The SCOTUS and ACA

By Big Tent Democrat, Section Supreme Court
Posted on Mon Jun 25, 2012 at 01:44:27 PM EST
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For those who may have missed it, I wrote a number of posts on the challenge to the Affordable Care Act. Here are links to some of them:

Bloomberg: 'Obama health law seen valid, scholars expect rejection'

The SCOTUS: Is an extreme constitutional winter coming?

What's at stake: The SCOTUS and undoing The New Deal

Prof. Jack Balkin on 'Living Originalism' and the constitutionality of the Affordable Care Act

The contorted contours of Congressional power according to the radical Roberts Court

When The Court Said Congress Could Regulate "Inactivity"

Supreme Court: Is the mandate severable from Affordable Care Act? Is Medicaid expansion permitted?

Supreme Court, Affordable Care Act: Is the mandate constitutional?

One perspective regarding the Supreme Court and the Affordable Care Act

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The SCOTUS and ACA | 38 comments (38 topical)

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Doubled down on Citizens United (5.00 / 1) (#15)
by Militarytracy on Mon Jun 25, 2012 at 05:38:20 PM EST

5 Douche bags vs. Democracy

Any revised predictions, post AZ immigration (none / 0) (#1)
by oculus on Mon Jun 25, 2012 at 02:57:04 PM EST

law decision?

If legal precedent and reasoning (5.00 / 2) (#7)
by Peter G on Mon Jun 25, 2012 at 04:39:07 PM EST

drive the decision(s), the Act will be upheld. If politics prevail, then it will fall. There is no predicting, with the Supreme Court, which approach the majority will take.


Disagree (none / 0) (#8)
by Slado on Mon Jun 25, 2012 at 05:12:39 PM EST

I think a legal argument can be made either way for and against the mandate.

To me it boils down to a simple question. Does the mandate take prior precedent too far? Those of the left say no and those on the right say yes.

I think either side shows it's partisanship when they say the court will be incorrect if they rule for or against.

BTD has clearly laid out his case for why it should be upheld. I have also read equally clear articles on why it is unconstitutional.

As with all trans-formative legal cases it will be a tightly split decision (as it should be) because the question is not so clear. If it where we wouldn't even be here.

What we can all agree on is there will be no happy campers when the ruling comes down and the next round will play out in November.


: There is one way there will be happy (none / 0) (#10)
by Buckeye on Mon Jun 25, 2012 at 05:25:46 PM EST

campers, throw out the entire law. The right would be completely happy with that. Any other decision would leave some unhappy (even if law is completely upheld, the left would not be happy since it was such a disappointment - even if they agree that would be the right decision from the court).

I think politics is (none / 0) (#12)
by KeysDan on Mon Jun 25, 2012 at 05:29:39 PM EST

a given but the issue, as you state, is will it prevail. And, given Scalia's peep show in the Arizona case, I worry that we may get legal precedent without reasoning. In that case, Scalia did discover precedent, but it seemed to be pre-186l precedent, where he notes that states are sovereign (except Montana) and that in the past they enacted laws restricting the immigration of certain classes of aliens, such as in the Southern states, freed blacks. And, I suppose if he relies on original intent, he will likely look askance at health care not in vogue in 1776--although coverage for blood letting and leeches will probably be approved, mandate or not.


Scalia is into "ends justify the means" (none / 0) (#16)
by christinep on Mon Jun 25, 2012 at 06:07:39 PM EST

Montana...sovereign state? States rights (no, that would be Arizona...ah yes, the Articles of Confederacy.)
It is searching to hard to understand his "philosophy" of the judiciary. That seemls to have been left behind some time ago. But then I forgot a philosophy that might fit: Robert Morgenthau's international law philosophy known as Might Makes Right.


Politics did not prevail today (none / 0) (#17)
by oculus on Mon Jun 25, 2012 at 07:19:18 PM EST

re AZ immigration law.


: Agreed (5.00 / 1) (#18)
by Peter G on Mon Jun 25, 2012 at 07:45:24 PM EST

A perfect example to illustrate my point that Supreme Court outcomes are not predictable on a purely political basis.

: Yes, politics did not prevail (none / 0) (#25)
by KeysDan on Tue Jun 26, 2012 at 09:36:25 AM EST

in the Arizona case, but upholding the section that requires officers to check the immigration status of anyone they stop, arrest or detain on some other legitimate basis if the officer has a reasonable suspicion that the person is in the country illegally, finds the majority opinion avoiding the political ramifications of the law's intent--to harass Hispanics and create fear of detention However, the Court forged a balanced opinion. Probably, a more sweeping decision would not have garnered the five votes needed. As for the politically-laden dissents, well that's a dancing horse of a different color.

Not really (none / 0) (#2)
by Big Tent Democrat on Mon Jun 25, 2012 at 02:59:43 PM EST

Mandate and related provisions out.

