Justice Kennedy's 'revolution'

The transformation of our federal government by FDR was made possible because the Supreme Court made a dramatic shift in view of how it should review congressional legislation. The Court adopted a policy of deference to the legislative judgments of the Congress when it exercised its commerce power, requiring only that the means chosen bear a rational relation to the ends the Congress sought to achieve. Of course, the Congress could not act in a manner that was expressly prohibited by the Constitution, but absent that, its policy choice need only be rational.

With this freedom of action, our federal government has acted countless times to address problems that were national in character. Thus we have an Environmental Protection Agency, a National Transportation Safety Board, a Federal Emergency Management Agency and, yes, a Social Security Administration and Medicare.

This change of approach by the Court was famously described in the 1938 case United States v. Carolene Products.

Writing for the Court, Chief Justice Harlan Fiske Stone wrote:

The power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed," Gibbons v. Ogden, 9 Wheat. 1, 196 [...] The power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Gibbons v. Ogden, supra, 196. [...] it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states.

In its famous footnote 4, Carolene Products distinguished economic regulations by the government from those that impinged on fundamental individual rights stating that "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth [Amendment]." This has been the understood constitutional interpretation since 1937. But a change is afoot. And this change is being led, at least in principle, by Justice Kennedy.

In the oral argument regarding the constitutionality of the individual mandate, Justice Kennedy said:

“Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed [...] If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is a, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”

For 75 years, the answer has been a clear "no." Indeed, as recently as two years ago, the answer appeared to be "no." But Justice Kennedy may choose to change that in the ACA cases.

In my Sunday post discussing the oral argument on the ACA cases, I noted that in 2010, the Supreme Court issued a decision upholding a federal civil commitment statute in United States v. Comstock. In Comstock, the Court held that:

We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. Sabri v. United States, 541 U. S. 600, 605 (2004) (using term “means-ends rationality” to describe the necessary relationship); ibid. (upholding Congress’ “authority under the Necessary and Proper Clause” to enact a criminal statute in furtherance of the federal power granted by the Spending Clause); see Gonzales v. Raich, 545 U.S. 1, 22 (2005) (holding that because “Congress had a rational basis” for concluding that a statute implements Commerce Clause power, the statute falls within the scope of congressional “authority to ‘make all Laws which shall be necessary and proper’ to ‘regulate Commerce … among the several States’ ” (ellipsis in original)); see also United States v. Lopez, 514 U. S. 549, 557 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276 (1981). [Emphasis supplied.]

The standard is not "has the Congress ever done this before?" The standard is what the Congress has done rationally related to the exercise of an enumerated power. In the case of the individual mandate then, the question is, "Is the individual mandate rationally related to Congress' exercise of the commerce power in enacting new laws regarding the health insurance market (ACA)?" I think we all know the answer to that. The answer is YES!

Justice Kennedy appears to believe otherwise. As stated before, he believes the question regarding the constitutionality of the individual mandate is, does it meet a "heavy burden of justification to show authorization under the Constitution"?

This would be a revolutionary change in our Commerce Clause jurisprudence. Justice Kennedy first hinted at this transformational formulation in his concurrence in Comstock:

Concluding that a relation can be put into a verbal formulation that fits somewhere along a causal chain of federal powers is merely the beginning, not the end, of the constitutional inquiry. See United States v. Lopez, 514 U.S. 549, 566–567 (1995) . The inferences must be controlled by some limitations lest, as Thomas Jefferson warned, congressional powers become completely unbounded by linking one power to another ad infinitum in a veritable game of “ ‘this is the house that Jack built.’ ” Letter from Thomas Jefferson to Edward Livingston (Apr. 30, 1800), 31 The Papers of Thomas Jefferson 547 (B. Oberg ed. 2004); see also United States v. Patton, 451 F. 3d 615, 628 (CA10 2006). This separate writing serves two purposes. The first is to withhold assent from certain statements and propositions of the Court’s opinion. The second is to caution that the Constitution does require the invalidation of congressional attempts to extend federal powers in some instances.

Does Kennedy enunciate a limitation in Comstock? Beyond the rote federalism lines, not really. He stated:

The terms “rationally related” and “rational basis” must be employed with care, particularly if either is to be used as a stand-alone test. The phrase “rational basis” most often is employed to describe the standard for determining whether legislation that does not proscribe fundamental liberties nonetheless violates the Due Process Clause. Referring to this due process inquiry, and in what must be one of the most deferential formulations of the standard for reviewing legislation in all the Court’s precedents, the Court has said: “But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487–488 (1955) . This formulation was in a case presenting a due process challenge and a challenge to a State’s exercise of its own powers, powers not confined by the principles that control the limited nature of our National Government. The phrase, then, should not be extended uncritically to the issue before us. [Emphasis supplied.]

There is no due process or liberty challenge to the individual mandate. But what of Kennedy's admonitions regarding "the limited nature of our National Government"? What is Kennedy driving at? He continues:

The opinion of the Court should not be interpreted to hold that the only, or even the principal, constraints on the exercise of congressional power are the Constitution’s express prohibitions. The Court’s discussion of the Tenth Amendment invites the inference that restrictions flowing from the federal system are of no import when defining the limits of the National Government’s power, as it proceeds by first asking whether the power is within the National Government’s reach, and if so it discards federalism concerns entirely. These remarks explain why the Court ignores important limitations stemming from federalism principles. Those principles are essential to an understanding of the function and province of the States in our constitutional structure. [Emphasis supplied.]

So Kennedy has identified federalism as a limiting principle. And the Court adopted this limiting principle in the non-economic sphere in Lopez. But the individual mandate does not impinge on any federalism concerns. What more can he be thinking of?

Surely not personal liberty. In Comstock, Kennedy concurred in a judgment where the Court upheld a Congressional statute, based on the Commerce power, which provide for the involuntary detention of a citizen of the United States. Talk about impacting a liberty interest. If the Congress, through the Commerce power, can involuntarily and indefinitely detain a citizen, what liberty interest can the Commerce power not reach? Is Kennedy really of the view that the Commerce power empowers the Congress to enact legislation to indefinitely detain American citizens but not to impose a $500 penalty? Really?

