The Moment of Truth

[Gone4Good]

In that light, if they decide it is unconstitutional, I think the whole thing should go. I don't think it is reasonable for those judges to decide what would should stay and what shouldn't. In some cases, issue X,Y or Z was added to get a State to go along with the mandate - but can the judges 'know' this - should they try to fathom that? I don't think so. Make it all or nothing, and let Congress put the pieces back together again, and make it Constitutional this time - that was their job.

If the mandate is deemed unconstitutional, the correct thing to do is to strike the mandate and let Congress address whatever problems arises if it so desires. The court doesn't need to comb through the law to judge the impact, nor should it. Congress has the power to strike down its own law in a single paragraph of legislation - why should the court take this extraordinary step to invalidate a law that doesn't even fully take effect for another year and a half?

Besides, the mandate is just one part of a very large bill. I could see striking down the whole law if the intent of the law was to require people to buy insurance. But that isn't the intent. The mandate is a single provision designed to ameliorate a specific problem. Congress can easily devise other ways of accomplishing the same thing. Is it really the court's role to say that such fixes aren't possible or desirable or even necessary?

Assume for a minute that the mandate is struck down and Congress is unable to make any other changes? Are we left with a "shell of a law" as has been alleged? I don't see why. Many states require the issuance of health insurance, without underwriting and without a mandate. It's not ideal, but it is currently the law of the land in many places. If other local legislatures feel that the absence of a mandate creates problems in their states, they can institute a mandate at the state level; just like Massachusetts.

It seems to me the issue before the court is a fairly narrow one. It should answer that narrow question and leave drafting legislation to the legislature.

 

[ERD50]

Whichever way SCOTUS eventually decides, it's gonna be a historic decision.

In the back of my mind, I've wondered if SCOTUS decides if the mandate is constitutional, then would more folks say "I'm outta here" and FIRE as it seems for many, not finding individual insurance because of pre-existing conditions is the biggest hurdle to FIRE.

But you are talking a very thin slice. The question of constitutional/not was going to be settled one way or the other in a pretty short time, it's not like this was going to sit out there for ten years.

I thought it was interesting that 3 days of hearings is it. Courts sure spend a lot more time on less important cases. But I guess there is no gathering and analysis of evidence, it's all there in the bill, and the Judges look at that outside of the hearing itself. Just still seemed strange. June is the next step?

-ERD50

 

[Major Tom]

I was surprised that many of their comments/ruminations had to do with the detriments and benefits of the law rather than the constitutionality.

Me too. It's quite heartening actually.

 

[Gone4Good]

I thought it was interesting that 3 days of hearings is it. Courts sure spend a lot more time on less important cases. But I guess there is no gathering and analysis of evidence, it's all there in the bill, and the Judges look at that outside of the hearing itself. Just still seemed strange. June is the next step?

Most of what the Court considers is written. Not just the bill itself, but thousands of pages of briefs submitted by interested parties. I don't think you can see access the Court's records without a log-in, but I believe this is the list of briefs filled in one of the lower court cases. As you can see, it is quite extensive.

The Supreme Court also relies on all of the work done by these lower courts, which it has access to as well.

 

[ERD50]

If the mandate is deemed unconstitutional, the correct thing to do is to strike the mandate and let Congress address whatever problems arises if it so desires. ...

Well, that is your opinion - I see it differently.

The court doesn't need to comb through the law to judge the impact, nor should it.

Agreed. But that's why I say strike it all/nothing - to avoid going through it all. It seems to me that they would need to assume that the mandate was written 'in a vacuum' regarding any other clause. But I don't think that is true - weren't certain clauses added to get some states to go along with the deal? So if you take out the 'the deal' you could argue that the clause added to support it should go too. So now you are putting the SC in the position of determining this, and to me, that is akin to making the SC the writer of the law, and that violates the system of the three branches of government.

Congress can easily devise other ways of accomplishing the same thing. Is it really the court's role to say that such fixes aren't possible or desirable or even necessary?

They (Congress) should have done it the first time 'round then if it is so easy. It is the SC role to say if something is Constitutional or not, what is fixable or desirable is up to Congress, no?