Medicaid expansion probably survives as severable.


Agreed (none / 0) (#3)
by Slado on Mon Jun 25, 2012 at 03:06:31 PM EST

I think we'll have a ruling that no one will like.

Kind of like the law! ;)


the result would please me (5.00 / 3) (#4)
by Big Tent Democrat on Mon Jun 25, 2012 at 03:07:48 PM EST

The reasoning that will support it will scare the sh*t out of me.


If Medicaid expansion survives (5.00 / 1) (#11)
by Militarytracy on Mon Jun 25, 2012 at 05:27:25 PM EST

I can deal. What about pre existing conditions covered, and no more denial of services, and 80% of your premium going for services or improvements?


yea (5.00 / 1) (#14)
by CST on Mon Jun 25, 2012 at 05:35:34 PM EST

there's a lot of important stuff in there beyond the medicaid expansion. My worry is that the denial of services/pre-existing conditions stuff ties directly into the mandate - they don't want people waiting till they get sick to buy insurance.

I hope the only thing to go is the mandate. If that's the case, in a lot of ways it would be a policy win, but at the cost of a huge legal loss with baaad long term implications.

For those in favor of single payer, or any other improved version of health care, if they strike down the mandate - I don't see how we're gonna get there.

I can live with the short term policy result of losing the mandate, but I'm worried about losing the possibility for any future reform in the process.


Medicaid expansion will not be funded (5.00 / 1) (#20)
by caseyOR on Mon Jun 25, 2012 at 11:12:41 PM EST

no matter what the Supremes decide unless the GOP loses big in November.

Congress will not vote to fund the expansion. States have been cutting the Medicaid rolls for the entirety of this recession/depression. Here in Oregon we hold a lottery to determine who among the thousands of Oregonians who qualify will snag the coveted Medicaid slots. So, already many many people who qualify under the current and more restrictive rules lose out. Expansion just means more people losing.

And if the mandate falls, but the pre-existing conditions rule stands, expect to see premiums skyrocket. Sure, insurance will be available, but who will be able to afford it?


I'm not sure how much longer the Republicans (none / 0) (#22)
by Militarytracy on Tue Jun 26, 2012 at 08:16:11 AM EST

can continue to make it clear that they hate their constituency. It isn't just Democrats and Liberals who have lost their jobs and their retirements. It isn't just Democrats and Liberals who can't afford their insurance, their deductibles, have a pre-existing condition, have no insurance. Republican party leaders have been able to get a swathe of Americans to vote against their own best interest by creating a rooting for football teams atmosphere, but we can really only do that for entertainment purposes and nobody can afford entertainment any longer. This is one of the reddest states in the country. This state is NOT energized to vote Republican today. This state is scared and doesn't know what the hell to do because they have sworn the only Democrat they can vote for a Dixiecrat and that ideal is destroying them right now. They are depressed, they are deeply confused and scared they might be doing damage to themselves and may have in the past, they are not energized to vote.


I keep (none / 0) (#23)
by Ga6thDem on Tue Jun 26, 2012 at 09:35:17 AM EST

thinking that they will soon have enough but then they go back for more.


But Scalia is out there ranting (none / 0) (#26)
by Militarytracy on Tue Jun 26, 2012 at 12:05:15 PM EST

like a full on loon. Makes me smile. Let the freak flag fly my man so that everyone can clearly see you :)


He doesn't care (none / 0) (#27)
by jbindc on Tue Jun 26, 2012 at 02:28:45 PM EST

He's got a lifetime gig.


He's practically immortal at this point? (5.00 / 1) (#28)
by Militarytracy on Tue Jun 26, 2012 at 03:09:08 PM EST

It is disappointing how such an evil can remain ageless, Lindsay Lohan looks more scuffed up in the mornings. And I ask myself, if a young Abraham Lincoln Vampire Hunter currently lived, would Scalia turn up missing?


Lindsay Lohan (none / 0) (#29)
by jbindc on Tue Jun 26, 2012 at 03:27:43 PM EST

Has done a lot more drugs in her lifetime than Antonin Scalia, is my guess. Between that and the drinking, THAT will age you quickly.


You have not one shred of proof (5.00 / 2) (#30)
by Militarytracy on Tue Jun 26, 2012 at 04:26:58 PM EST

that Scalia has done fewer drugs or for that matter "drinks" of some pungent kind. I'm pretty sure he bathes in the blood of virgins.


Uptight Scalia? (none / 0) (#34)
by jbindc on Wed Jun 27, 2012 at 06:38:42 AM EST

Drinks maybe. Drugs? No. I would bet my life savings on it.


some of us consider (none / 0) (#36)
by CST on Wed Jun 27, 2012 at 10:26:40 AM EST

alcohol a drug.

Also, I wouldn't assume too much due to uptightness. Frankly that just suggests more one kind than another.


