Tweet
The Supreme Court heard arguments on the severability of the individual mandate from the Affordable Care Act today, and were introduced to three competing options, should they find the mandate unconstitutional. They could sever only the mandate and allow the rest of the law to stand; sever the mandate along with insurance regulations like guaranteed issue and community rating, to prevent what the government argues would be an insurance death spiral; or throw out the whole law, which did not include a standard severability clause.
There appeared to be a divergence of viewpoints on this:
“My approach would be, if you take the heart out of the statute, the statute is gone,” Justice Antonin Scalia declared.
From the other side, Justice Elena Kagan suggested that often “half a loaf is better than no loaf,” while some of her colleagues agreed that the court should not move too drastically.
“It’s a question between a wrecking operation and a salvage job,” Justice Ruth Bader Ginsburg said, “and it seems to me the more conservative option is the salvage job.” [...]
Twenty-six different provisions took effect in 2010, the law’s first year, and 17 went on the books last year, according to the Kaiser Family Foundation. Nine new provisions are taking effect this year.
“(There is) all kinds of stuff in there,” Justice Stephen Breyer said, adding that “they can stand on their own.”
This doesn’t tell us much we didn’t already know. The more liberal justices would sever the mandate, while Scalia, at least, would not. But Anthony Kennedy, the swing vote, appeared to agree with the government’s argument that you could not separate just the mandate without also throwing out the insurance regulations.
Justice Anthony Kennedy, considered the swing vote on the court, voiced concern about the cost risks to insurance companies if the mandate – which would bring millions of healthy young people into the healthcare system and spread out costs – is invalidated alone.
If the arguments are any guide, then, the choice would be, in the event of the mandate being found unconstitutional, between tossing the regulations with the mandate, or tossing the whole law. The mandate won’t come out alone, if form holds and everyone to the right of Kennedy agrees. But Nina Totenberg, the venerable NPR Supreme Court reporter, said that the whole law could very well be tossed.
The afternoon session concerns the Constitutionality of the Medicaid expansion.
26 Comments
Support this site!
Subscribe to the newsletter
Advertise on Firedoglake
Send
us your tips
Make us your homepage
About FDL News Desk
They could have made it severable when they passed the law, if they had wanted to. They did not; that was on purpose. All those who were paying attention at the time should search their memories.
“Draw them in with prospect of gain, take them by confusion.” Sun Tzu, The Art of War
The health care fight morphed from universal to pubilic option to individual mandate where now the supposed “liberals” are defending a mandate to buy a defective product that creates profit through human suffering. The fascists are winning. Even if the mandate is struck down by itself, the majority of this industry friendly act will remain intact or the industry will revert back to what is was doing prior to the act.
The questions that should be before the court is whether health care is a human right or not and should an industry profit off the misfortunes of others?
Yes, I remember it well and the Obama admin is fighting it in court that way. What the Obama admin wants everyone to forget is that they could have instead managed risk by reducing costs with the Dorgan amendment, drug re-importation, etc, but instead they’d rather take away guaranteed issue instead of bringing costs down.
Kennedy’s head really does come to a point, doesn’t it? I hear the voice of Mrs. Johnny Iselin…
Toss it!
Toss the whole damn stupid thing.
Then toss obama’s dumb ass out in November and elect Ron Paul.
Let’s get real and start working toward becoming a viable country again.
Oh, and if you live in a STATE that want’s universal coverage?
Just do it.
Not a problemo (except for States that do it of course).
I was struggling, just this morning, with the same issue you name in your first paragraph. In a prior thread a person was attacking the law as a ‘liberal wet dream’. I found myself reflexively wanting to argue with that person, but stopped and realized that I do not want to defend the ACA. It’s a corporate handout, and whether you are liberal or conservative, if you’re not the 1%, it doesn’t benefit you in any real way.
The oligarchy, the government, whatever you want to name the PTB. They’ve managed to alter the conversation again. We are no longer discussing single-payer healthcare or universal healthcare, but discussing whether or not the mandate should be stricken from the piece of shit they heaped on us. And keeping the mandate will be seen, in the eyes of the nation, as a victory for the left.
FML.
It’s amusing that the talking heads refer to this as Obama’s “significant achievement” in policy, when its a law written by corporations to benefit corporations and not much different than what Dole proposed in the 90′s. They then have the temerity to describe Obama as a liberal Democrat who’s got the best interests of the 99% at heart. Hypocrisy at its finest.
A lot of people see the fate of this mandate as left or right,no one is going to confuse me in any way whatsoever.I’m not leftist nor rightist nor centrist etc.Nobody can order to a person-individual to buy something because, he,she or they told me to do so,i’m buying when i want to,maybe today or in ten years or never.All this argument is futile,the law is heavely politiced,justices are politiced,the law is a gift for insurers etc.Want mandate? then install or legislate single payer by law,end of story.
A somewhat aside comment:
It is interesting to me that the rights guaranteed to our citizens in the original bill of rights were rights to be left alone with no federal intrusion. The feds cannot stifle speech or assembly, force you to testify against yourself, impose a religion, or dis bar one, make arms illegal, arrest you without some cause and the like.
Now rights have become what are more commonly called entitlements. While each has their rightful place, we have made our language less precise by confusing the two terms.
Legalese is the language of obfuscation, politicians and judges are the masters of it. The media are stenographers to their pontifications and never challenge these bloviations. Thus, over time, what we once considered inalienable rights are now entitlements.
I think it was George Carlin who first described the “rights” enumerated in the Bill of Rights as privileges rather than rights. I miss the clarity of his vision.
