I never got around to summarizing the arguments from the fourth and last health care question at the Supreme Court, looking at whether or not the Medicaid expansion in the bill is unconstitutional. If the Court found this, it would unravel decades of federal-state partnerships in social policy and would create far more chaos than striking down just the mandate. Plus, more than half of the coverage expansion in Obamacare comes from this expansion of Medicaid, so it matters at a practical level as well. Adam Bonin writes that the Medicaid expansion, based on a read of the arguments, is probably safe. He highlights this comment from Justice Sotomayor:
JUSTICE SOTOMAYOR: I guess my greatest fear, Mr. Clement, with your argument is the following: The bigger the problem, the more resources it needs. We’re going to tie the hands of the Federal government in choosing how to structure a cooperative relationship with the States. We’re going to say to the Federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can’t structure the program the way you want.
It’s our money, Federal government. We’re going to have to run the program ourself to protect all our interests. I don’t see where to draw that line. The uninsured are a problem for States only because they, too, politically, just like the Federal government, can’t let the poor die. And so to the extent they don’t want to do that, it’s because they feel accountable to their citizenry. And so if they want to do it their way, they have to spend the money to do it their way, if they don’t want to do it the Federal way.
So I — I just don’t understand the logic of saying States, you can’t — you don’t — you’re not entitled to our money, but once you start taking it, the more you take, the more power you have.
Justice Kennedy seemed to agree, though it was hard to get a read on the Court’s conservatives. The whole argument was kind of crazy from the get-go, the idea that expanding Medicaid is unconstitutional because the states are getting too good a deal to say no. “Why is a big gift from the federal government a matter of coercion,” asked Justice Elena Kagan.
But in many ways this was kind of a tacked-on argument immaterial to the case. Because if the Court finds that the Affordable Care Act’s individual mandate is not severable, then the entire law goes down, and the Medicaid expansion with it. Dahlia Lithwick argues that we could be headed down that road.
It’s not a good day for the Affordable Care Act. This morning’s argument requires the justices to start from the assumption that the court will strike down the individual mandate (the issue argued exhaustively yesterday) and asks them to pick over the carcass, to determine what, if anything, survives. There is a strong legal presumption that the court should save (or sever) the constitutional bits of a bill, even if it strikes down other parts. But as the day wears on and the argument winds down, this project of hacking and slicing seems more and more impossible—and it has depressed and terrified virtually everyone.
Justice Ruth Bader Ginsberg asks Paul Clement: “Why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.” Scalia jokingly suggests that it would violate the constitutional ban on cruel and unusual punishment to force the justices “to go through these 2,700 pages.” And Justice Anthony Kennedy suggests that while the legal presumption is that judicial modesty requires the court to avoid redrafting an entire piece of legislation, maybe the truly humble thing would be for the justices to strike the whole thing down. “When you say judicial restraint,” he tells Deputy Solicitor General Edwin Kneedler, “you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than striking the whole.”
Look carefully at what Justice Kennedy just said: Don’t want to impose new risks on the insurance companies. Check. Striking down all of the 2,700 page statute—much of which regulates breastfeeding, Native American health, black lung treatment, and other things unrelated to the individual mandate—that’s the new judicial restraint.
Lithwick notes in particular how the Justices’ particular biases about health care mattered far more than the law during these arguments. Prior precedent played almost no role. It was “a kind of free-floating panel from Dancing With the Stars,” says Lithwick, with Justices turning up their noses at various laws they decided not to like.
Lyle Denniston, however, thinks that the mandate has a chance to pass muster with the Court. But it’s really hard to say. The Court was wise not to allow cameras in the room, because I don’t think these three days speak highly of the concepts of judicial restraint.
We should have a ruling by the end of June.





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From the Sacramento Bee editorial:
“However U.S. Supreme Court justices rule on the landmark Patient Protection and Affordable Care Act, one thing is clear. The oral arguments revealed little understanding of the 49.9 million Americans who lack insurance, and why they are uninsured.