Many states require the issuance of health insurance, without underwriting and without a mandate. It's not ideal, but it is currently the law of the land in many places. ...

I

Again, that is for Congress to hash out what the public wants, and to do it within the law. SC should decide if it is Constitutional or not. I don't think the SC should be basing it's decisions on the law of 'many lands', but the law of this land. It's our Constitution we are talking about, not someone else's.

I don't think I can really add anything to that, we probably need to agree to disagree beyond this.

-ERD50

 

[pb4uski]

.....I thought it was interesting that 3 days of hearings is it. Courts sure spend a lot more time on less important cases. But I guess there is no gathering and analysis of evidence, it's all there in the bill, and the Judges look at that outside of the hearing itself. Just still seemed strange. June is the next step?

-ERD50

I'm sure there are literally volumes of written legal arguments that have been made by each side prior to and after oral arguments, as well as the justices staff's doing extensive legal analyses and all is considered in the justices deliberations. I remember reading "The Brethren" by Bob Woodward and Scott Armstrong back in the early 80s - it was a fascinating peek into how the SCOTUS works.

 

[Gone4Good]

Agreed. But that's why I say strike it all/nothing - to avoid going through it all. It seems to me that they would need to assume that the mandate was written 'in a vacuum' regarding any other clause. But I don't think that is true - weren't certain clauses added to get some states to go along with the deal?

Are those clauses unconstitutional? If not, what business does the Supreme Court have messing with them?

 

[ERD50]

I was surprised that many of their comments/ruminations had to do with the detriments and benefits of the law rather than the constitutionality. ...

Me too. It's quite heartening actually.

Why so? To me, it seems like a breakdown of the separation of powers. I don't see that as a good thing. I would think an impartial judge would strive to keep their opinions of the benefits/detriments of the law separate from their judgement of the Constitutionality of it.

That would be a little like a plumber suing a homeowner for non-payment of a bill, and hearing the Judge express his hatred of plumbers and how a plumber really screwed up a recent repair at his home and tried to rip him off. Would you feel you were going to get a fair trial if you were the plumber?

-ERD50

 

[pb4uski]

I'm guessing that somewhere the Administration has made the case that the mandate is critical to the act, so if the mandate is unconstitutional then SCOTUS is likely to reject the entire law and push it back into Congress' arms.

Not sure it matters much though because either way, Congress will need to do something I think (at least if their argument that the individual mandate is critical is correct).

The other reason I could see for rejecting the entire law if the individual mandate is unconstitutional is that it passed so narrowly to begin with it is unlikely that it would have passed without the individual mandate. To allow the rest of the law to remain would encourage Congress to add constitutionally questionable features to legislation to gain the incremental votes needed for passage and would create an entirely new game in DC.

 

[MichaelB]

The final hearing was regarding "severability". That is, if the mandate was ruled unconstitutional, could the remaining provisions be implemented or not. It has nothing to do with how good they are, just "can they be implemented without the mandate".

Edit: KFF has a very good brief on the case. It is short, easy to ready, here

 

[Texas Proud]

But you are talking a very thin slice. The question of constitutional/not was going to be settled one way or the other in a pretty short time, it's not like this was going to sit out there for ten years.

I thought it was interesting that 3 days of hearings is it. Courts sure spend a lot more time on less important cases. But I guess there is no gathering and analysis of evidence, it's all there in the bill, and the Judges look at that outside of the hearing itself. Just still seemed strange. June is the next step?

-ERD50

The SC is different than other courts... most of the legal work is behind the scene... 3 days of testimony is very rare (if ever)

Edit to add... I will say more in another post, but there were a number of items they are going to make decison on, so that is why it went 3 days...

 

[Texas Proud]

The final hearing was regarding "severability". That is, if the mandate was ruled unconstitutional, could the remaining provisions be implemented or not. It has nothing to do with how good they are, just "can they be implemented without the mandate".

Edit: KFF has a very good brief on the case. It is short, easy to ready, here

I will read the link...

But this is correct... there is a decision tree that they have to go through from what I can tell....

First, should the court even hear the case.... I think most people will agree that this will be decided as a yes.... but, the history was that you could not sue on a tax that you had not paid... so it is an important distinction....


