the sort of issue which has historically been subject to regulation by Congress.

The irony here, of course, is that the mandate was developed by conservatives as a free market alternative to government single payer health care plans like medicare. If SCOTUS holds that the Act is unconstitutional, the next time Democrats are in a position to enact universal health care it will have to be as a government program and not as a system of private health insurance.

Lee said...
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Lee said...

> The health insurance industry is a national problem involving commerce which can't be addressed effectively at the state level; exactly the sort of issue which has historically been subject to regulation by Congress.

The implication is that, if you are unsatisfied with the state of the health insurance industry, it therefore follows that any method Congress chooses to deal with it is constitutional.

No that does not follow.

> The irony here, of course, is that the mandate was developed by conservatives as a free market alternative to government single payer health care plans like medicare.

Proving, what? Conservatives can be boneheads too? I'll alert the news media, surely they haven't heard.

> If SCOTUS holds that the Act is unconstitutional, the next time Democrats are in a position to enact universal health care it will have to be as a government program and not as a system of private health insurance.

And if you thought that was the likely outcome, you'd probably favor SCOTUS striking down this law. But you don't, and I don't.

One Brow said...

Health insurance is not a commodity, it is a method of payment for a commodity.

Does that mean Congress has the right to make me do business with a funeral home.

If issues with the dispoal of your body have implicaitons on interstate commerce, then Congress has to right to regulate it.


I have to participate in the food market too. Does Congress have a right to make me buy food? Or particular types of food?

If you budget no money for food, you can't walk up to a grocery store when you are hungry, demand food, and receive it automatically without paying for it. You can receive health care when you are sick. That has implications to commerce, putting it within the Constitutional mandate of Congress.

One Brow said...

And if you thought that was the likely outcome, you'd probably favor SCOTUS striking down this law. But you don't, and I don't.

AS a liberal, I hope SCOTUS does not strike it down. I think the current law is an intermediary between what we now have and a German-style national nealth insurance, and the German model would work fairly well in this country.

KyCobb said...

Lee,

"And if you thought that was the likely outcome, you'd probably favor SCOTUS striking down this law. But you don't, and I don't."

Not now, obviously, but maybe 10-20 years from now.