“Justice Antonin Scalia wins the supreme prize for clueless and callous comments.
“On the moral and legal obligation of doctors to treat people who turn up without insurance – say, after a heart attack or a car accident – the main cause of cost-shifting to the rest of us, Justice Scalia questioned the very idea of providing them with health care. “Well, don’t obligate yourself to that,” he said.”
LINK.
Good lord this is depressing.
This is f’ed up beyond words that this is even being discussed.
Let’s see, Scalia was happy to take a scapula to campaign finance laws spread over a century, arguing that any problems created as a result are easily fixed by Congress, yet on ACA and its amending law, both should be invalidated because Congress needs to start from scratch instead of simply invalidating just the penalty tax.
The mandate has lots of exceptions and only in a limited number of cases does a penalty apply, and the failure to buy insurance is not a crime of any sort, and only a civil crime for failing to pay the penalty tax.
The Court does not need to consider the implications of invalidating the penalty for not complying with the mandate any more than it took into account of the implications of invalidating part of campaign finance:
CONGRESS IS BEST ABLE TO FIX THE LAW – SCOTUS SHOULD NOT LEGISLATE.
Just strike the “mandate” and tell Congress to fix the problems that creates.
Dear Justice Kennedy:
During the recent oral arguments before the Court, you talked about the financial “risks” that insurance companies might be faced with if the individual mandate were stripped from the health care law. This thinking is in line, of course, with the abilities of insurance companies to control THEIR risks. You must know that they are very good at this.
For decades, health-care insurance companies have been controlling their risks by denying applications from individual applicants with “pre-conditions,” such as asthma, high-blood pressure, diabetes and even pregnancy. Why would insurance companies want these kinds of people if they did not have to insure them? Sure, these same people can get insurance coverage under a group plan through their employers. But if these same folks are self-insured, between jobs or out of work, or work for an employer who does not provide insurance, they must apply for individual coverage. There, THEY are the ones “at risk,” NOT the insurance companies. You see, they have very little leverage or support in this effort. If they admit a pre-condition, they probably will be denied coverage.
The Affordable Care Act (ACA) has been designed for these people, the ones who would seem to face most of the “risks” under current conditions. For many, their greatest risk is to lose all their assets because of a SINGLE medical emergency or hospital stay. Bang! One incident, and these folks – those without health-care insurance — are in bankruptcy. They can lose everything they own!
You must know that unpaid medical bills are the most likely case of bankruptcy in our nation. And I hope that you will come to see that it is the Affordable Care Act of 2010 (ACA) that can fix most of this, and more. The Act ends the right of insurance companies to deny applications, set annual or lifetime caps, rescind coverage for enrollees that get sick, and/or to charge enrollees with pre-conditions more than it does others for the same insurance. In short, the ACA eliminates most, if not all, of the risk for those who are denied coverage.
And you also must know that governments pay more than $40 billion each year to hospitals, doctors and others to pay for Americans without health-care insurance, those who simply do not have the money required to pay the accumulated bills. So, not only are individuals and families at risk, financially, when they do not have health-care insurance, but so is the American public, which is on the hook to pay for most of the bills for the uninsured.
But there is another group of Americans who go without health insurance under our current system. These are the ones who – in the individual market – simply cannot afford to pay the insurance premiums, even though they will not be denied access. Most of these folks have jobs; they work! And most of them also have financial assets that are at “risk” if they get sick and/or are hospitalized. But health-care insurance in our country has become very, very expensive. Premiums are now running about $15,000 per year for families, and as much as $8,000 per year for individuals. To many Americans, these costs are simply unaffordable, prohibitive, if they are also to pay their other bills.
But the ACA addresses this affordability problem with a subsidy program through the state-run health insurance exchanges. There, these people will choose a private insurance company health plan. Based on their annual earnings, they may qualify to pay only part of the insurance premium, with the federal government subsidizing the rest for this private-insurance company policy. And, the vast majority of these Americans will not need a “mandate” to take advantage of this opportunity. No, the vast number of these Americans will happily sign up for insurance, via these exchanges, without any need for coaxing. Owning health-care insurance is part of their “American Dream.”
