ACA Without A Mandate?

By Big Tent Democrat, Section Law Related
Posted on Wed Jun 08, 2011 at 03:21:15 PM EST
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This report on the oral argument before a panel of the Eleventh Circuit on the constitutionality of the Affordable Care Act might indicate that the panel is prepared to strike down the individual mandate portion of the law. But what about the rest of it?

Judge Frank Hull, the third member of the panel, repeatedly asked the lawyers about the possible effect of the court striking down the mandate, while upholding the rest of the law. She said the government had exaggerated the importance of the mandate. It will affect about 10 million persons at most, not the roughly 50 million who are uninsured now. She said the other parts of the law will extend insurance to tens of millions of persons.

Things that make you go hmmm. Personally, I'll believe that an appellate panel will strike the mandate down when I see it, but I've been wrong before.

Speaking for me only

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ACA Without A Mandate? | 36 comments (36 topical)

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Yes, BTD, 11th Circuit Judge Frank Hull (5.00 / 1) (#7)
by Peter G on Wed Jun 08, 2011 at 03:44:45 PM EST

is a woman. No need to "sic" her name.

Thanks (none / 0) (#9)
by Big Tent Democrat on Wed Jun 08, 2011 at 03:47:48 PM EST

Wasn't sure. Note my question mark.


I did note the question mark. (none / 0) (#15)
by Peter G on Wed Jun 08, 2011 at 04:13:55 PM EST

Hence, my answer. ;)


I'd think wiki would include info as (none / 0) (#20)
by oculus on Wed Jun 08, 2011 at 05:43:09 PM EST

to why her parents named her "Frank.' Got to be a story there.


: Dunno (5.00 / 2) (#29)
by Peter G on Wed Jun 08, 2011 at 10:58:10 PM EST

But I sure hope she has a twin brother named Ernest! Seriously, could it be "a Southern thing"? Or maybe to deflect sexism, like George Eliot?

If you don't get a subsidy, you might be (5.00 / 0) (#17)
by MO Blue on Wed Jun 08, 2011 at 05:23:31 PM EST

thrown into using the exchanges and incurring the entire cost of the insurance whether you want to or not.

At least 30 percent of employers are likely to stop offering health insurance once provisions of the U.S. health care reform law kick in in 2014, according to a study by consultant McKinsey.
The shift away from employer-provided health insurance will be vastly greater than expected and will make sense for many companies and lower-income workers alike," according to the study, published in McKinsey Quarterly.
...
Among employers with a high awareness of the health reform law, the number likely to drop health coverage for workers rises to more than 50 percent, the report predicted.
The numbers compare to a Congressional Budget Office estimate that only about 7 percent of employees currently covered by employer-sponsored plans will have to switch to subsidized-exchange policies in 2014, McKinsey said. link

At the rate things are going, chances are (5.00 / 2) (#21)
by Anne on Wed Jun 08, 2011 at 06:10:09 PM EST

there will be even more people who don't have employers by the time we get to 2014...and probably fewer employers, for that matter.

The lost opportunity to truly reform this system, to release the stranglehold the insurance industry has on the nation's economy, is criminal in its magnitude and scope; I have no doubt the whole thing will be in worse shape even faster than most of us thought.


When all is said and done (5.00 / 2) (#22)
by MO Blue on Wed Jun 08, 2011 at 06:33:32 PM EST

the Affordable Care Act will not IMO be affordable or provide actual health care.


No, but (5.00 / 2) (#23)
by Zorba on Wed Jun 08, 2011 at 06:36:15 PM EST

it will enrich the health insurance companies. And wasn't that the point? :-(


: Now that you mention it (5.00 / 1) (#28)
by MO Blue on Wed Jun 08, 2011 at 10:14:39 PM EST

Yes, that was the point.

They'd better (none / 0) (#18)
by TeresaInSnow2 on Wed Jun 08, 2011 at 05:38:30 PM EST

They'd better repeal it if they're going to then. Do it BEFORE it is enacted. Some of the toothpaste is already trickling out of the tube, but that phenomenon is going to be a BIG SQUIRT (so to speak).


Without (none / 0) (#1)
by Ga6thDem on Wed Jun 08, 2011 at 03:35:14 PM EST

a mandate I would consider the ACA a much better piece of legislation though it really doesn't solve most of the problems in this country, it might help along the margins.