In the ACA oral argument, Justice Kennedy asked the advocates to provide him with a "limiting principle." But Justice Kennedy cannot articulate a limiting principle that resides in our constitutional jurisprudence that is applicable to the individual mandate. The reason is there is none applicable.

It does not feel right to Justice Kennedy. This is the entire story. The law is not the problem. Justice Kennedy's "gut" is the problem. And herein we have a revolution of sorts—the Constitution's new limiting principle. One may think of it as an "equitable" principle of sorts: Justice Kennedy's "gut."

In my Sunday piece, I wrote:

Unlike many, if not most, legal commenters, I have no compunction in noting that Chief Justice Roberts is as unprincipled as his predecessor, Chief Justice Rehnquist. He is capable of any vote, even those that fully depart from his stated principles. See Parents Involved. As for Justice Scalia, he is even more unprincipled. [...] Justice Kennedy holds the answer. What Kennedy will do remains the key question, as it so often is. (See Kennedy's deciding votes in the recent 5-4 right to counsel decisions.) What can we expect from Kennedy here? Is he willing to overturn ACA? Does he believe ACA can be treated as sui generis? (To me this requires buying into the activity/inactivity nonsensical distinction.) Is Kennedy concerned about the political fallout of such an action? [...] [W]hat does Kennedy want as a result here? Justice Kennedy does, in my view, enjoy legislating from the bench. And more so than most justices, he has less pretense about it.

Justice Kennedy, it seems to me, wants to strike down the individual mandate. He does not like it. And he seems willing to do it. Does the Constitution require it? It will if Justice Kennedy wants it to.

Thus, the Kennedy "revolution" is upon us. The consequences could be devastating.

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    Remember when many of us said that it was worth (5.00 / 1) (#6)
    by AngryBlackGuy on Wed Mar 28, 2012 at 08:03:09 PM EST
    Voting for a dem POTUS for purposes of the supreme court if for no other reason.

    This is why it is crucial and why this is no time to sit an election out.

    They matter. A lot.

    And Kagan and Sotomayor were crucial in making arguments for the government position when the solicitor stumbled.

    If we lose another seat to the GOP it will be disaster of epic proportions.  And it WILL happen if Obama does not win.

    The choice is clear.

    Well, if BTD is right, (5.00 / 2) (#11)
    by dk on Wed Mar 28, 2012 at 08:12:18 PM EST
    it's too late, and it wouldn't even have mattered if Obama had won in '08, since the 5 votes were already there.

    So, I guess your comment is irrelevant to this post.


    That's pretty (5.00 / 1) (#13)
    by Ga6thDem on Wed Mar 28, 2012 at 08:16:11 PM EST
    much the case I've been making. The supreme court was the ultimate issue back in '04 and I worked and donated for Kerry because of it. That's being said, you're right. It's too late. At best now getting another supreme court justice will just get us not further behind.

    It is highly likely that there will be at least (none / 0) (#22)
    by christinep on Wed Mar 28, 2012 at 10:56:05 PM EST
    one vacancy--and probably more--on the Supreme Court during the next four years.  The issue is the most relevant issue facing us.

    Oops...a little more bluntly (none / 0) (#24)
    by christinep on Wed Mar 28, 2012 at 10:58:49 PM EST
    If one of the 5 conservative justices should leave the Court, the selection of the replacement completely changes the dynamics and the majority. (Consider the total demographics.)

    Bravo! Bravo! and Yes, yes, yes (5.00 / 1) (#20)
    by christinep on Wed Mar 28, 2012 at 10:52:37 PM EST
    ABG: More clearly than ever,THE issue is the Supreme Court.  Now that we may be witnessing the culmination of the Federalist Society's influence & rise to rule via a 5 to 4 majority, we are also seeing a divided court using the margin of one person to jam through radical anti-federal government decisions that all of us will feel.

    In my more optimistic moments, I think that CJ Roberts must surely think about his legacy, the legacy of the Court...and that he must certainly not want to change the course of history by one vote. I have thought that the Chief Justice would want the significant decisions to be backed by unanimity or near unanimity as successful Courts in the past have evidenced. More & more, it seems that CJ Roberts may be a practitioner of the ugly victory without regard to the destabilizing influence on our society that repeats of the Citizens United approach might cause.

    If the Chief Justice searches for & finds a broad unifying principle for these big challenges, then I'll be early in line to acknowledge my errant judgmentalism.  Yet, to date, the only unificiation in the Supreme Court is the radical right's & Federalist Society's philosophy writ large.  If that does become the basis for decision in the present case, then our recourse is to ensure that the 5 to 4 majority switches as soon as possible.  There is every reason to believe that the next Supreme Court nomination may be the most important decision in the federal government.


    If it is one of the more (5.00 / 1) (#34)
    by Anne on Thu Mar 29, 2012 at 08:55:14 AM EST
    liberal justices who retires, and assuming it is Obama who gets to nominate a replacement, that replacement will have to be of the same judicial ilk just to maintain the current 5-4 split.

    I wish I could be as confident as you are that that's what would happen; I know you will give me the examples of Sotomayor and Kagan as proof that it would, but those nominations were made early in the first term.   Who he would choose to nominate to the Court, now that he has a more vested interest in the outcomes of matters before it , is something altogether different;  I don't think we can be so sure that "liberal" is what he would be looking for.


    That part of the discussion (5.00 / 1) (#35)
    by jbindc on Thu Mar 29, 2012 at 09:41:15 AM EST
    always seems to get left out - what if it's one of the liberal justices (my bet for the next likely justice to retire?  Ginsburg).

    Consider too the majority makeup (5.00 / 1) (#36)
    by christinep on Thu Mar 29, 2012 at 09:56:02 AM EST
    Especially consider the length of service, etc., of JJ Scalia & Kennedy.

