(Mods - National Review's above link takes you to the coveritlive site, which I used as the source link for the thread.)
BFL. need to read through the transcripts tonight
If the SC ok’s this, and they probably will, then we will be living in a full-blown dictatorship.
Even if on the outside chance the SC strikes it down, obama and Congress would never accept it. What could the SC do to enforce such a ruling? Absolutely nothing. They don’t have a police force or an army.
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!
Thank you!
Link to transcript:
http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-398-Tuesday.pdf
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.
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.