Skip to comments.Live Thread: SCOTUS hearings on Obamacare [Day 3 Arguments; Post 153+]
Posted on 03/26/2012 8:11:01 AM PDT by BuckeyeTexanEdited on 03/26/2012 10:25:10 AM PDT by Admin Moderator. [history]
click here to read article
The Government's attempted THEFT of 1/6th of the people's free-market, capitalist economy from the private sector with the 'Affordable Care Act' is UNCONSTITUTIONAL and NOT what our Forefather's signed off on!
As I understand it, the mods can’t move a thread to the top of Breaking News. IIRC, Jim or onyx create new FReepathon threads periodically specifically for that reason - to put a new thread at the top.
My apologies to the mods if I’m speakinng out of turn or giving out incorrect information.
(Courtesy ping to Jim and onyx.)
Oh okay.. It would be easier to go to it when I visit FR. I think it trumps all other events at the moment.
Link to transcript:
A little taste [Ginsburg tries to coddle Verrilli along - Scalia then steps in]:
JUSTICE GINSBURG: “... And tell me if I’m wrong about this, but I thought a major, major point of your argument was that the people who don’t participate in this market are making it much more expensive for the people who do; that is, they will get — a goodly number of them will get services that they can’t afford at the point when they need them, and the result is that everybody else’s premiums get raised.”
“So, you’re not — it’s not your free choice just to do something for yourself. What you do is going to affect others, affect them in a major way.”
GENERAL VERRILLI: “That — that absolutely is a justification for Congress’s action here. That is existing economic activity that Congress is regulating by means of this rule.”
JUSTICE SCALIA: Mr. “Verrilli, you could say that about buying a car. If people don’t buy cars, the price that those who do buy cars pay will have to be higher. So, you could say in order to bring the price down, you’re hurting these other people by not buying a car.”
GENERAL VERRILLI: “That is not what we’re saying, Justice Scalia.”
JUSTICE SCALIA: “That’s not — that’s not what you’re saying.”
GENERAL VERRILLI: “That’s not — not -JUSTICE”
SCALIA: “I thought it was. I thought you’re saying other people are going to have to pay more for insurance because you’re not buying it.”
GENERAL VERRILLI: “No. It’s because you’re going — in the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow — that — to which we’ve obligated ourselves so that people get health care.”
JUSTICE SCALIA: “Well, don’t obligate yourself to that. Why — you know?”
JUSTICE KAGAN: General, you’ve talked on a couple of times about other alternatives that Congress might have had, other alternatives that the Respondents suggest to deal with this problem, in particular, the alternative of mandating insurance at the point at which somebody goes to a hospital or an emergency room and asks for care.
Did Congress consider those alternatives? Why did it reject them? How should we think about the question of alternative ways of dealing with these problems?
GENERAL VERRILLI: I do think, Justice Kagan, that the point of difference between my friends on the other side and the United States is about one of timing. They’ve agreed that Congress has Article I authority to impose an insurance requirement or other -or other penalty at the point of sale, and they have agreed that Congress has the authority to do that to achieve the same objectives that the minimum coverage provision in the Affordable Care Act is designed to achieve.
This is a situation in which we are talking about means. Congress gets a substantial deference in the choice of means, and if one thinks about the difference between the means they say Congress should have chosen and the means Congress did choose, I think you can see why it was eminently more sensible for Congress to choose the means that it chose.
JUSTICE KENNEDY: I’m not sure which way it cuts, if the Congress has alternate means. Let’s assume that it could use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power.
On the other hand, it means that since the Court can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I’m not sure which the way the argument goes.
GENERAL VERRILLI: Let me try to answer that question, Justice Kennedy, and get back to the question you asked me earlier. The — the — I do think one striking feature of the argument here that this is a novel exercise of power is that what Congress chose to do was to rely on market mechanisms and efficiency and a method that has more choice than would the traditional Medicare/Medicaid type model. And so, it seems a little ironic to suggest that that counts against it.
But beyond that, in the sense that it’s novel, this provision is novel in the same way, or unprecedented in the same way, that the Sherman Act was unprecedented when the Court upheld it in the Northern Securities case; or the Packers and Stockyards Act was unprecedented when the Court upheld it, or the National Labor Relations Act was unprecedented when the Court upheld it in Jones & Laughlin; or the dairy price supports in Wrightwood Dairy and Rock Royal. And -JUSTICE
SCALIA: Oh, no, it’s not. They all involved commerce. There was no doubt that what was being regulated was commerce. And here you’re regulating somebody who isn’t covered.
By the way, I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it, and that’s — that’s different from regulating in any manner commerce that already exists out there.
GENERAL VERRILLI: Well, to the extent that we are looking at the comprehensive scheme, Justice Scalia, it is regulating commerce that already exists out there. And the means in which that regulation is made effective here, the minimum coverage provision, is a regulation of the way in which people participate, the method of their payment in the health care market. Thatis what it is.
