Broccoli

[Hauldren Collider]

Neither Bush v. Gore nor Citizens United were decided by popular opinion. Think about that for a second. Given the decisions rendered, how could that even be true?

[Hauldren Collider]

So the Supreme Courts job now includes deciding whether laws passed by congress are likely to be popular with the public?

No, the Supreme Court's job is to avoid mangling the law. If the Supreme Court selectively deletes sections of the law, they are creating an entirely new law, which is a legislative power beyond that reserved to the judicial branch.

My understanding is that Congress can write into the law severability passages that indicate that parts of the law are severable should they be found unconstitutional, but this law does not have any (I'm not sure about this however).

[kentonio]

No, the Supreme Court's job is to avoid mangling the law. If the Supreme Court selectively deletes sections of the law, they are creating an entirely new law, which is a legislative power beyond that reserved to the judicial branch.

My understanding is that Congress can write into the law severability passages that indicate that parts of the law are severable should they be found unconstitutional, but this law does not have any (I'm not sure about this however).

Why is this under debate in the court then? Either its all or nothing in which case it makes no sense that its a) being debated and b) surprising the crap out of everyone, or else the court gets to decide itself whether it should strike part or all which is far too much power to put in the hands of a small group of extremely partisan lifetermers.

[The Mad Monk]

Probably about 20,000 lives a year.

Not helpful.

[Hauldren Collider]

They're not actually all that partisan, kentonio. The only cases you hear about are the most contentious constitutional law questions which tend to fall along ideological lines. Most case decisions don't fall along anything resembling partisan lines. In most cases, there's a perfectly good chance Scalia will vote with Ginsburg, Thomas could vote with Breyer, etc.

[MrFun]

All I care about is getting that damn individual mandate struck down, I don't care about the rest.

Maybe we should consider that the individual mandate might have a legitimate purpose:

Jeffrey Young
jeffrey.young@huffingtonpost.com

Supreme Court Health Care Reform: Without Mandate, Nightmare Awaits Insurers, Uninsured
Posted: 03/28/2012 3:51 pm Updated: 03/28/2012 4:25 pm

Supporters of health care reform rally in front of the Supreme Court on March 28, 2012, the final day of arguments regarding President Barack Obama's health care reform law.
Get ready for the "death spiral."

Harsh questioning by conservative Supreme Court justices Tuesday sparked concern that the health care reform law's individual mandate could be stricken. Without it, health insurance companies and the White House are worried the health care market could blow up come 2014.

"If the mandate goes, people can literally buy coverage on the way to the hospital and then drop it the next day," said Alissa Fox, a senior vice president at the Blue Cross and Blue Shield Association, a trade group made up of local Blue Cross and Blue Shield health insurance companies.

If the Supreme Court upholds the law, but knocks out the mandate requiring almost everyone to buy their products, the industry warns that health care reform will result in higher premiums and less access to coverage. In court and before the public, the Obama administration is making the same case.

This isn't just bad for insurers who would be stuck with the bill. It would also be bad for consumers trying to find a health plan they can afford.

Premiums for individuals who don't get insurance at work would be 2.4 percent to 40 percent higher and 12.5 million to 24 million fewer people would get coverage without the mandate, according to reports compiled by America's Health Insurance Plans, an industry trade group. The estimates vary largely based on guesses about whether the law's subsidies would encourage uninsured people to get coverage even without mandates.

The Supreme Court on Wednesday wrestled with this very question. On the third and final day of oral arguments in a case challenging the constitutionality of the individual mandate and other elements of the health care reform law, justices weighed whether invalidating the individual mandate would necessitate repealing the entire law. The court is expected to issue a decision before the end of June.

“What you would get if the court threw out the mandate and left the rest of the law in place is a really ugly health insurance market that doesn’t work very well and makes everybody upset,” said Robert Laszewski, president of Health Policy and Strategy Associates, a consulting firm.

Insurance companies with bigger medical expenses charge higher premiums. In the insurance industry, it is called the death spiral: when more and more healthy people stop buying plans and only the most expensive patients are left. People who get insurance at work would be mostly untouched because they are already in large pools that let them share the risk of their medical expenses. For individuals and families who buy insurance on their own and for small businesses, it's another story.