Yes, (none / 0) (#37)
by jbindc on Wed Jun 27, 2012 at 10:32:54 AM EST

Alcohol is a drug as well.

Which goes to my point - drug, alcohol and tobacco consumption age you - especially physcially, mentally, etc. Ever look at the lines around a smoker's mouth, their fingers, their eyes, their skin? Ever see how old junkies look? Ever see how alcoholics age?

Now I'm going to get slammed with the usual "but I know someone..." claptrap. Save it. As many on the left like to say - "science doesn't lie".


: stop arguing with nothing I've said (none / 0) (#38)
by CST on Wed Jun 27, 2012 at 10:45:01 AM EST

I'm not gonna slam you for anything you wrote besides the super passive aggressive bit at the end because other than that I agree with you.
If you are saying Scalia hasn't aged due to heavy drug use, I'd say it's kind of hard to tell, especially as weight gain can often make you look younger, so it would counter some of the gauntness. But I also wouldn't assume he's an addict just by looking at him.

I don't know how long Democrats (none / 0) (#31)
by Slado on Tue Jun 26, 2012 at 04:36:33 PM EST

can keep making promises they can't afford to pay.

Look no farther than Europe for what happens when government constantly gives out goodies and borrows money to pay for it.

25% unemployment is what you get.

Rather have a job then get free birth control.


: If you cut Social Security (5.00 / 1) (#32)
by Militarytracy on Tue Jun 26, 2012 at 04:46:27 PM EST

You cut more dollars right out of the ass of our economic demand. Those are dollars that go directly in, they hit the street. They don't go gambling on Wall Street. That money is a huge economic multiplier. Cutting anything outside of overpayments that the government might be paying to those who aren't really any more deserving than anyone else is insanity, and you are nuts....coo coo....dumb as a post.

: If banks fail, people are still fine (none / 0) (#33)
by Militarytracy on Tue Jun 26, 2012 at 04:49:39 PM EST

Just ask Argentina and Ireland.

I'm waiting to see (none / 0) (#5)
by andgarden on Mon Jun 25, 2012 at 03:32:36 PM EST

how Roberts extracts himself from his vote in U.S. v. Comstock. And also, whatever happened to the Salerno standard for facial invalidity?

If the answer is just "because federalism and liberty," I will laugh. I hope they at least try to construct a plausible justification.

Activity/inactivity isthe escape (5.00 / 1) (#6)
by Big Tent Democrat on Mon Jun 25, 2012 at 03:49:59 PM EST

Balkin has an interesting theory on how the opinions might be divided.


The sound you hear (none / 0) (#9)
by andgarden on Mon Jun 25, 2012 at 05:17:41 PM EST

is me banging my head against the desk!


: Get used to it (5.00 / 1) (#13)
by Big Tent Democrat on Mon Jun 25, 2012 at 05:30:08 PM EST

Thanks (none / 0) (#19)
by kmblue on Mon Jun 25, 2012 at 07:52:51 PM EST

for the links, BTD. And if you leave Talk Left, kindly leave a trail of bread crumbs for me to follow.

Assuming the worst (none / 0) (#21)
by NYShooter on Mon Jun 25, 2012 at 11:23:46 PM EST

what do you think Obama's response will be?

Will this finally be all out war vs. The Right, or "the people have spoken bull?

Would it be a plus, or minus, during this election year? I think it could go either way, depending on how he plays it.

Interesting.

I really wish you would cross post (none / 0) (#24)
by sj on Tue Jun 26, 2012 at 09:36:05 AM EST

Much as I would like to read your diaries, DKos is not work safe. Jeralyn's rules about profanity ensure that this site will never be blocked. DKos, not so much.

Anyway, I really wish you would cross post. You've already done work, right?

So, (none / 0) (#35)
by jbindc on Wed Jun 27, 2012 at 09:26:11 AM EST

Those reading the tea leaves are predicting that since the way justices are assigned to write the opinions and dissents, and since CJ John Roberts did not author the Arizona opinion or the Miller opinion released on Monday, there is a very good chance that he is writing the opinion in the ACA case. (Which also wouldn't be out of character, since this is a landmark case).

I've read elsewhere, that based on what order the justices have written, "some" predict that Ginsburg will write the dissent [if she, of course, disagrees with the CJ].

What could be fun is if the Court actually severs the bill, even though no severability clause was written into the law (but the Court has done that in the past). The problem is - the government argued that it can't be severed, because the mandate and pre-existing condition aspect and "death sprial" aspect are so closely entertwined (and the justices would then have to go through the entire 2700 page bill to sever items page by page).

We could also have majority opinions and dissents on the mandate and majority opinions and dissents on the Medicare section, etc. (if severed), but even if they don't sever it, I also expect more than one concurring opinion and more than one dissenting opinion on this one.