And, finally, Justice Kennedy, there is the issue of preventive medicine vs. “risk.” Those with health-care insurance have opportunities to see doctors, get shots and tests, have examinations, and receive advice in the quest of preventing health-care problems. This, too, is a major tenet of the ACA. Surely, you can see that folks without health-care insurance are at greater risk for preventable diseases and conditions, compared with those with health-care insurance.
Also, preventing illnesses can not only save billions of dollars in costs per year under our national health system, plus it can put billions of dollars back into our national economy that would not be there, as these people, who have had a disease or condition prevented, continue to work.
In conclusion, Justice Kennedy, I really hope that you will consider the “risks” many American people face under the current American health care system. As a nation, we simply cannot continue to have more than 15 percent of our population to remain with these risks, primarily caused by the lack of adequate health-care insurance. The Affordable Care Act may not be a perfect piece of legislation, but it is a right step in the direction of eliminating the “risks” associated with health care costs that millions of American individuals and families face every day.
Justice Kennedy, I sincerely hope that you will do the right thing and find the Affordable Care Act in accordance with the purposes and hopes of the U.S. Constitution. God Bless!
This from “empathetic” Sotomayor.
What she is really saying is that if it weren’t for politics, we could let the damned poor die.
Wow, just wow. Would have thought she’d have hidden her contempt for the poor a bit better, but I woulda been wrong.
Future historians will compare the debate on healthcare in the SCOTUS to the Medieval question of “how many angels can dance on the head of a pin?”
After comments like that (among others from the “learned” justices) it’s not surprising to realize why throngs crowded the Parisian square where the old order was finally held accountable for their callous indifference, if not outright hostility, to the “people.”
More like witch trials. If the female drowned she was innocent. If she didn’t she was guilty & burned alive at the stake.
Since Mme. deFarge is no longer around, I might have to take up knitting.
And Ari Berman on book salon a week or two was shocked, I tell you shocked, when I opined that O’s SCOTUS appointments were right wing and the next 2-3 in his second admin would be so far right that all left turns would be called terriss acts.
Nice.
Berman must live in a bubble or is a closet Pollyanna.
I don’t take it that way. She is in a very cynical setting. anything less from her would not be taken seriously. You mean you think this is about helping people? C’mon, this is the law and what makes sense (at least to us here on the right side of )
He writes for The Nation, so he must be a lefty.
Heh.
He’s more of a blindy.
Aha. Soto is playing eleventy mention chess. AKA incompetence.
Whatever.
The “law” is a bludgeon used to keep the people in line. It does not apply to the fat cats and aristocrats.
The learned justices of SCOTUS. They think it is better for judges to appoint a president rather than insist the votes be counted. They think corporations are people, in fact very special people with immunity. They think money is speech. Damn right it is. In this country if you have money you have speech, if you don’t, well you’re speechless. And soon we will learn that they don’t think medical personnel and hospitals should have to treat people who can’t pay. In other words, people who are speechless.
My frequent Q over the last week. What/how much/how is the payoff to SCOTUS? Most commenters think it is still the old model of judge for life, but I ask: what did they need to promise to get such a job, what is the punishment for not voting in line with prior promises, and the much more obvious: exactly what did they promise before they were appointed.
Judicial restraint for this bunch always was about “Judicial restraint for thee, but overturning precedent for me.” Their job was to overturn every court since the packed court of FDR. After 40 years of appointments, we are about to see that happen.
Some people are being drawn into the Deep Kabuki of it all.
There is no way that we can afford to give people free health care, at least not under the current high-tech whizbang Doctors-as-Lords standard of care.
They passed “a bill” to satisfy the brain dead rank-and-file of the Democratic party. But they wrote in such a fashion that it HAD to be killed by the Supreme Court.