    You are correct that no one can tell exactly how "liberal" appointees would be in future. One thing we do know: the present "conservative" majority in it's most publicized decisions has evidenced an almost legislative subsumed by ideology approach to jurisprudence than even the most skeptical of us had assumed.  It is one thing to redefine (& occasionally jettison outworn or flawed precedent), but it is something quite disturbing to see so-called conservatives freely tossing decades of precedent to satisy their own activist legislative approach to social policy.  If this Court continues to trod a radical path....  Well, all I can say is that will be a sad day--with sad years to follow--for law & and for those who respect the rule of law in our country,

    In sum:  I'm still choosing to hang onto my initial thoughts that this case won't reveal an ideological venality that I fear to witness.  Or maybe my husband, the political scientist, got this one right early on when he caustically chortled that the whole six hours would be a calculated charade with consequences similar to Bush v Gore and the more recent United Citizens.  


    Then the choice must (none / 0) (#8)
    by TeresaInSnow2 on Wed Mar 28, 2012 at 08:04:41 PM EST
    also be clear if one is against the mandate....by your logic.

    only if by extension (5.00 / 1) (#15)
    by lilburro on Wed Mar 28, 2012 at 08:50:13 PM EST
    you also support a number of other potential conservative Court decisions.

    Not only that (none / 0) (#17)
    by vicndabx on Wed Mar 28, 2012 at 09:23:01 PM EST
    Controlling the spin and shutting down negative narratives once it's clear your choice won't become law.

    It remains confusing for me (5.00 / 1) (#18)
    by KeysDan on Wed Mar 28, 2012 at 09:57:41 PM EST
    that the Administration did not make a forceful case for application of the Tax Anti-Injuction Act.  The argument that the mandate and the tax-derivative penalty are not a tax for purposes of that Act, and later argue that the mandate and penalty are constitutional under taxing power even perplexed some Justices--for example either Alito was being obtuse or he was playing with the Solicitor General in his questions on the first day.  Justice Ginsberg did not seem to subscribe to it, but a case was not made.  In fact the opposite position was taken. Yes, the definitions and jurisdictions may be different in each circumstance, but that might have been a strategy for not hearing the case in an election year.  

    Another point of confusion is why a severability clause was not included in the Act, and, moreover, why the Administration seems to have bet the farm on the  argument that if the mandate is found unconstitutional other provisions are so interrelated as not to be severable (e.g. community rating and pre-existing conditions.)  The examples, of Medicare Part D or even Part B, might be used to counter or be a fall back.

    But, it seems all of these questions may be irrelevant in that the rightist Justices have a long-term agenda and the jettisoning of ACA is a part of it.  If there was a miscalculation it was probably thinking that this would be a constitutional issue when it is a political one.  While memories are short it really was only 12 years ago since Bush v Gore.

    Your last paragraph says it all (5.00 / 1) (#26)
    by christinep on Wed Mar 28, 2012 at 11:00:37 PM EST
    yes (5.00 / 2) (#53)
    by The Addams Family on Thu Mar 29, 2012 at 12:43:34 PM EST
    Justice Stevens was right:

    Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

    Matter of opinion (5.00 / 1) (#43)
    by Slado on Thu Mar 29, 2012 at 11:15:04 AM EST
    Reason Magazine does a better job explaining the other side of the coin.

    The mandate is unique.  It is similar to other commerce cause precedents but it is still different.  If it was a clear cut as you maintain we wouldn't even be in this situation.

    Since it's different it's a matter of legal perception and opinion if the commerce clause covers the mandate.

    This case is precedent setting.   The lower courts said as much when they both ruled in favor and against it.  Meaning that those judges understood that this case would draw a big line or not in the sand regarding the power of congress.

    You feel the mandate is fine and is a continuation of past precedent, some do not.   An honest matter of opinion but what isn't a matter of opinion is that the mandate is different then anything to come before it and should be considered seriously.  

    That is what's happening now and we'll see what the justices decide.

    Greg Sargent (5.00 / 1) (#68)
    by The Addams Family on Thu Mar 29, 2012 at 02:10:05 PM EST
    If this goes down (5.00 / 1) (#80)
    by Socraticsilence on Thu Mar 29, 2012 at 05:46:12 PM EST
    anyone want to ballpark how long it takes to even get the modest gains of the ACA back? I'm guessing 25 years.

    No (none / 0) (#81)
    by Ga6thDem on Thu Mar 29, 2012 at 06:04:06 PM EST
    the preexisting condition part can be immediately restored.If Obama is politically smart, he will write a bill immediately if the ACA is overturned.

    This is going to have to be revisited within the next ten years because the current system cannot hold and more and more people are going to be losing their insurance.

    Even with the ACA, the issue was going to have to be revisited because of some of the problems in the bill for example the last of cost controls.


    i am not an attorney, (none / 0) (#1)
    by cpinva on Wed Mar 28, 2012 at 07:45:15 PM EST
    nor do i play one on tv. further, i did not spend last nite in a comfortable, yet moderately priced hotel room. with that full disclosure.........

    it occured to me, as i have been following the proceedings, that a vote by the court to deem the "individual mandate" portion of the law, or the entire law itself, unconstitutional, would have far reaching ramifications, well beyond the present subject. practically every law passed by congress, since the "new deal", requiring all of the citizens to participate in/pay for something could well be subject to constitutional challenge.

    social security, medicare-medicade, environmental laws, etc. would be put again on the front burner, with a very real risk of being declared unconstitutional congressional overreach. the ramifications, individually and in the aggregate, could be disasterous.

    somehow, if Citizens United is foreshadowing, i don't get the impression the robert's court thinks that far ahead.

    I think (none / 0) (#7)
    by TeresaInSnow2 on Wed Mar 28, 2012 at 08:03:25 PM EST
    it'll have more ramifications for privatization of our government than for government provided services like Medicare and environmental protection.

    Because (none / 0) (#9)
    by TeresaInSnow2 on Wed Mar 28, 2012 at 08:06:09 PM EST
    that's what the mandate is.  It's privatization.  The govt didn't even try to do the health insurance thing publicly.  With any luck if it fails, the precendent will cause other privatization debacles to fail.

    That's (none / 0) (#12)
    by Ga6thDem on Wed Mar 28, 2012 at 08:13:49 PM EST
    what I'm thinking too. I don't see how vouchers which compel you to hand over money to an insurance agency or a private school would stand muster. Also, military contractors would be out of the loop on government money. If they got rid of SS and Medicare there would be h*ll to pay at the polls for the GOP.