It won't survive without it (5.00 / 1) (#4)
by Big Tent Democrat on Wed Jun 08, 2011 at 03:41:14 PM EST

The insurance companies will strike it down.


Without a mandate I consider it (5.00 / 1) (#5)
by Militarytracy on Wed Jun 08, 2011 at 03:41:28 PM EST

virtually meaningless so fast it isn't even funny. The only thing it was good for was establishing universal coverage as a norm, after that many other negotiations could come.


I understand (5.00 / 1) (#11)
by Ga6thDem on Wed Jun 08, 2011 at 03:54:00 PM EST

what you're saying. I was thinking the advantage of removing the mandates would be the fact that people wouldn't be forced to purchase junk insurance. A few people might benefit from the subsidies if they last.


: What has evolved with the junk (none / 0) (#25)
by Militarytracy on Wed Jun 08, 2011 at 08:16:34 PM EST

insurance disturbs me too, so yes....I guess in that light it has crumbled all the way around. It's easy for me to forget about the junk insurance aspect since that will never be my fate unless something very dire happens. I get Tricare for Life now.

Ironically, (5.00 / 2) (#16)
by Zorba on Wed Jun 08, 2011 at 05:21:27 PM EST

Richard Nixon's proposal for health care reform did not have an individual mandate, but it did have an employer mandate, for all employers.

Nixon also embraced tighter regulation of insurers, calling on states to "approve specific plans, oversee rates, ensure adequate disclosure, require an annual audit and take other appropriate measures." No illusions there about how the magic of the marketplace solves all problems.

You can read Nixon's proposal, in his own words here.


Do these judges need remedial instruction (none / 0) (#2)
by andgarden on Wed Jun 08, 2011 at 03:36:10 PM EST

on the meaning of "Necessary and Proper?"

They are all bound by the Supreme Court's unchallenged determination that insurance is interstate commerce. Congress has found the minimum coverage provision to be useful in its scheme to regulate that market. Unless there's some 5th Amendment concern (and there isn't), Congress is on totally firm ground.

Heh (none / 0) (#3)
by Big Tent Democrat on Wed Jun 08, 2011 at 03:40:19 PM EST

So it would seem.

Does this make you a legal realist yet?

Here's the legal reality though - insurance companies will freak if ACA survives without a mandate.

What will an en banc 11th say? Cuz it seems this panel might strike it down, 2-1.


Shouldn't "legal realism" wait 'til (5.00 / 1) (#19)
by oculus on Wed Jun 08, 2011 at 05:40:57 PM EST

after the bar exam(s?


I count a 5:5 split (none / 0) (#6)
by andgarden on Wed Jun 08, 2011 at 03:43:34 PM EST

Awkward (none / 0) (#8)
by Big Tent Democrat on Wed Jun 08, 2011 at 03:47:15 PM EST

But not a precedent, thus not necessarily a circuit split.

That is an very interesting question. I suppose the government would have to seek SCOTUS review, can't have the law not apply to the defendants in Hudson's court.

Pretty funny if Cucinelli gets screwed on this one, he loses but gets o SCOTUS review of his case.


I haven't taken Appellate Procedure (5.00 / 1) (#10)
by andgarden on Wed Jun 08, 2011 at 03:49:16 PM EST

so I'll take your word for it. As you say, the Fourth Circuit is an easy ride for the Government all the way up.


: Ties aren't precedents (none / 0) (#12)
by Big Tent Democrat on Wed Jun 08, 2011 at 03:59:52 PM EST

But the result would be upholding Hudson's rulings for the defendants before him, in theory.
But if their circuits rules against them? And someone else has standing? Then they lose.
PRetty interesting really.
Actually a very good argument for why the SCOTUS has to take these cases.

Call the Mandate a Tax and be Done With It (none / 0) (#13)
by ScottW714 on Wed Jun 08, 2011 at 04:06:46 PM EST

Without the mandate, it's pointless, the entire purpose is to ensure people get insurance, not wait until they need it. If the mandate falls so will everything else, because insurance can argue it's not fair to only insure people who need it.

I find it funny that every state whining about the mandate, mandates people carry auto insurance.

: So the logic is: (5.00 / 1) (#24)
by