Now they can look all flustered and say “gee, at least we tried!” while we celebrate 8% unemployment as The Great Recovery.
They key point folks need to understand is that THIS WAS ALL STAGED!
No doubt. But staged for whose benefit in what way.
First peel of the onion looked like it was staged for med ins corps bc they got 30 million new healthy customers they could rip off.
If that is not the model, what is?
I don’t think it is that way if it is struck down. The Justices were knocking it because if a state refused not only would they lose Obamacare funding but instead would lose all Medicaid funding. What the Justices specifically ask Verilli for and he refused to give was to say that HHS would only cut incremental funding rather than all funding. If SCOTUS was to rule against this based on the executive branch’s refusal to only cut incremental funding, it would just mean that in future state-related bills that only funding in them would be in question rather than saying that the federal government could outright take their ball and go home.
Some people prefer to believe the myth of the wise Brahmins about the fray making impartial decisions solely on the “merits of the law.” It’s a myth, of course, but without the myth were would the U.S. be. Perhaps closer to the Scandinavian countries and less like the banana republic most seem to prefer.
The sad spectacle of a corrupt group of “judges” pontificating and deciding on the “rightness” of a collosul piece of corrupt legislation that screws every single living American citizen for their entire lives… continues.
Have a friend that once worked at the Cleveland Clinic. Was there when a group of Austrian physicians were touring the hospital, fact finding etc.. Sitting down at lunch one afternoon the Austrians were asked in a casual way why they chose medicine and they replied “in order to serve the people of Austria.” Their impression of the States was that people chose medicine so they could get rich.
“summarizing arguments”… blah ble blah blah… the arguments mean NOTHING…
Just like the “arguments” before the legislation was passed meant nothing.
The decision has already been made by the criminals running our country… the “arguments” are just a fake show.
There is no such animal as “free” anything, beyond will, air and, occasionally, parking.
This nation has adopted the unique philosophy that your health is dependent upon your wealth. We spend twice what any other industrial nation does, but our life expectancy is somewhere in the Third World (#30, at last look).
We have the best doctors, we have the best procedures, we have the best equipment.
We also have a bureaucracy that collects 30% to 40% of their premiums to……….? Justify their existence? Pay for their yachts?
IN netspeak, WTF are we paying them for?
My involvement in this issue, intellectually in terms of the toxic economics of U.S. medicine, as well as collecting anecdotes, spans decades.
I doubt the Austrians were in it for eleemosynary reasons. That’s just too self-serving for words. Kinda like W saying he was invading Iraq to spread demockracy.
What seems to keep the self-enrichment factor in western European countries docs lower than in U.S. (though I am still a piker at this aspect) is that govts intervene more actively on part of patients. Otherwise Austrians docs would be just as money grabbing as U.S. docs.
And U.S. med ins corps, much more politically powerful than docs anyhow. So who gives a ff about what docs do/say anyhow.
I think Sotomayer’s comments are brilliant and actually make the case for government run single payer insurance as the by far best way to provide the whole of the people with this entitlement. She really tags the inevitable loss of control and power to do the government’s work this whole ACA and similar programs, both GOP’s and Obama’s.
I read her comments about the states caring for the poor as directing attention to the cynical world of politics in this day of civilization by way of self interest economics.
I have no idea how all that gets applied to the final decision in this case but I am going to save it for future reference.
How does this add up?
1) The ACA was a sellout to big medicine, big pharma and the insurance industry.
2)The Supreme Court is wholly owned by the corporatists. Key members of which are big medicine, big pharma and the insurance industry.
3) The corporatist Supreme Court is going to gut the ACA.
Sad… but true…
Thats why Ameican doctors and dentists have all hired “consultants” to advise them on how to “increase revenue”.
That old spell checker got you. It’s scalpel. Scapula is the shoulder blade.
Otherwise I take your point but personally would rather see the whole thing come down and hope for single payer………. yes. likely futile hope.
Most physicians practicing today are not economists and do not hold to the economic interpretation of human behavior. But wait awhile the tide is strong to convert even the most sacred of professions.