    A question. (none / 0) (#2)
    by lentinel on Wed Mar 28, 2012 at 07:46:06 PM EST
    In your view, does the Congress of the United States have the right to mandate that citizens must purchase a product on the private market?

    That's the wrong question (none / 0) (#3)
    by Big Tent Democrat on Wed Mar 28, 2012 at 07:57:28 PM EST
    OK (none / 0) (#5)
    by lentinel on Wed Mar 28, 2012 at 08:02:35 PM EST
    Does the Congress of the United States have the right to mandate that the citizens of this country buy a product from a for-profit business?

    If it is a wrong question, it is still a question.

    Is there an answer?


    Please read the post (5.00 / 1) (#10)
    by Big Tent Democrat on Wed Mar 28, 2012 at 08:08:33 PM EST
    if you are interested in constitutional law.

    If you aren't, then you are in the wrong post.


    I did read it. (none / 0) (#66)
    by lentinel on Thu Mar 29, 2012 at 01:39:23 PM EST
    I found it fascinating and very detailed.

    Especially regarding the Commerce power.

    But somehow, I did not find a way to answer my question.

    C'est comme ça.


    Jefferson was right. (none / 0) (#4)
    by Peter G on Wed Mar 28, 2012 at 07:57:41 PM EST
    And the Tenth Amendment states one of the basic philosophical cornerstones of the constitutional framework.  Even so, the PPACA is nothing but a regulation of the health insurance market, which is an interstate market operating in interstate commerce, and the Act has a clear and rational goal of promoting the general welfare, which is to say, the better distribution of public and private health care.  Comstock was wrongly decided.  But the PPACA is not unconstitutional.

    What is or isn't Constiutional is (none / 0) (#31)
    by BobTinKY on Thu Mar 29, 2012 at 07:50:13 AM EST
    whatever 5 supremes say is or isn't Constitutional.

    Not when I'm posting comments (none / 0) (#78)
    by Peter G on Thu Mar 29, 2012 at 05:02:00 PM EST
    on this blog, it isn't.  Then, it's whatever I say, especially when I'm claiming to be agreeing with Mr. Jefferson.

    Illuminating n/t (none / 0) (#14)
    by Coral on Wed Mar 28, 2012 at 08:42:08 PM EST

    How much (none / 0) (#16)
    by lilburro on Wed Mar 28, 2012 at 08:56:45 PM EST
    room for persuasion do you think there is with Kennedy on this issue?  And who do you think would do it?

    Justice Kagan (none / 0) (#25)
    by christinep on Wed Mar 28, 2012 at 10:59:42 PM EST
    Does she have that much sway already? (none / 0) (#27)
    by lilburro on Wed Mar 28, 2012 at 11:38:42 PM EST
    IIRC Justice Stevens was the great persuader in years past.  BTD seems to be of the opinion, correct me if I'm wrong, that Kennedy is of his own mind on this issue because he likes to legislate from the bench.  I don't know if persuasion has to do with years on the court, argumentative skill, or personality, but I hope someone on our side has it.

    Just hearsay, but (none / 0) (#28)
    by christinep on Wed Mar 28, 2012 at 11:56:35 PM EST
    J. Kagan  is reputed to have exceptional personal interaction & persuasion skills via a deferential, let's-reason-together style. But, like BTD, I suspect that the longtime J. Kennedy follows his own conservative path.  If anything, the practical what-happens-if the legislation goes down may prove to be the avenue...especially since he has acknowledged the economic realities without a mandate/requirement.  The question is how much "burden" does he expect the government to bear in convincing that a measure is necessary.

    She was very charming,self-effacing (and smart!) (none / 0) (#77)
    by magster on Thu Mar 29, 2012 at 03:45:42 PM EST
    ... in her confirmation hearings. I can see her assuming a role as a persuader to a wayward justice who could say "wtf dude...precedent?!" without it being insulting.

    Could have been prevented (none / 0) (#19)
    by diogenes on Wed Mar 28, 2012 at 10:36:33 PM EST
    If they had opted for an open, transparent TAX INCREASE to pay for Obamacare instead of a stealth tax (which the individual mandate is, since everyone seems to agree that sane, young, healthy people won't buy this insurance unless mandated to), then we wouldn't have this case.

    What are you referring to by (5.00 / 2) (#21)
    by Peter G on Wed Mar 28, 2012 at 10:55:17 PM EST
    "this insurance"? The tax penalty applies to anyone who does not have or get health insurance coverage.  The PPACA, unfortunately, does not provide insurance, as a single payor plan would have done.  A "sane, healthy, young person" should definitely have health insurance. Have you never heard of injuries and accidents, not to mention illnesses that can strike anyone at any age?  One attack of appendicitis is enough to throw an uninsured young person into bankruptcy.

    Yes... (5.00 / 1) (#37)
    by kdog on Thu Mar 29, 2012 at 10:14:19 AM EST
    everybody should have health insurance Pete, but that doesn't mean everybody can afford health insurance.

    If you're a healthy 28 year old making 10 bucks an hour with no insurance offered from your employer, you only have so many dollars to work with every week, every month, every year.  You make too much money to be eligible for assistance.  You're left with tough choices to make...I can totally understand such a sane and reasonable person choosing to roll the dice without health insurance...so they can afford gasoline and mandated car insurance to get to work, food to eat, a place to live.  A tax penalty/fine/whatever we call it does nothing but add another burden to such a person.


    So would (none / 0) (#38)
    by jbindc on Thu Mar 29, 2012 at 10:21:48 AM EST
    Walking out of your apartment and falling down the stairs breaking your leg - or worse.  That woyld be a huge burden too, and if you couldn't pay then that burden shifts to everyone else in the firm of higher premiums, and/or the taxpayers being hit.  Also, on a macro level, it affects whether an insurance company stops offering affordable policies.

    You're rolling the dice... (5.00 / 1) (#39)
    by kdog on Thu Mar 29, 2012 at 10:28:19 AM EST
    Yes, I understand that.  If my example person has falls down the stairs we're all on the hook if he doesn't pay the 30k hospital bill.  

