Healthcare Reform Thread II

[DinoDoc]

Couldn't it just be considered a precondition to joining the lawsuits of other states, as Dinodoc said?

It looks as if that might be the intent:

“To trump the constitutional amendment that is offered here, the federal government will have to demonstrate that the commerce clause does, in fact, give it authority to mandate the purchase of health insurance,’’ Mr. Thompson said. “… This is a standard we don’t expect the federal government to be able to meet because [nonpurchase of insurance] by human beings is not commerce. It’s not economic activity.’’

http://toledoblade.com/article/20100323/NEWS24/100329896/-1/news16

[Japher]

http://www.gop.com/firepelosi/

They targeted $402,010 in 40 hours to gain 40 seats in 2010 to fire pelosi. They have 30 minutes left and are well over $1,000,000

[Ramo]

Which, as a federal employee, is really the way it works already. I choose from a number of health care providers like the proposed exchange. Kind of a red herring.

The exchanges that members of Congress would have to get insurance from don't currently exist. The point is that if the exchanges are poorly constructed or managed, members of Congress would suffer. They have a direct incentive to see them work properly.

Ramo is exactly right. The British system, for all its obvious flaws, is still vastly preferable to the terrible reform Ramo just spent a year shilling for.

And it's even more vastly preferably to the status quo or Republican "alternatives." But it's a politically impossible for obvious reasons.

What we get might look like the Dutch or Swiss systems in a couple decades. Which are probably worse than the British system, but not by much.

[Drake Tungsten]

Let's crush any hope that the courts will strike down this bill right now, before it gets out of hand.

What Are the Chances that the Courts Will Strike Down the Individual Mandate?

Orin Kerr • March 22, 2010 9:49 pm

With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.

Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

But with all of these caveats, I’ll stand by my prediction. I just don’t see lower courts finding these issues difficult, and I don’t see the Supreme Court likely to take the case. I recognize there’s always the theoretical possibility of the Supreme Court doing something totally unexpected — a Bush v. Gore moment, if you will — but I think the realistic possibility of that happening is less than 1%.

UPDATE: For more on my sense of where the Supreme Court is on federalism issues, see my 2005 post in response to the then-new Raich case, The Rehnquist Court and Symbolic Federalism. It’s a bit out of date, but still basically accurate.

http://volokh.com/2010/03/22/what-are-the-chances-that-the-courts-will-strike-down-the-individual-mandate/

[Guynemer]

It looks as if that might be the intent:

“To trump the constitutional amendment that is offered here, the federal government will have to demonstrate that the commerce clause does, in fact, give it authority to mandate the purchase of health insurance,’’ Mr. Thompson said. “… This is a standard we don’t expect the federal government to be able to meet because [nonpurchase of insurance] by human beings is not commerce. It’s not economic activity.’’

http://toledoblade.com/article/20100...9896/-1/news16

That argument is so full of holes that it'll get laughed out of court.

This is federal law, now. It is the law of the land. Sour grapes from opposition will not change that fact. (And, please remember, I oppose the bill too.)

[HalfLotus]

http://www.gop.com/firepelosi/

Change we can believe in.

[MrFun]

By BRENDAN FARRINGTON, Associated Press Writer Brendan Farrington, Associated Press Writer – 21 mins ago
TALLAHASSEE, Fla. – Attorneys general from 13 states sued the federal government Tuesday, claiming the landmark health care overhaul is unconstitutional just seven minutes after President Barack Obama signed it into law.

The lawsuit was filed in Pensacola after the Democratic president signed the 10-year, $938 billion bill the House passed Sunday night.

"The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage," the lawsuit says.

Legal experts say it has little chance of succeeding because, under the Constitution, federal laws trump state laws.

Florida Attorney General Bill McCollum is taking the lead and is joined by attorneys general from South Carolina, Nebraska, Texas, Michigan, Utah, Pennsylvania, Alabama, South Dakota, Idaho, Washington, Colorado and Louisiana. All are Republicans except James "Buddy" Caldwell of Louisiana, a Democrat.

Some states are considering separate lawsuits — Virginia filed its own Tuesday — and still others may join the multistate suit. In Michigan, the Thomas More Law Center of Ann Arbor, a Christian legal advocacy group, sued on behalf of itself and four people it says don't have private health insurance and object to being told they have to purchase it.

McCollum, who is running for governor, argues the bill will cause "substantial harm and financial burden" to the states.

The lawsuit claims the bill violates the 10th Amendment, which says the federal government has no authority beyond the powers granted to it under the Constitution, by forcing the states to carry out its provisions but not reimbursing them for the costs.

"No public policy goal — no matter how important or well-intentioned — can be allowed to trample the protections and rights guaranteed by our Constitution," Texas Attorney General Greg Abbott said in a statement.

The lawsuit also says the states can't afford the new law. Using Florida as an example, the lawsuit says the overhaul will add almost 1.3 million people to the state's Medicaid rolls and cost the state an additional $150 million in 2014, growing to $1 billion a year by 2019.

"We simply cannot afford to do the things in this bill that we're mandated to do," McCollum said at a press conference after filing the suit. He said the Medicaid expansion in Florida will cost $1.6 billion.

"That's not possible or practical to do in our state," he said. "It's not realistic, it's not right, and it's very, very wrong."

South Carolina Attorney General Henry McMaster, who is also running for governor, said the lawsuit was necessary to protect his state's sovereignty.

"A legal challenge by the states appears to be the only hope of protecting the American people from this unprecedented attack on our system of government," he said.

