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This SCOTUS Decision Most Critical of Out Lifetimes

108 posts in this topic

This case before SCOTUS will determine whether we even have a remote chance to regain a limited Constitutional Republic or not. If the Affordable Health Care Act [Orwellian speak] is declared unconstitutional, it will still take a generation to regain this goal.

The legislation passed by a 219-212 vote in the House and a 60-39 vote in the
Senate
, with just a single Republican in favor of it. The bill cleared
Congress
on March 21, 2010, and Mr. Obama signed it into law two days later in a ceremony at the
White House
.
Take
Mr. Payne
, the Fort Worth-based business owner who runs a chain of plants that produce wooden packaging and crating parts.
Since the 1990s,
Mr. Grady
has offered full-coverage policies to about 140 administrative staffers, but not to 300 or so factory workers, mainly young and male, who he said aren’t willing to help foot the bill. Now that he will be required under the law to either provide coverage to all of his employees or pay a $2,000 fine for each, he said, he worries that he won’t be able to afford the plans or persuade workers to pay their share.
Able to recite cost estimates off the top of his head,
Mr. Grady
has spent a lot of time poring over the figures. To cover factory workers, he said, he would have to double what he spends on insurance to $1.5 million a year, which would eat up all his profits.

http://www.washingtontimes.com/news/2012/mar/19/at-two-year-mark-health-laws-legacy-is-confusion/

Any analysis or guesses as to how this SCOTUS decision will be decided and by what vote?

Adam

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This case before SCOTUS will determine whether we even have a remote chance to regain a limited Constitutional Republic or not. If the Affordable Health Care Act [Orwellian speak] is declared unconstitutional, it will still take a generation to regain this goal.

The legislation passed by a 219-212 vote in the House and a 60-39 vote in the
Senate
, with just a single Republican in favor of it. The bill cleared
Congress
on March 21, 2010, and Mr. Obama signed it into law two days later in a ceremony at the
White House
.
Take
Mr. Payne
, the Fort Worth-based business owner who runs a chain of plants that produce wooden packaging and crating parts.
Since the 1990s,
Mr. Grady
has offered full-coverage policies to about 140 administrative staffers, but not to 300 or so factory workers, mainly young and male, who he said aren’t willing to help foot the bill. Now that he will be required under the law to either provide coverage to all of his employees or pay a $2,000 fine for each, he said, he worries that he won’t be able to afford the plans or persuade workers to pay their share.
Able to recite cost estimates off the top of his head,
Mr. Grady
has spent a lot of time poring over the figures. To cover factory workers, he said, he would have to double what he spends on insurance to $1.5 million a year, which would eat up all his profits.

http://www.washingto...y-is-confusion/

Any analysis or guesses as to how this SCOTUS decision will be decided and by what vote?

Adam

A wipe out of individual mandate only, leaving enough for the statists to work with.

--Brant

Obamacare will die out in the country's inflationary bankruptcy--that is, the quality and availability of medical care will nose-dive, choked to death by gross unaffordability

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Were we dealing with a court system that was even remotely rational, I would see it as Brant does, i.e., SCOTUS would lop off the single most egregious constitutional faux pas (the individual mandate), but then the justices would leave the rest of the law intact, refusing to act as an activist court by fully overriding the other two branches of government. This would probably be the full extent of cooperation that the Roberts/Alito/Scalia/Thomas/ axis could expect from the Breyer/Ginzberg/Sotomayor/Kagan axis if they were to try to make a rational decision.

But of course they won't do that.

Remember, you're dealing with nothing but lawyers here.

What SCOTUS will do is find at least three (count'em: 3 !!!) obscure passages in the statute that in and of themselves are fairly innocuous, and blow them all out of proportion. They will then create out of whole cloth a "constitutional test" for each of these items, that consists of deliberately contradicting the explicit wording of both the statute and the Constitution. Compliance with these "tests" will become synonymous with compliance under the statute, and will define the only safety from the self-defined statutory fines, as well as the only protection from deprivation of 1st, 2nd, 4th, 5th, 6th & 8th amendment rights under this statute, the NDAA, and the Protected Areas Act.

Further, it will not even be a close decision, rather 7-2 in favor of the above. Of course at the base of it there will be the Breyer/Ginzberg/Sotomayor/Kagan decision, which will be joined by Kennedy (of course) and surprisingly, Thomas. Roberts will write a different but concurring decision, bringing it to seven (7). The two (2) dissenting opinions will be written by Scalia and Alito, and will be, at best, dry, technical, and disappointing, nothing on which to base a future reversal of decision.

Anybody else need some cheering up ?

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Steve,

The Supreme Court frequently invents phony "constitutional tests."

But you lost me when you predicted that Clarence Thomas would join your nightmare decision.

It would not, in fact, be judicial activism for the Supreme Court to strike down the entire law. Those who wrote ObamaReidPelosiCare (PPACA) were so reckless, they didn't bother to include a "severability" clause. If the individual mandate is unconstitutional, it's not severable from the rest, so the whole monstrosity must then go.

I've heard all kinds of conspiratorial theories about Roberts and Alito upholding the law in order to curry favor with Obama, etc. etc. The Supreme Court is, historically, capable of nearly anything, but I still discount these.