First off, I don’t care whether it’s struck down or not. And the why of that is I don’t have health insurance for myself and haven’t for years. Friends of mine who are self-employed don’t either. That their significant others and wives do is their and my personal choice. When the budget is tight decisions are made after rollin’ the turtle neck bones and poking around the entrails. But my point here is that I think we’re headed to that fork in the road on the ACA where progressives and the Democratic Party go off in different directions. And the reason for that is the huge disconnect between the factions of this fractured coalition. Obama or the next titular head of the Democratic Party just prolongs this bad marriage; one of convenience that has run its’ course. It has been my intention to vote for a Green candidate for months. So it has been with some others I know who see these disagreements as unbridgeable at the national level. I like some of my local Dems a lot. But the price of loyalty at the top of this party is way out of my league and pocketbook. I’ll let the rich fight over what happens in Washington, D.C.
1/2 a loaf!!!!!!!
Kagen expresses the same out dated liberal incrementalist thinking that created the Bill in the first place.
Its better than nothing, its the best we can do now, its achievable…..
Single payer is the only viable and logical answer…. From following the hearings it seems like even Scalia is making that case. Seems pretty self evident.
I wonder if “universal” health care is still part of the demotard platform or do they think they have accomplished it
“Half a loaf”? Maybe Obama’s Supreme Court judges should try a little harder to conceal their bias than quoting Democratic Party boilerplate verbatim.
Anyways, it’s not half a loaf – it’s a poisoned loaf, and it’s so God-awful that it should be thrown out. Mandating purchase of private for-profit insurance is a permanent barrier to the actual solution which is to get rid of private for-profit insurance (which is pretty fucking politically popular to boot). Obama has no one to blame but himself for this state of affairs. If he wanted universal health care, he should have proposed and gone to bat for universal health care, not force fealty and subsidies to a useless industry. But he didn’t really want universal health care, he just wanted something he could plausibly call a health care bill.
He went at it half-assed by choice, and here he is now – with a bill that’s hated by the public, that doesn’t work, that few people buy into, and that faces repeal and most people polled want repealed. How “pragmatic” was that? Even Scalia pointed out that the government providing health care directly through taxes was better and more constituionally acceptable.
no there is more blame to go around than just the Big O. You really have to point fingers at most of the demotard congress as well. Why Harry Reid is still around is beyond me.
He’s still around because he, like Daschle before him, serves his masters well.
I dont’ agree. Take a look at the brilliant argument by Bartow Farr here. He says that a large number of provisions in the ACA will ameliorate the cost issues for insurance companies, and effectively that the insurance companies have plenty of time to get the fixes needed, once the Supremes decide the case.
And by the way, in the course of Farr’s presentation, Scalia demonstrates again, in case you need to see it, that he has a bad case of black-robe fever
All the legal arguments are moot. The “justices” all had their minds made up months ago. The payoffs have already been delivered and are safe in their tax havens. The Teabagger Five will toss the ACA in its entirety thereby nullifying 0bama’s Big Deal, and guaranteeing that unimportant people will have no access to health care whatsoever. Then high-fives all around, followed by gin & tonics on the veranda.
Guaranteeing that unimportant people will have no access to health care whatsoever? Your hyperbole here is…well…hyperbole.
The ACA’s individual mandate needs to be tossed. If five justices on the USSC can manage to do that, I won’t be calling them silly names like “Teabagger Five.” I will be cheering them.
There must be limits. To try and say that the commerce clause of the Constitution justifies or in any way allows the government to not just regulate commerce but to affirmatively require private citizens to engage in commerce by buying junk (70 percent actuarial value) insurance from for-profit companies that get to skim 20+ percent off the top is pretzel logic. The individual mandate under the ACA is an utterly unconstitutional perversion and it must go.
“I will be cheering them”.
No doubt.
There’s a big difference between access to health care and access to (private, for-profit) health insurance.
First, Obamacare is what it is because of Blanche Lincoln, Ben Nelson, and Joe Liberman. There the ones that held Obama hostage. Obama’s mistake was negotiating a lot of the bill with hospital and drug lobbies. He should have stuck to his guns and gone for Medicare for all. He certainly would have had a much easier time selling that bill to the public and wouldn’t have wasted a year and a half.
Don’t you just love the fact that Justice Kennedy was so concerned about the poor mistreated insurance companies? Doesn’t it just touch your heart? He certainly doesn’t give a second thought to the 50 Million uninsureed, or the suckers the insurance company denies coverage for treament or cancels their policies because they are detremental to their bottom lines. I’m shedding tears right now for these poor misunderstood under appreciated insurance companies.
That’s fine with me. What I want is to change one sentence in the 1965 Medicare bill. Just change the eligiblity age from 65 to at the time of conception. It’s constitutional and it solves all the healthcare problems for everbody. Of course, the insurance companies are screwed but I’m good with that. How do we pay for it? I’d put in a progressive VAT. It’s supply side economics because business no longer have to pay for health insurance. They become much more competitive overseas.
If your comment in.re. payoffs, etc. is accurate, the Supremes will uphold the legality of the corporate gift to the Health Insurance Industry mandate.
Your argument may be valid at DailyKos, but the posters here are too intelligent to fall for that crap.
Um…no. The ACA was passed via reconciliation. 51 votes is all it took. Fifty senators plus the VP to break the tie would have done it. Once Obama and the senate went the reconciliation route, all those demands from Nelson, Lieberman and so on became superfluous. Once they decided to use reconciliation (after having for months said those of us who were saying that reconciliation was the way to get good health care reform done were crazy and that reconciliation was not a possible route), the ACA could have been anything they wanted it to be up to and including Medicare for All. The reason the ACA is what it is today is because this is what they wanted.
Two things…
First, Medicare for All is exactly what I want. Second, there is no such thing as a progressive VAT. The term “progressive VAT” is an oxymoron.