    But that doesn't change the fact he can't afford health insurance.  It's not like he's staying up at night dreaming up ways to screw society...he's doing the best he can on ten bucks an hour.


    under (5.00 / 1) (#40)
    by CST on Thu Mar 29, 2012 at 10:40:37 AM EST
    the ACA a single person who made $10 an hour working 40 hours a week would qualify for subsidized insurance.  I'm not sure the exact nature of the subsidy or what it would end up costing, but if they qualify for a subsidy and still can't afford insurance they may also be exempt from the mandate.

    I think it's worth keeping all that in mind when we go through these hypotheticals.


    Excellent point (none / 0) (#41)
    by jbindc on Thu Mar 29, 2012 at 10:47:35 AM EST
    Duly noted... (none / 0) (#42)
    by kdog on Thu Mar 29, 2012 at 10:57:37 AM EST
    but mark me down as highly skeptical Congress covered all the bases.

    Think it is fair to say it is a very tangled web, at the least? And all in an effort to protect insurance company profits?


    Another thought... (5.00 / 1) (#44)
    by kdog on Thu Mar 29, 2012 at 11:18:59 AM EST
    how sane and reasonable is it for a cash-strapped individual to buy a policy to satisfy a mandate, when that policy has a high deductible?  

    They'll cut all them checks to an insurance co. and still have to pull say 5 grand out of their arse if they fall down the stairs.  It just doesn't make sense to shell out all that cash to Blue Cross, even with a subsidy, and still be f*cked if they fall down the stairs.


    Not "fair" (none / 0) (#55)
    by Slado on Thu Mar 29, 2012 at 12:47:13 PM EST
    Have to be careful with that one.

    It's not "Fair" that you/me live in a bigger house than the other, drive a better car, eat better food , don't have better parents, where born with a disability on and on.

    When you get into the "What's Fair" territory then you are starting IMHO to infringe on my rights as an individual because what's not fair for him might be fair for me but since it's not fair for him it doesn't matter what's fair for me.

    Just saying.   At some point if you fall down the stairs you're responsible for your actions.  

    Maybe not 100% but certainly a high co-pay right.


    I'm all for personal responsibility... (none / 0) (#63)
    by kdog on Thu Mar 29, 2012 at 01:09:15 PM EST
    but I'm not prepared to watch a guy with a bone sticking out of leg suffer just because he couldn't afford insurance or was irresponsible and didn't buy insurance he could afford.

    Of course we don't do that now, thank goodness...he goes to the emergency room and gets his leg fixed.  Gets mailed a bill for an exorbitant amount, can't pay it, and wham-o an aspirin costs 20 dollars on a hospital invoice to cover it all.


    Agreed (none / 0) (#69)
    by Slado on Thu Mar 29, 2012 at 02:37:21 PM EST
    but in my mind in your particular case care shouldn't be free.

    If it's means tested I can live with that, sort of a progressive no fault medical system if you will.

    We are swimming in the same pond here.  I only mean to make the point that what most people want for society when it comes to healthcare is not possible.   Unlimited medical care in every circumstance is just not going to happen.  All systems ration.

    We have to come to grips with how and when we ration care.   At some point we have to say no and we must decide how we deliver that no as fairly as possible.


    Anyone who thinks the ACA covered all (none / 0) (#46)
    by Slado on Thu Mar 29, 2012 at 11:29:12 AM EST
    the bases has to have their heads examined.

    The cost estimate was not true.  Speaker Pelosi said we had to pass it to find out what's in it.   They've issued hundreds of waivers to cover up the obvious unintended consequences and the plan hasn't even kicked in.

    It's a terrible bill from any viewpoint and that shouldn't even be debatable.  That so many latch on to the few goodies that could have been done without this monstrosity makes me think of a first time crack user who doesn't realize the free samples on the front end will lead to a lifetime of misery.

    As to Kdog's point the problem is they are making you buy a certain type of insurance.   Not an oh-crap policy where if you break your leg that is partially or totally covered but instead the heavily regulated you must have everything covered policy that a 25 year old simply doesn't need.

    No health savings accounts, no ability to shop around etc...   It's a giant government boondoggle that will be worse IMHO then what we have now.  

    They say it will bend the cost curve, They say it will lead to better health results, etc...   Does anyone actually believe this?

    Simply put this bill if allowed to be implemented in its current form will bankrupt the country further and satisfy no-one except some of the individuals that don't have insurance now and there is no guaranteeing that they will use it the way the great deciders intended.

    It sucks our healthcare system is so mucked up but the ACA (how can they even call it affordable after all?, affordable for who?) makes it worse.  I hope the Supreme Court bails the country out and scraps it.


    It's a terrible bill from any viewpoint (none / 0) (#48)
    by CST on Thu Mar 29, 2012 at 11:40:18 AM EST
    aka "It's a terrible bill from my viewpoint"

    also, where do you get this nugget from "No health savings accounts, no ability to shop around etc..."?

    The gist of your post seems like "oh no, they won't let 25 year olds buy junk insurance".  A broken leg is not the only thing a 25 year old might have to worry about.

    Simply put, you have no idea what you are talking about, and I'm sorry but there is no indication that your "sky is fallying world is over" rhetoric is in any way realistic.

    I'm glad you at least acknowledge at least that some people will have insurance who don't have insurance now.  You know, like sick people.


    I, for one... (none / 0) (#49)
    by kdog on Thu Mar 29, 2012 at 11:49:11 AM EST
    appreciate Slado's food for thought in our discussions of this issue.

    You or I may not agree with all or part of his take on it, but I strongly believe Slado to be sincere in his concerns about ACA.  He is not a knee-jerk bash everything liberal or bash everything Obama guy.  

    Not you CST, I always find you fair and sincere, but some other commenters have been unduly harsh and dismissive with Slado, imho. Thought it worth saying...


    that's fine (none / 0) (#50)
    by CST on Thu Mar 29, 2012 at 11:56:01 AM EST
    I just find that Slado's recent posts have been speaking in absolutes about things that are not absolute.

    Everyone must not all agree that the mandate will establish a new precedent.  People must not all think that this bill is terrible.  Etc...

    Slado is free to his/her opinion, but it's just that, an opinion, and the rest of us are free to disagree with that opinion.