To the authors of health care reform, the individual mandate is critical. The plan is built on the theory that the best way to expand coverage and promote affordable plans is to get younger, healthier people to pay premiums into the system that can be used to cover the medical expenses of older, sicker people. Over time, those young, healthy people will age and develop ailments that will be paid for with premiums paid by the next generation.

The Obama administration would find itself in a strange position if only the mandate is voted down. "They wouldn’t have much of a choice but to try to help the insurers get over the hump,” said Joseph Antos, an economist at the conservative American Enterprise Institute. The administration hasn't conceived a plan to cope with a health care reform law that has no mandate.

States have attempted partial reforms of their insurance markets in the past and the results weren't pretty, said Jonathan Gruber, a Massachusetts Institute of Technology economist who helped design both his home state's and the national health care reform plans.

Before then-Gov. Mitt Romney (R) enacted a law that included an individual mandate in 2006, Massachusetts and other states put in place insurance regulations similar to Obama's law, Gruber said. “It basically destroyed the non-group markets, where basically you ended up with very high prices,” he said. “It’s not just idle conjecture that the mandate matters.”

Robert Zirkelbach, a spokesman for America's Health Insurance Plans, warned of "disastrous consequences" for consumers if the mandate goes away. “Companies are going to have to make some very difficult decisions and it’s going to be a very challenging environment," he said.

Among those choices could be to simply stop selling insurance plans to individuals and small businesses, and focus on employer health benefits and private plans in Medicare and Medicaid, Gruber said. This would make it harder to find insurance to buy.

The experiences in Massachusetts and other states won't necessarily be duplicated under a national health care reform program that lacks a mandate, however, said Karen Pollitz, a senior fellow at the Henry J. Kaiser Family Foundation and a former health official in the Obama administration.

The law would provide health insurance subsidies to people earning between 133 percent and 400 percent of the federal poverty level, Pollitz said. New federal insurance market regulations also make it harder for health insurance companies to skirt rules prohibiting discrimination as they did in states like Washington and Kentucky, she said.

“Is that necessarily fatal? I don’t think so,” Pollitz said. “I think most of the uninsured would rather have coverage. I mean, why wouldn’t you?”

I'm not sure the individual mandate is a good idea, but how else can we ensure a functional health insurance market? How else can we prevent people from misusing/abusing the reformed health insurance market by buying a new insurance policy on their way to the hospital?

[The Mad Monk]

That's not an argument for a good law, that's a hostage negotiation.

[MrFun]

That's not an argument for a good law, that's a hostage negotiation.

So you'd be fine with people not purchasing a health insurance policy until they're literally on their way to the hospital?

[DinoDoc]

It's Bush v Gore or Citizens United all over again.

Given the mandate's enduring unpopularity with the American public, this seems like a hollow threat.

[Hauldren Collider]

Also, there has been a turnover of almost 50% since Bush v. Gore.

[Dinner]

That's not an argument for a good law, that's a hostage negotiation.

The real world often is.

[The Mad Monk]

So you'd be fine with people not purchasing a health insurance policy until they're literally on their way to the hospital?

I would be fine with scrapping the entire law because of the unconstitutional section, rather than expose insurers and the insured to the "death spiral".

In other words, no ransom. The sniper takes the shot.

[Dinner]

Given the mandate's enduring unpopularity with the American public, this seems like a hollow threat.

Hmmm, maybe. It depends on how you ask the question. When you ask if people like "Obamacare" then there is a 15 point difference but when you ask people about the specifics like if insurance companies should be allowed to reject people with pre-existing conditions you get 70% of people supporting the law.

[The Mad Monk]

That's because they threw in so much candy along with the crap.

[kentonio]

Basically the individual mandate is horrible anyway (and a republican idea), the bad thing is losing the overall positive effects of getting uninsured people some healthcare. If they strike this down then single payer comes back on the table.

Won't that be ironic, if the Republicans immoral little trick ended up with single payer being enacted.