But Lawrence Friedman, a professor who teaches constitutional law at the New England School of Law in Boston, said before the suit was filed that it has little chance of success. He said he can't imagine a scenario where a judge would stop implementation of the health care bill.

Still, McCollum said he expects the U.S. Supreme Court will eventually decide if the overhaul is constitutional.

"This is not lawful," he said. "It may have passed Congress, but there are three branches of government."

Some states are looking at other ways to avoid participating. Virginia and Idaho have passed legislation aimed at blocking requirements in the bill, and the Republican-led Legislature in Florida is trying to put a constitutional amendment on the ballot to ask voters to exempt the state from the federal law's requirements. At least 60 percent of voters would have to approve.

Under the bill, starting in six months, health insurance companies would be required to keep young adults as beneficiaries on their parents' plans until they turn 26, and companies would no longer be allowed to deny coverage to sick children.

Other changes would not kick in until 2014.

That's when most Americans will for the first time be required to carry health insurance — either through an employer or government program or by buying it themselves. Those who refuse will face tax penalties.

"This is the first time in American history where American citizens will be forced to buy a particular good or service," said Nebraska Attorney General Jon Bruning, who is also president of the National Association of Attorneys General, explaining why his state joined the lawsuit.

Tax credits to help pay for premiums also will start flowing to middle-class working families with incomes up to $88,000 a year, and Medicaid will be expanded to cover more low-income people.

No Republicans in the U.S. House or Senate voted for the bill.

It's official - thirteen of attorneys general are retarded.
Retarded Attorneys General

[MrFun]

And in that article . .

"This is the first time in American history where American citizens will be forced to buy a particular good or service," said Nebraska Attorney General Jon Bruning, who is also president of the National Association of Attorneys General, explaining why his state joined the lawsuit.

He never heard of mandatory auto insurance?

[Drake Tungsten]

What exactly is retarded about challenging a law you think might be unconstitutional? They're going to lose, but it's worth a shot.

He never heard of mandatory auto insurance?

1. No one has to buy auto insurance. They can choose to not drive.

2. Auto insurance is required by state governments, not the federal government. The constitutional restrictions on federal power in this area don't apply to state governments.

[Darius871]

Let's crush any hope that the courts will strike down this bill right now, before it gets out of hand.

What Are the Chances that the Courts Will Strike Down the Individual Mandate?

Orin Kerr • March 22, 2010 9:49 pm

With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.

Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

But with all of these caveats, I’ll stand by my prediction. I just don’t see lower courts finding these issues difficult, and I don’t see the Supreme Court likely to take the case. I recognize there’s always the theoretical possibility of the Supreme Court doing something totally unexpected — a Bush v. Gore moment, if you will — but I think the realistic possibility of that happening is less than 1%.

UPDATE: For more on my sense of where the Supreme Court is on federalism issues, see my 2005 post in response to the then-new Raich case, The Rehnquist Court and Symbolic Federalism. It’s a bit out of date, but still basically accurate.

http://volokh.com/2010/03/22/what-ar...idual-mandate/

How does that quote "crush" anything when it contains precisely zero legal arguments?

[Darius871]

This is federal law, now. It is the law of the land.

Aren't you the one who just went on about "governmental illiteracy"? There's only about a gazillion cases making clear that the Commerce Clause's contours trump the Supremacy Clause any day of the week, and those contours have shifted back and forth with the Court's mood, making the Commerce Clause broader in Wickard v. Filburn, narrower in U.S. v. Lopez/U.S. v. Morrison, and broader under certain limited circumstances in Gonzales v. Raich, which the right-leaning majority (Sotomayor having been a wash replacing left-leaning Souter) could conceivably find the cojones to "clarify."

I'm not saying it has more than a 0.00001% chance of happening, but Commerce Clause jurisprudence has fluctuated so much over the years that it's far from "frivolous" to at least argue that merely declining to purchase a product 1) is an inherently noneconomic activity protected by Lopez/Morrison, and 2) is exactly the opposite of Raich's facts where the challengers had actively participated in a federally regulated market. There's simply no precedent for dealing with this issue since car insurance mandates are based on states' inherent police power, and absent precedent anything's possible.

[Drake Tungsten]

How does that quote "crush" anything when it contains precisely zero legal arguments?

Given that the post links to a discussion of Raich and "Symbolic Federalism", I don't understand how you can claim that it contains no legal arguments.

The Volokh Conspiracy is also a serious law blog. It's assumed that readers already know about Wickard, Lopez, Morrison and Raich and the details don't need to be spelled out.

Raich's facts where the challengers had actively participated in a federally regulated market.

That's a questionable view on the "facts" involved in Raich. How does growing marijuana for your own personal use = actively participating in a federally regulated market? Raich pretty clearly indicated that the broad interpretation of the Commerce Clause laid out in Wickard was still supported by the Court, despite the minor defense of federalism in Lopez and Morrison.

I completely agree with you that these lawsuits aren't frivolous, however.

[MrFun]

What exactly is retarded about challenging a law you think might be unconstitutional? They're going to lose, but it's worth a shot.

He never heard of mandatory auto insurance?

1. No one has to buy auto insurance. They can choose to not drive.

2. Auto insurance is required by state governments, not the federal government. The constitutional restrictions on federal power in this area don't apply to state governments.

Yes, this is what state governments should do during a terrible economic period - spend money on wasteful lawsuits against a law that is nowhere close to being unconstitutional.

[Drake Tungsten]

MrFun: Go read Darius' post (including the Wikipedia links) and then come back to discuss this.

[MrFun]

Alright, when I get home from work later.