And I do think, Justice Kennedy, getting back to the question you asked before, what — what matters here is whether Congress is choosing a tool that’s reasonably adapted to the problem that Congress is confronting. And that may mean that the tool is different from a tool that Congress has chosen to use in the past. That’s not something that counts against the provision in a Commerce Clause analysis.
JUSTICE SCALIA: Wait. That’s — it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure.
The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?
GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this is a regulation -JUSTICE
SCALIA: No, that wasn’t my point. That is not the only constitutional principle that exists.
GENERAL VERRILLI: But it -JUSTICE
SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that’s a principle?
GENERAL VERRILLI: Of course we do, Your Honor.
JUSTICE SCALIA: Okay. That’s what we are talking about here.
GENERAL VERRILLI: And the way in which this Court in its cases has policed the boundary that — of what’s in the national sphere and what’s in the local sphere is to ask whether Congress is regulating economic activity with a substantial effect on interstate commerce.
And here I think it’s really impossible, in view of our history, to say that Congress is invading the State sphere. This is a — this is a market in which 50 percent of the people in this country get their health care through their employer. There is a massive Federal tax subsidy of $250 billion a year that makes that much more affordable. ERISA and HIPAA regulate that to ensure that the kinds of bans on pre-existing condition discrimination and pricing practices that occur in the individual market don’t occur.
JUSTICE SCALIA: I don’t understand your point -
GENERAL VERRILLI: This is in -JUSTICE
SCALIA: Whatever the States have chosen not to do, the Federal Government can do?
GENERAL VERRILLI: No, not at all.
JUSTICE SCALIA: I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not.
GENERAL VERRILLI: But this — but, Your Honor, this is — what the Court has said, and I think it would be a very substantial departure from what the Court has said, is that when Congress is regulating economic activity with a substantial effect on interstate commerce, that will be upheld. And that is what is going on here. And to embark on — I would submit with all due respect, to embark on the kind of analysis that my friends on the other side suggest the Court ought to embark on is to import Lochner-style substantive due process -
CHIEF JUSTICE ROBERTS: The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. And it seems to me it’s an entirely different question when you ask yourself whether or not there are going to be limits on the Federal power, as opposed to limits on the States, which was the issue in Lochner.
NOT having govt. healtcare in Maryland raised costs by 7%?
That is a dangerous concession, if that is accurate. "The govt." would have to decide what is included in "minimum coverage." But which govt.? State or federal? Does this send the arguments back to Constitutional limits on congress?
I think Breyer saying that helps our case. In the end, the key is for Kennedy to decide that this is just a bridge too far. In order for that to happen, Kennedy can’t find any way to rationalize “limits” to this power.
So if Breyer keeps jumping in saying stupid things would all be constitutional under his reasoning, that will show Kennedy that there is no limit if they approve this. Kennedy has already indicated that he won’t give government full control over our lives, so let Breyer keep saying the government can do whatever it wants.
We already knew the lib judges would vote in favor of this even before the arguments began. I think Kennedy will join them. I also have the feeling one or two of the more conservative judges will hop on the bandwagon.
Maryland taxes hospital bills of those that pay their bill to reimburse the hospitals for the care of the uninsured. So they know how much it costs. 7% is possible.
On one hand it's more honest than just stiffing the hospitals as the popular (both parties) Federal Mandate on emergency room care was designed to do; but it would have made more sense to have raised a tax that those uninsured (many are illegals) would be paying too like a sales tax.
This cost in no way justifies Obama-care.
A sales tax might do it, but of course that would be "regressive" and might have trouble passing in Maryland.
This cost in no way justifies Obama-care.
My view is that government programs usually waste more than they "save."
I will post the relevant tweets from the same sources as yesterday.
Meanwhile: see this WSJ Article: Why Justice Kennedy left both sides of health case hopeful yesterday.
Note that this is counter to the deluge of reports from the Left Media yesterday, claiming that their sky was falling. I tend to agree with the WSJ - the MSM may have put up a smokescreen.
Also: This article from the WSJ explains the five basic things to know about this whole thing... so far.
Kennedy SAID this mandate would change the fundamental relationship between individuals and government, therefore, it would have to meet a very high standard to be upheld.
Kennedy might try to split the baby as was proposed in a Bible story...not actually done...and fiddle around with the final opinion rather than obliterating the entire law.
But what he SAID does not sound like he’s eager to cross that line which he articulated, which would fundamentally change America from what we have always been.
Your evidence that a couple of conservatives will want to jump onboard the bandwagon is...????????????
Tweet references that follow have these sources/tags:
Janet Adamy (WSJ) @janetadamy #supremecourt @louiseradnofsky
First chunk of today’s arguments is on whether the whole law or just parts of it would go away if the court strikes down individual mandate.
Liberal justices went head-to-head with conservative judges Wednesday in effort to protect the health law.
Liberal justices arguing strongly to keep most of overhaul law even if court strikes the individual mandate.
Sotomayor was first to interrupt challengers’ lawyer Clement, who is arguing whole law should be invalidated.
Sotomayor: “Why shouldn’t we let Congress” decide what to do, she asked.
