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Old 01-31-2011, 09:46 PM   #101
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“I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that, ‘If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house’” .

If the Senator Obama quote is true; I am almost speechless. Not as a result that Obama said it; but that the news media did not find the quote and raise it when the bill was being discussed.

The point isn't if you agree or disagree, it is that the quote is in direct opposition to the current law and should have been raised.

I know, from working around network news people that they are no mental giants and research is relegated to entry level positions. But, there are services - Lexus/Nexus and others that you can use for basic research.

News journalism would be blind if not for hindsight. It is the only 'profession' that has no standards at all. To become a beautician is more difficult.
Happy 5000th post, DEX!
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Old 01-31-2011, 09:50 PM   #102
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Happy 5000th post, DEX!
Thank you - I thought it was a good one.
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Old 01-31-2011, 10:33 PM   #103
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The 20-something attorneys general went jurisdiction-shopping.

So yeah the politics of the judge are germane.

It's going to come down to Kennedy.
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Old 02-01-2011, 12:10 PM   #104
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So, let us say healthcare reform is found unconstituional by the supreme court.

Health care may be high-court nail-biter - Yahoo! News

What happens to all the rules that are already in place..Such as HSA owners and the 2011 rule that OTC purchases don't qualify unless by presciption... Will the say, never mind, they do qualify again...

Sounds like "fun" in the future
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Old 02-01-2011, 12:13 PM   #105
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It's going to come down to Kennedy.
It usually does these days. He reminds me of the justice portrayed in "First Monday" -- the one moderate guy in between the conservative bloc and the liberal bloc whose vote usually swings the decision.
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Old 02-01-2011, 12:21 PM   #106
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So, let us say healthcare reform is found unconstituional by the supreme court.

Health care may be high-court nail-biter - Yahoo! News

What happens to all the rules that are already in place..Such as HSA owners and the 2011 rule that OTC purchases don't qualify unless by presciption... Will the say, never mind, they do qualify again...

Sounds like "fun" in the future
Well if they carry out Vinson's decision, they'd have to revoke every part of the law, including some provisions which have already started to be implemented.

Even the GOP members of Congress who want to repeal have said they want to keep certain popular provisions, like banning the denial of coverage due to preexisting conditions.
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Old 02-01-2011, 12:33 PM   #107
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...

Even the GOP members of Congress who want to repeal have said they want to keep certain popular provisions, like banning the denial of coverage due to preexisting conditions.
No problem, if they want they could then write a bill that is specific to that issue. And it would probably be short enough to be read and understood. And it probably wouldn't have 1099 fiascoes in it or special provisions to make it acceptable to specific states (if it does, it should be criticized and renounced).

However, you can't really allow previous conditions w/o other changes. Insurance really can't work that way.

-ERD50
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Old 02-01-2011, 12:41 PM   #108
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Well, at least Grandma will be safe from the socialist takeover by all those private insurance companies.

Congress can get to work on privatizing Medicare and Social Security, free from the distractions of re-legislating last session's battles.

The more things change, the more they remain the same...
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Old 02-01-2011, 02:04 PM   #109
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So, let us say healthcare reform is found unconstituional by the supreme court.
At that point a serious effort should be made to repeal medicare and level the playing field for the privately insured.
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Old 02-01-2011, 07:29 PM   #110
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The 20-something attorneys general went jurisdiction-shopping.

So yeah the politics of the judge are germane.

It's going to come down to Kennedy.
Yes, there was careful judge shopping. The Obama quote was not relevant to the case and seems inappropriate to include in the decision (I have not read the decision yet).

I understood that the severability issue was not an oversight, at least with respect to the individual mandate. If the mandate is removed, then the provisions regarding no preexisting condition exclusions don't work. (Just wait to buy insurance when you get sick and get it immediately.) Substantial revisions to the law would be necessary, probably requiring preexisting condition waiting periods if you are not moving from one policy to another. A burden on those are sitting out there uninsured because they can't afford insurance.

The mandate also was a cost control measure.
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Old 02-01-2011, 08:02 PM   #111
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Currently two federal judges have found the law constitutional and two have not. The "nots" have not delayed implementation of the law.

(FWIW, there were judges who found social security unconstitutional when it was enacted.)
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Old 02-01-2011, 08:03 PM   #112
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I understood that the severability issue was not an oversight, at least with respect to the individual mandate. If the mandate is removed, then the provisions regarding no preexisting condition exclusions don't work.
I'm sure you are right--the lack of a severability clause was not an oversight.
Judge Vinson describes in his ruling looking for a way to reject the mandate while preserving the rest of the law. He said that he couldn't/shouldn't do it because (sumarizing here):
-- The fact that the severability clause was in an earlier version and then taken out indicates that the whole package was meant to be taken as a whole.
-- The law is full of interdependencies, removing the mandate and trying to re-assemble the law is beyond the proper role of the judiciary..
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In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions--which, as noted, were the chief engines that drove the entire legislative effort--for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone.
Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress' main purpose and primary objective in passing the Act. The statute is, after all, called "The Patient Protection and Affordable Care Act," not "The Abstinence Education and Bone Marrow Density Testing Act." The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.
I agree with the editorial writers who are saying that Judge Vinson's approach is exactly the opposite of "judicial activism", since he did not engage in selective sculpting of the law to bend it to his will. He found it unconstitutional and rejected it.
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Old 02-02-2011, 09:21 AM   #113
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I agree with the editorial writers who are saying that Judge Vinson's approach is exactly the opposite of "judicial activism", since he did not engage in selective sculpting of the law to bend it to his will. He found it unconstitutional and rejected it.
Well, I believe judicial activism is a political term more than a legal position. I do not find it useful. The commerce clause and many other parts of the constitution are vague and undefined so judges have to interpret them based on a variety of factors, including precedent. No matter how much of a strict constructionist you claim to be, you still have to interpret the language in light of the facts and what has gone before. Personally, I would argue this judge did not follow the proper analysis based on precedent regarding the commerce clause. So arguably he "selectively sculpted the commerce clause and bent it to his will." After all, there is little that effects commerce in the US today like health care.


The real problem is that with provisions like the commerce clause any judge can manage to rationalize their position to come to the decision that fits with their world view. I suppose you could call this activism, but no judge believes they are activists, they honestly believe that they are properly interpreting and applying the law. A recent example is the first amendment case which threw out limitations on corporate campaign spending. This was a conservative court that made the ruling, and arguably it was a shift in doctrine. A conservative court also did a very broad interpretation of the commerce clause in a case regarding federal criminalization of marijuana grown for personal, medical use, allowed under California law. I find neither of these decisions especially "conservative" and certainly are broad, sweeping interpretations of constitutional provisions. Let us see if they are consistent.
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Old 02-10-2011, 07:33 PM   #114
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