Second, if the mandate constitutional (and maybe a few other items, hope to find out with the link)....

Third, only if #2 is a no, then should the whole law be thrown out or just the one part...


From what I remember, they left out some important language that would make #3 where they could throw out just the one part.... but since I have not heard anything relating to this recently, they must have thought there was enough to separate the rest...

 

[Major Tom]

Why so? To me, it seems like a breakdown of the separation of powers. I don't see that as a good thing. I would think an impartial judge would strive to keep their opinions of the benefits/detriments of the law separate from their judgement of the Constitutionality of it.
-ERD50

My thinking was that law only exists to serve the people and so when considering any proposed law, it is also important to consider in what way if will affect the people it is intended to serve.

 

[ERD50]

Are those clauses unconstitutional? If not, what business does the Supreme Court have messing with them?

Well, I thought I covered that, but let me try an analogy:

You buy a used, unique, old car from a guy, agree to a price and exchange check for title. Done deal.

Then he mentions that the car takes a unique oil filter that is kind of tough to find, but he has a case of them he will sell you for $200. So fine, you don't know if that's a good price, but you decide to buy the filters too.

Then, you discover an undisclosed problem with the car, before you drive off. The guy agrees to return your check for the title, and null the transaction. But he won't give you your $200 back for the filters (which you only wanted if you had the car). You are saying this is fine, they are separate transactions, nulling one has no effect on the other, but clearly they were tied together.

Some of the clauses were dealt with this way too. One Senetor will vote for this if you vote for that. Now, take one away, and...

I don't think the SC can determine what deals were made (and I don't think it is their job, or should be). So throw it out or keep it, all or nothing, and let Congress start over.

The final hearing was regarding "severability". That is, if the mandate was ruled unconstitutional, could the remaining provisions be implemented or not. It has nothing to do with how good they are, just "can they be implemented without the mandate".

Edit: KFF has a very good brief on the case. It is short, easy to ready, here

Thanks, I'll check that out.

Can someone comment on how a 'severability clause' works. IIRC, there was discussion that Congress could have specifically added a severability clause to the mandate, and then the SC could rule on it separately? I suppose that's a bit of a red flag though, like marking a deduction to the IRS, 'oh, drop this if you want, it's kinda shakey!'

-ERD50

 

[pb4uski]

My thinking was that law only exists to serve the people and so when considering any proposed law, it is also important to consider in what way if will affect the people it is intended to serve.

I couldn't disagree more. The purview of the SC is whether the law is constitutional or not. Whether it is "good" or "bad" should be irrelevant to whether or not it is constitutional.

 

[Texas Proud]

The final hearing was regarding "severability". That is, if the mandate was ruled unconstitutional, could the remaining provisions be implemented or not. It has nothing to do with how good they are, just "can they be implemented without the mandate".

Edit: KFF has a very good brief on the case. It is short, easy to ready, here

Very interesting read... not quite finished, but thought this was interesting...

​

"Because none of the parties is taking the position that only the individual mandate should be severed, allowing the remainder of the law to survive, as decided by the 11th Circuit Court of Appeals, the Supreme Court has appointed outside counsel to argue that position. "​

 

[Texas Proud]

Well, I thought I covered that, but let me try an analogy:

You buy a used, unique, old car from a guy, agree to a price and exchange check for title. Done deal.

Then he mentions that the car takes a unique oil filter that is kind of tough to find, but he has a case of them he will sell you for $200. So fine, you don't know if that's a good price, but you decide to buy the filters too.

Then, you discover an undisclosed problem with the car, before you drive off. The guy agrees to return your check for the title, and null the transaction. But he won't give you your $200 back for the filters (which you only wanted if you had the car). You are saying this is fine, they are separate transactions, nulling one has no effect on the other, but clearly they were tied together.

Some of the clauses were dealt with this way too. One Senetor will vote for this if you vote for that. Now, take one away, and...

I don't think the SC can determine what deals were made (and I don't think it is their job, or should be). So throw it out or keep it, all or nothing, and let Congress start over.




-ERD50

But the SC throws out parts of a lot of laws... they include the severability clause in them...

To me, the thinking is that if Congress does not want the rest of the law to remain in effect, they can get rid of it... or fix the problem that was created by the SC decision...