    No worries... (none / 0) (#51)
    by kdog on Thu Mar 29, 2012 at 12:01:31 PM EST
    in hindsight I should have found the old-thread where people we're saying sh*t like Slado is a "f8ck you I got mine" guy, and posted my comment there.  

    Carry on! ;)


    I'm offering my opinion (none / 0) (#52)
    by Slado on Thu Mar 29, 2012 at 12:38:40 PM EST
    And it is just that.

    You're opinion is appreciated even if I disagree with it.

    I admit upfront that I don't trust our federal government to run healthcare.  I simply don't.  IMHO it is one of the main reasons it's as screwed up as it is.


    Governments run healthcare (5.00 / 1) (#59)
    by jondee on Thu Mar 29, 2012 at 12:57:05 PM EST
    just fine in other countries..

    We're not talking about humans creating a perpetual motion machine, or turning lead into gold here..

    Rational, intelligent human beings have the ability to 'run', plan and organize many things quite well when the will is there..

    ..In spite of what the Social Darwinist ideologues
    at Reason would have folks believe..


    Every system has healthcare problems... (5.00 / 1) (#65)
    by kdog on Thu Mar 29, 2012 at 01:19:50 PM EST
    jondee.  There are some things our system does better...if you have the cash.

    Government run systems are definitely better for broked8cks, but not without their problems.

    I don't see the problem with a hybrid of some sort working for us...mandating I buy from Blue Cross however is not what I have in mind, that just reeks of more corporate welfare.


    When I say government run.. (none / 0) (#74)
    by jondee on Thu Mar 29, 2012 at 03:15:06 PM EST
    I mean totally run: by a legitimate we-the-people government (or a reasonable facsimile thereof) -- and the insurence lobby la cosa nostra can go stick it. Of course, first we have to get that hypothetical we-the-people thing up and running.. (details, details..)

    Governments of other countries (none / 0) (#62)
    by Slado on Thu Mar 29, 2012 at 01:03:19 PM EST
    run healthcare for their countries.

    But we aren't talking about other countries.  We're talking about ours.

    Big difference.  And let me qualify my statements.   I don't trust our government to control the insurance market in partnership with private companies.   The post office and Amtrak come to mind quickly.

    I trust Sweden to run their healthcare, I even trust England to run theirs along with a backup private system.

    Unfortunately that's not what this bill does.   This bill empowers the US government to try and control a market system along with private partners.

    I would actually prefer a healthcare for all system then what we've got coming under this bill.  I thought liberals in their hearts agreed with me but they continue to settle for something that from what I can tell they don't really want.


    I don't trust them either... (none / 0) (#56)
    by kdog on Thu Mar 29, 2012 at 12:49:46 PM EST
    nor do I have any faith in insurance co's to run healthcare.  One has no profit motive to provide good service, and the other's only motive is profit.  Neither ends well.

    I've warmed up to the public option idea...pick the devil you wanna dance with, a government run insurance pool or a private one.


    My real problem with the whole healthcare (none / 0) (#60)
    by Slado on Thu Mar 29, 2012 at 12:57:28 PM EST
    mess was that both sides took the opinion that only their way would work.

    That is silly.

    We should have tried many options, like we are trying many energy solutions.

    Instead we got a hyper partisan bill that the other side couldn't support and here we are.

    I know bipartisanship is a problem here but when you are changing something as big as healthcare it really does help to have some buy in from the other side.   There wouldn't be any Supreme Court challenges if half the republicans had voted for it and the ACA had incorporated at least some of their ideas.

    Like I said the Supreme Court may bail us all out and allow congress a redo.


    I think the bill... (5.00 / 2) (#64)
    by kdog on Thu Mar 29, 2012 at 01:11:55 PM EST
    was hyper-partisan in hype only.  Mandates started as a Republican idea.  

    Why do you suppose (none / 0) (#72)
    by christinep on Thu Mar 29, 2012 at 02:47:09 PM EST
    That Republicans in Congress would not support a position that the mandate calling for near universal participation was acceptable when (1) the mandate approach originated in such conservative think tanks as the Heritage Foundation & was the centerpiece in the mirror-image Romneycare in Massachusetts (2) other plans such as the Public Option or the expansion of Medicare for all were rejected out of hand and (3) no Republican plan throughout these years seems to have been put on the table or offered up in any discernible venue???

    Slado: I understand the desirability of bipartisanship...and said so on a number of occasions.  But, it does seem inescapable that the current & recent Republican congressional reps don't want to engage in this area at all.  Healthcare, as a national issue, has eluded reform for generations.  And, of course, there are many interlocking arguments that dotted the rocky landscape leading to the ACA.  And, today, what is the Republican leadership plan...what do they want included, what do they want excluded?  Government-run,  government regulated but privately operated (ACA or variation, e.g.), or the status quo private operation with little or no uptick in government regulation?  Also:  Who pays & how should any change apportion cost ... A principal function of the ACA's mandate?

    Not new questions, not new issues.  Sen. McConnell reportedly says that the Repubs will not be putting forth much in the way of initiative if the mandate fails.  Is that acceptable to you?  (or, kdog, is the sit-on-the-hands variation acceptable to you?).  Fish or Cut Bait Time on the horizon if the mandate is rejected.


    Bill was far more about (none / 0) (#84)
    by BackFromOhio on Sat Mar 31, 2012 at 09:29:33 AM EST
    health insurance than healthcare

    The nexus (none / 0) (#85)
    by christinep on Sat Mar 31, 2012 at 12:07:24 PM EST
    is that the expansion of health insurance to  near universal coverage expands the access to preventive as well as necessary healthcare. The connection is real...in law & otherwise. (Of course, the conservative opponents have separated the two in legal argument completely so as to avoid the delineation of the "limiting principle" sought by some members of the Supreme Court.  That is, as soon as the nexus is acknowledged, one also understands the clear connection between access & cost apportionment with the broader delivery of health services.)

    Nothing near universal about it (5.00 / 0) (#86)
    by BackFromOhio on Sun Apr 01, 2012 at 11:30:56 PM EST
    Under the best of conditions, there would still be millions who are not covered.  In addition, the obligation to buy expensive insurance or pay a penalty does not mean access to healthcare or insurance. Even 'in-network' only plans are now almost $700/month; even if there are cheaper ones, say $400 per month, it is still cheaper to pay the penalty.  In addition, typically, the cheaper the plan, the narrower the coverage.