Sotomayor: “What’s wrong with leaving it in the hands of people” who should be taking this decision “not us?”
— Personal Comment: Talk about a statement that is ... I have no words: the LAST thing she would actually want is to have this in the hands of the people.
Clement responds that without the individual mandate, the health law would be a “hollowed-out shell.”
Conservative justices Scalia and Alito have seemed to endorse Clement’s case.
Scalia cites “legislative inertia” as a reason not to let Congress decide how much of the law to keep.
Alito says judges should consider that the legislation wouldn’t have passed without the individual mandate.
Ginsburg has sought to argue that the most legally conservative position is to uphold the law.
Ginsburg: If they must choose between wrecking operation and salvage job, salvage job is more conservative
Roberts has asked several questions of Mr. Clement that further the case for striking down the whole law.
Roberts has suggested that whole health law should be considered linked to the mandate.
Roberts: Law’s myriad other provisions, like black-lung payments, were included as sweeteners to pass bill.
Roberts: Without them, Congress “would not have been able to cobble together the votes to get it approved.”
Kennedy has asked broader questions about the precise test to determine what Congress intended.
Kagan has indicated that if the choice is between leaving half-a-loaf and no loaf, half-a-loaf wins.
—Personal Comment: If the choice is half an unconstitutional apple and a whole one, then they’re both bad.
Breyer aggressive in challenging Clement to say what he proposes the justices do to resolve fate of the law.
Breyer suggesting that his options include appointing a special master or going back to the district courts.
—Personal Comment: talk about activism...
Breyer prompts laughter when he calls expanded health services for Native Americans “the Indian thing”
—Personal Comment: (Most tribes are exempted from Obamacare because they already have a Government-run health care system).
Breyer: “Those [other provisions] have nothing to do with the [mandate] stuff...They can stand on their own”
Feeds now coming from WSJ’s Brent Kendall. Clement done, Justice Department lawyer Edwin Kneedler up next.
[Justice Department defense - against severability]
WSJ’s Kendall: Kneedler says justices should reject the challengers’ “sweeping” proposition that whole law must be invalidated
Kneedler says most of the law’s provisions don’t even apply to the parties who challenged insurance mandate.
— Personal Comment: since the plaintiffs are 26 states, that’s a silly argument... the states are charged with implementing or enforcing a large chunk of the law, right?
Ginsburg says that if mandate falls, legislative branch should decide what should happen to the rest of law.
— Personal Comment: while I’m no lawyer, I gotta wonder if that’s a common position at all at the appellate levels.
Roberts asks if there will be new litigation on remaining parts of law if court leaves law place without mandate
— Personal Comment: certainly there will be (re: Catholic Church), but frankly that’s not something that should concern the Court.
Scalia suggests it would be better to invalidate the whole law and let Congress start from scratch.
— Personal Comment: I’m guessing Justice Scalia is getting tired of the Lib justices speaking their minds, and he opted to throw down that gauntlet.
Several justices express concern about harming insurers if mandate falls but the rest of the law stays in place
Swing vote Kennedy worries about imposing a “risk” on insurance companies “that Congress never intended.”
Scalia: "totally unrealistic" to expect SC to go through 2,700 pages of health law and decide what should remain
Kagan suggests court has no business trying to guess if Congress would/wouldn't have voted for other parts in law
-- Personal Comment: I gotta give her that one... so the right answer, then is to send the rest of it back to Congress and ask them to decide the fate of the rest of it, right? (snicker)
Roberts suggests Kneedler made effective case that if mandate falls, guarantee that insurers accept all customers must go, too...But, Roberts adds, that doesn't tell the court what to do with all the many other provisions of the law.
Kinda sounding like a party-line vote on this one... again. If Kennedy is the swing guy, then he has to recognize - and he asked about it - that the mandate was critical to the law so that the healthy would not opt out... and therefore take ‘profitable’ people out of the national health system.
So without the mandate, the entire financial house of cards falls (okay, yeah, like I didn’t know it was all a crock of cooked numbers anyway). But certainly the votes would have been missing otherwise.
[continuing with Justice Dept. lawyer Kneedler]
[source: twitter.com, WSJ’s Kendall, via @janetadamy, #supremecourt tag]
WSJ’s Kendall: Roberts asks what should happen to rest of the law if court strikes down the law’s expansion of Medicaid.
Kneedler says that if the court strikes down the Medicaid expansion, other provisions should remain in place.
Kennedy asks whether court has competence to decide in detail if certain provisions of the law should stay/fall
—Personal Comment: DING! (See also - bold comment from Scalia above)
Scalia suggests never has been SC case where justices struck down the heart of a law but left the rest in place.
[continuing with Justice Dept. lawyer Kneedler]
[source: twitter.com, WSJs Brent Kendall, via @janetadamy, #supremecourt tag]
Kennedy says Kneedler suggests court has expertise to invalidate some of law but not to judge whether rest says in place
Kneedler finished, now on to lawyer H. Bartow Farr.
[I will have to depart shortly... will add new tweets on my return in a couple of hours unless someone else steps in and pinch-hits. Cheers]