I agree with some of the Justices that it is not their job to be reading and picking out what is and is not connected as they really do not know... so I think throwing it all out or not should be based on what was in the law... if they did put in severability clauses, the rest should stand.... if they did not, well, it should all be thrown out if they decide the mandate should be...

 

[M Paquette]

How many would-be entrepreneurs choose not to pursue their dream and stay at teh day job just to keep the health benefits? That is one major reason I have not seriously considered any such ventures.

Me. I passed on a couple of startup opportunities, what with the wife and kids needing coverage. Working for options or untraded shares, with little or no salary, was something that I could do, funding daily expenses from savings, but when we threw in the cost of individual medical coverage sufficient to replace my employer's plan, the budget plan failed miserably.

Even now, in early retirement with no retiree medical or pension, medical insurance is by far the biggest expense in our budget. Should ACA be thrown out, I expect costs to rise significantly, as we'll have to buy new insurance for DD (21, and a college student), and may find ourselves dealing with loss of coverage in some form, or in a 'phased out' pool. (That's the deal where some pool members are invited into a new plan, and the ones remaining find their rates rising dramatically.)

I'll note that the 'repeal and replace' folks have put some effort into the repeal effort, not so much on the replace part.

 

[Gone4Good]

Some of the clauses were dealt with this way too. One Senetor will vote for this if you vote for that. Now, take one away, and...


I don't think the SC can determine what deals were made (and I don't think it is their job, or should be). So throw it out or keep it, all or nothing, and let Congress start over.

By this logic, no law can ever stand if any part of it is found unconstitutional. Here is what Justice Scalia had to say in arguments:

JUSTICE SCALIA: When we strike that [the corn husker kickback] down, it's clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the corn husker kickback is bad. That can't be right.

Of course that can't be right. Surely there is a threshold test as to whether a provision is important enough to bring the entire law down. That is why it is relevant that health care exchanges exist in places like Utah without a mandate. Why it is relevant that guaranteed issue exists in places like New Jersey without a mandate. And why it is relevant that states can still issue their own mandate if they feel that is needed.

By bringing down the entire law, the Supreme Court is essentially saying that all of these things that exsit elsewhere without a mandate can't possibly work, or be made to work, in ACA without a mandate. I don't see how anyone can reach that conclusion.

 

[Major Tom]

I couldn't disagree more. The purview of the SC is whether the law is constitutional or not. Whether it is "good" or "bad" should be irrelevant to whether or not it is constitutional.

You're right. I just displayed my ignorance in a rather public fashion.

 

[Chuckanut]

If the health care law is tossed out, I think the people who don't want any type of national health care system will end up being very disappointed. The alternative may be a single payer system, paid for by some type of universal tax (perhaps an extension of Medicare to everybody??) and even more Federal control over the medical system than we have now. This is just a gut feeling, I have no evidence for it. But, the current system is too faulty to continue. I personally know of several people who ended up in the emergency room this year (at double the expense of the non-emergency system) simply because they could not pay the medical fees and did not have insurance (they all work full time but are not offered insurance.) This is certainly not the way to get a handle on medical expenses.

If other countries can come up with something so can we. There are plenty of examples to study, compare and, perhaps, implement in some form.

 

[Gone4Good]

I'll note that the 'repeal and replace' folks have put some effort into the repeal effort, not so much on the replace part.

That would be a good topic for another conversation. If ACA falls, what are the details of the comprehensive alternative?

 

[Old Microbiologist]

My prediction is the SC will rule that the AHCA is constitutional and will stand as it is written.

 

[Chuckanut]

I couldn't disagree more. The purview of the SC is whether the law is constitutional or not. Whether it is "good" or "bad" should be irrelevant to whether or not it is constitutional.

Agreed. While I support some type of system that ensures a minimum level of health care for all citizens, I do not think the SC should dictate it if it does not past the Constitution test.

 

[Chuckanut]

Not just "I'm outta here" but also "I'm changing jobs". Than could have a very positive effect on business and employment in the US.

Agreed. I think we pay a high price for tying health care to out jobs. Locking people into a job is not the best way to make use of our nation's human skills.