    A few things (none / 0) (#75)
    by Ga6thDem on Thu Mar 29, 2012 at 03:16:57 PM EST
    you don't realize (I'm not a fan of this bill either).

    1. Actually there will be some bending of the cost curve but not enough. The more people you have insured the less cost shifting is going to go on so it actually would help on that account.

    2 Health savings accounts are a joke. I have dealt with them and the only people who think they are great are either people who have never dealt with them or never been sick.

    3. If you think shopping around is a solution, then you've never been on the market for an
    individual policy where are the prices are virtually the same.

    The delicious irony in all this is that if the supreme court does overturn it, then there will never be a Ryan plan and vouchers will be ruled unconstitutional too.


    No bar to 'cost shifting' (5.00 / 0) (#87)
    by BackFromOhio on Sun Apr 01, 2012 at 11:53:00 PM EST
    There is no cap on what health insurers may charge.  Query whether the increasing cost to consumers of healthcare insurance has to do with 'cost-shifting' or just greater profit margins?  I think the latter; I believe health insurance companies had record profits this year.

    Yup, I have no doubt (none / 0) (#82)
    by NYShooter on Sat Mar 31, 2012 at 04:26:00 AM EST
     Congresses will "cover all the bases."

    I mean, look what they did with the "Donut hole" on Part D, prescription meds, in Medicare. My neighbor I've been writing about here, 77 years old, S.S. only source of income, Out of pocket donut hole cash: $4700. Guy takes home less than 10K a year, and half goes to Big Pharma.

    Pfizer could at least put some calories in their pills, since his choice comes down between food or meds.

    We are one big effen sick society.


    You make important points about (5.00 / 1) (#45)
    by KeysDan on Thu Mar 29, 2012 at 11:21:55 AM EST
    affordable health insurance, but I would add that the philosophy of health care coverage needs to be more ingrained as a part of the course of living, not dissimilar to that of food and shelter. A roll of the dice take on coverage is too cavalier and too devoid of reasonable introspection of the frailties and fragilities of good health, and life.  

    The ACA attempts, albeit in a flawed and complicated manner, to address affordability for the poor, working poor and lower wage category.  When sickness or injury presents, attitudes are 'doc, do whatever it takes to make me better, throw all costs to the wind.'  A return to good health, often brings with it a return of the old attitude--until next time.  

    Medicare for All is what is really needed (although costs are still involved), but that is not what is on the table, and rejection of ACA will not put it there--at least, not for a very long time. And, a health problem, and not necessarily at catastrophic one, can financially devastate people of even substantial means.  


    And can financially devastate... (5.00 / 0) (#47)
    by kdog on Thu Mar 29, 2012 at 11:38:28 AM EST
    even with health insurance.

    I know our plan at my job has been whittled down to the nub...higher co-pays, coverage caps, etc. Co-workers who take medication regularly here say they're have a hard time just affording the copays.

    There comes a point where it becomes too flawed and complicated to be worth it.  

    I think if our leaders made more of an effort to educate the public about the benefits of Medicare for all, it could be on the table...but perhaps that really is impossible in our highly partisan, wedge-driving corporate media, pols in the pocket of insurance co's enviroment.  Depressing thought.  


    The elephant in the room is (none / 0) (#54)
    by Slado on Thu Mar 29, 2012 at 12:43:38 PM EST
    Our medical technology has outpaced our ability to pay for it.

    150 years ago this wan't an issue because the local doc came by, told you you where screwed, everyone said a prayer and that was that.

    150years ago I'd be long gone at the age of 23 and no one would have known why.  They would have said it was bronchitis and a shame but guess what?  People die all the time.

    So the question is how do we ration?   We have to ration in some way because we can't afford collectively to do everything possible for everyone.  

    We have to find a way to ration care and I for one don't trust the government to do it.   I could be wrong.  Again just my opinion.


    Though I wonder... (5.00 / 1) (#58)
    by kdog on Thu Mar 29, 2012 at 12:54:28 PM EST
    if we've really outgrown the ability to pay for it, or outgrown the ability to pay for it and the exorbitant compensation lavished on health insurance company executives.

    So much money gets sucked out of the healthcare system for things having nothing to do with actual healthcare...how do we tackle that?


    Why "wonder"? (5.00 / 1) (#61)
    by jondee on Thu Mar 29, 2012 at 12:59:19 PM EST
    that's half of it right there.

    Their precious profit margins..And life styles.


    I agree with you KeysDan in premise (none / 0) (#57)
    by Slado on Thu Mar 29, 2012 at 12:52:26 PM EST
    In my opinion it was a noble idea horribly executed.

    Our lawmakers must be held to a higher standard then just giving it the old college try.

    The bill was rammed through congress, was not supported by the public at large and was just a mess.

    It had perfectly noble and appreciated intentions but that's just not enough.  

    There where better ways to get the uninsured access to healthcare and this was a pitiful attempt in its execution in my opinion and shouldn't be allowed to stand just because it had our best interests at heart.

    I appreciate that it would be a waste of a lot of money and 2 years of political hardship but IMHO it's better to scrap it and start over.


    Your frustrations with ACA (5.00 / 1) (#70)
    by KeysDan on Thu Mar 29, 2012 at 02:38:19 PM EST
    are shared as are your thoughts on better ways to accomplish national goals for health care.  It was a miscalculation, in my view, that President Obama and the Democrats did not work toward a Medicare for All.  And, if that was not politically feasible and private insurers were to be a primal manner for coverage, greater efforts should have been made to re-organize and regulate insurers to approximate public utilities (e.g., closer to the Swiss model).  Expansion of Medicaid, as one of the other components of ACA, offers promise,  but suffers from welfare characterizations and the associated political vulnerability.  

    So for sure,  ACA is not ideal. But then the ideal is often beyond reach. Disappointment has been left unabated by a poor defense and explanation by the Administration of health care and what is in the Act,  The political challenge has been made easier than it should be.   And, the Supreme Court Justices questions, whether they should be registered as being singularly obtuse,  politically-motivated, or just plain old insulting (e.g., making comparisons between health care and cellphones, burial services and vegetables)  adds to the disenchantment.  