Number 1 and number 2 would indicate that… number 3 is not going to happen.
I would love to be suprised… but I just dont see number 3 happening. The criminals running the country got virtually everything they wanted in this legislation. Obama handed the American people to scoundrel private businessmen who do not care one wit about health or the American people. They only care about money… thats it. Obama handed them the key to the US treasury… the American peoples money. This is a travesty.
Single payer or this POS. One has legal problems, one doesn’t. What does Congress pass? The POS. Figures.
I do not think for a moment that there is a single doc who is not looking at his bottom line.
The last I respected a U.S. doc before I met a guy on Vail ski slopes. He was a personal injury lawyer and told me of the most stomach churning cases he had defended.
Not that I necessarily go with your #2, different people are owned by different corporations…you’re trying to frame this in some manichean way where either there aren’t politicians who are bought and paid for or every politician is bought and paid. That Republicans would oppose legislation by the Democrats and that Democrats would oppose legislation by the Republicans is hardly proof that none of them are bought.
That’s quite a sample.
Wasn’t a sample as much as an example.
An industrious obot. In your two
commentsscreeds so far you’ve managed to endorse the failed Catfood Commission and to plead for Obama’s multi-trillion dollar gift to the insurance industry.What’s next? The Unbearable Lightness of Being Targeted by Drones?
you badly misinterpret sotomayor’s point.
It also helps that in most of Europe post-secondary education is often free or very cheap, so doctors don’t rack up huge college bills.
i think you are very right about sotomayor.
i cannot understand how commenters here can be so oblivious to what she is actually saying.
what crap you spew.
i have had several primary care physicians over the decades, in several cities, who clearly were most interested in their patients, not in their bottom line.
on the other hand, as a personal revelation about self, it’s nice to know you ski at veil – with ambulance chasers.
I was especially entertained by the obot when it said that people are HAPPY they are being forced [mandated] for their ENTIRE LIVES…
To buy a worthless product from scoundrel private businessmen who serve no purpose other than being middlemen [they dont actually do anything] who dont care one wit about them or their health and whose only purpose in life is to take as much of other peoples money as they can… even though they are doing nothing for it.
And the obot claims this is all “part of their “American Dream”".
That screed is right out of the corrupt Democratic party propaganda machine… it couldnt be more obvious.
It’s great to see that many are now recognizing propaganda when they see it. And even better… they are refusing it.
My 90 year old grandmother keeps complaining to us that her dentists office keeps calling her and telling her that she needs to come in for more dental work even though she has told them over and over that she is not interested. I got so bad that I offered to call them and tell them to quit calling her. She says that when she tells them she in not interested they reply that the “work” will only cost 3 to 4 thousand dollars and she can make payments… even though she is financially well off.
Do you get it ? They are calling her to solicit business… she is not calling them. Kind of reminds me of ambulance chasers.
I agree. Her comment is a good summary of where we are now, politically speaking.
SC Justices are acting like a parallel House and Senate without having to be elected–and they seem to be doing partisan work. They seem to want to trump the elected officials representing millions of Americans. Why accept this case? One day, soon, the House will be led by Ds again, and the Justices who need to be impeaced can be impeached. Given the Bush Supreme Court, why have elections, a House or a Senate?
h
house
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Fixed that for ya.
Yes, that was a little surprising. I would have more expected that kind of callousness from Kagan, whose minuscule history suggests she is sympathetic to the police power and authoritarian imperial presidential power. The thinking a few months ago was this was a slam dunk, we’d be getting 8-1 to uphold the mandate, and now it looks more like 8-1 to not only strike the mandate but to destroy Medicaid too. I am not often glad to be old, but this works for me.
I think you have to look at Maslow’s Hierarchy of Needs. These are all people who were members of The Federalist Society, idolized by “conservative” legal scholars, who crave the esteem and admiration of the people they see as being “superior,” that is, rich. Think of it as “self-fulfillment.”