    However, I try to keep in mind some important history before throwing in the towel: The Medicare Catastrophic Coverage Act of 1988 (signed into law by Reagan) was repealed a year later based on a lack of understanding by the very people it was intended to help. The Act expanded coverage of hospital stays, at-Home care and prescription drugs (a forerunner to Part D).  The furor, which focused only on perceptions of cost increases, although a bargain, rivaled that of Tea Party convention.

    Congressman Rostenkowski, an architect of the Act,, was confronted in his district with vitriolic intensity.  An elderly woman threw herself on his Oldsmobile, clinging to its hood ornament, as he accelerated in an attempt to flee.

    With ACA, we are not now choosing between the lesser of two evils. We have an imperfect and complicated Act to work with, and improve, versus, nothing.  And, nothing is a big void for just too many citizens.


    Good points (none / 0) (#73)
    by Slado on Thu Mar 29, 2012 at 02:51:31 PM EST
    As I state in another post I worry that the protracted partisan fight over this bill will delay any good results.

    No matter what the Supreme Court does this act will be fought over for decades unless it's struck down.

    What happens if Romney is elected and repeals it, or a Republican congress battles Obama for 4 years trying to defund it, or passes bill after bill that Obama is forced to veto?

    We can't know the end result so in my view start over.  

    Rosie scenario - Obama uses this defeat to get reelected and puts a good bill together with a bipartisan congress.  He can always blame Pelosi and Reid after all.


    Bipartisanship (5.00 / 1) (#76)
    by Ga6thDem on Thu Mar 29, 2012 at 03:25:18 PM EST
    is a fantasy. The GOP of today is not the GOP of old. If Obama proposed a single bill ending the preexisting conditions clause I doubt he would have one Republican vote. That being said I think he should have done it that way and dared the GOP to vote against it. They would have had to answer to the voters for their vote.

    it hasn't even been executed yet (none / 0) (#67)
    by CST on Thu Mar 29, 2012 at 01:54:13 PM EST
    so how do you know it will be horribly executed?

    The bill was "rammed" through congress.  Do you know any other way of passing a bill these days?  Cuz I don't see it.

    I guess my feeling on this whole thing is that you are writing an obituary for something that isn't dead yet.  You are proclaiming it a failure before it starts.  I say let's see what happens first.

    My sense is that once this is in place there will be a lot of political fallout if it fails, no matter who is running the show.  Which means there will be significant political incentive to make it work and fix problems that arise.  If Mitt Romney is president while the mandates go out - and people are struggling to pay them - Mitt Romney will pay that political price regardless of the fact that Obama passed the bill.  Most major legislation evolves significantly over time.  It's our duty as voters to make sure that we elect people that will evolve it in the right ways.  My personal feeling about this is there is too much real meat in here to throw it all out.  Too much is at stake.


    I appreciate your concern (none / 0) (#71)
    by Slado on Thu Mar 29, 2012 at 02:45:30 PM EST
    i don't share it but I appreciate it.

    I will point out that Medicare was not passed the way this healthcare bill was.

    Even the Patirot act had some bipartisan by in.  Why?

    Because the majority of the country supported it.

    This bill was a democrat invention and they where the only ones that supported it.  Even if it will work and it was a good idea turning half of the country off to what you do is not a good idea.   Either way.

    Right now 50% percent of the country thinks this is the worst thing ever.  More than that think the mandate is unconstitutional.   It's a big hot mess.

    Maybe the Supremes will uphold it and those on the right will just have to try and fix it the old fashioned way.

    what will that get us?  A decade or more of fighting over health care.



    You remember the definition (none / 0) (#83)
    by NYShooter on Sat Mar 31, 2012 at 04:32:49 AM EST
    of a camel? I thoroughbred racehorse.....designed by a committee.

    When that mega load of cash hit the Capital Floor, and after our noble leaders gorged themselves on it, like whalers did with the whale and it's blubber, you end up with what we have now.


    And how, pray tell, were they ... (5.00 / 2) (#29)
    by Donald from Hawaii on Thu Mar 29, 2012 at 05:22:36 AM EST
    ... going to get a tax increase passed through Congress, given that 60 votes are needed in the Senate nowadays.

    If this goes down, Republicans will own it. And if I, as a 3-time cancer survivor (twice Hodgkin's lymphoma and once melanoma), lose my insurance coverage again because I'm deemed high risk with pre-existing health issues, I will hold them collective responsible, with no exceptions.

    This isn't some game. We're talking about my life here, literally -- and there are lots of others who will feel similarly.


    I thought of people in your circumstances (5.00 / 1) (#33)
    by oculus on Thu Mar 29, 2012 at 08:07:19 AM EST
    whencircumstances when the court reporter inserted "LAUGHTER" in the transcript of day 3 argument

    Looks like Kennedy is shaping limiting principles (none / 0) (#30)
    by BobTinKY on Thu Mar 29, 2012 at 07:46:02 AM EST
    from the penumbra of federalism:

    "The opinion of the Court should not be interpreted to hold that the only, or even the principal, constraints on the exercise of congressional power are the Constitution's express prohibitions. "

    Shades of Griswold!  I wonder how the right wingers will deal with such blatant creation & importation of rights into the Constitution.

    No doubt it, like the unprecedented  judicial activism of the Rehnquist/Roberts courts, will be deemed just fine by the Right when it serves their agenda.

    If the Justices do not wish (none / 0) (#32)
    by oculus on Thu Mar 29, 2012 at 08:02:48 AM EST
    to read all 2700 pp. of the Act and it's legislative history, their recourse is to decide the accept Mr. Long's day one argument, conclude the mandate is Constitutional, or strike the entire Act as non-severable.  

    Or (none / 0) (#79)
    by Socraticsilence on Thu Mar 29, 2012 at 05:44:40 PM EST
    resign you know what with being unwilling to do their jobs and all.

    Hmm (none / 0) (#88)
    by Euro News Magazine on Wed Jun 20, 2012 at 04:16:20 AM EST