My guess is 5-4 against the individual mandate only. Logic will continue not to be the Supreme Court's strong suit.

Robert Campbell

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A wipe out of individual mandate only, leaving enough for the statists to work with.

Brant,

Also my guess, but other parts of ObamaReidPeiosiCare will quickly prove unsustainable without the mandate.

Robert Campbell

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Here is a revealation about the Affordable Health Care Act [Orwellian Speak] that I did not know.

I was under the impression that, similar to Romney Care in Massachusetts, the "mandate," "fine" and/or imprisonment component of the Affordable Health Care Act [Orwellian Speak] was necessary and critical to the alleged cost control argument and the "free rider" argument.

Imagine my surprise to discover that it is not.

wsj_print.gif

updated March 20, 2012, 10:26 a.m. ET

ObamaCare's Flawed Economic Foundations

The insurance mandate has almost nothing to do with remedying costs imposed on the system by those without coverage.

By DOUGLAS HOLTZ-EAKIN AND VERNON L. SMITH

ObamaCare will be argued next week in the Supreme Court. While the justices will consider the intricacies of constitutional law, at their heart the arguments in favor of the legislation have to do with the economics of health care.

Consider the individual mandate to purchase health insurance. The Obama administration defends the mandate on the ground that a person's decision to not buy health insurance affects commerce by materially increasing the costs of others' health insurance. The government adds that health care is unique and therefore can be regulated constitutionally in ways other markets cannot.

In reality, the mandate has almost nothing to do with cost-shifting. The targeted population—the young, healthy and not poor who choose to forgo coverage—has a minimal role in the $43 billion of uncompensated health-care costs. In 2008, for example (the latest figures available), the Department of Health and Human Service's Medical Expenditure Panel Survey showed that the uncompensated care of the mandate's targeted population was no more than $12.8 billion—a tiny one-half of 1% of the nation's $2.4 trillion in overall health-care costs. The insurance mandate cannot reasonably be justified on the ground that it remedies costs imposed on the system by the voluntarily uninsured.

The government's other defense is that the health-care market does not exhibit textbook competition. No market does. The economic features relied upon by the government—externalities, imperfect information, geographically distinct markets, etc.—are characteristic of many markets.

The presence of externalities and other market imperfections does not justify a departure from the normal rules of the constitutional road. Health care is typically consumed locally, and health-insurance markets themselves primarily operate within the states. The administration's attempt to fashion a singular, universal solution is not necessary to deal with the variegated issues arising in these markets. States have taken the lead in past reform efforts. They should be an integral part of improving the functioning of health-care and health-insurance markets.

Consider also the health law's expansion of Medicaid. As Prof. Richard Epstein argued on these pages ("ObamaCare's Phony Medicaid 'Deal,'" May 10, 2010), an expenditure of federal funds is unconstitutional when it coerces states rather than encouraging them to participate in a federal policy. And coercion is the essence of ObamaCare's Medicaid provisions.

If the Supreme Court understands these facts, it will be forced to invalidate the entire law. In particular, the individual mandate cannot be "severed" from the remainder of the health law in any meaningful economic sense. Numerous provisions of the law impose significant costs, such as fees, taxes and benefit mandates on health-care market participants, primarily health-insurance companies. Congress would not have imposed such costs without the countervailing revenues raised by the individual mandate—not just as a matter of politics, but because such uncompensated costs would be passed on to patients, undermining the central goal of the law to make health care more affordable.

Without the individual mandate, ObamaCare imposes total net costs of $360 billion on health-insurance companies from 2012 through 2021. With the mandate, the law would provide a net $6 billion benefit—i.e., revenues in excess of costs—over that same time period. In other words, the benefits of the individual mandate to health-insurance companies, along with their additional revenues provided by ObamaCare's Medicaid expansion, are projected to balance, nearly perfectly, the costs that the law's various regulatory mandates impose on insurers.

The individual mandate and Medicaid expansions appear to many to be unconstitutional. They are certainly bad economic policy. When they go, the entire law must fall. The administration built an intricate, balanced policy on a flawed economic foundation. It is up to the Supreme Court to pull it down.

Mr. Holtz-Eakin, a former director of the Congressional Budget Office, is president of the American Action forum. Mr. Smith is a professor of economics at Chapman University and the 2002 Nobel Laureate in Economics. The American Action Forum has filed three amicus briefs for NFIB v. Sebelius and Florida, et al., v. Sebelius that have been co-signed by hundreds of economists and health policy experts.

A version of this article appeared Mar. 20, 2012, on page A15 in some U.S. editions of The Wall Street Journal, with the headline: ObamaCare's Flawed Economic Foundations.

Copyright 2012 Dow Jones & Company, Inc. All Rights Reserved

This copy is for your personal, non-commercial use only. Distribution and use of this material are governed by our <a href="http://online.wsj.com/public/page/subscriber_agreement.html">Subscriber Agreement and by copyright law. For non-personal use or to order multiple copies, please contact Dow Jones Reprints at 1-800-843-0008 or visit

www.djreprints.com

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Now you've got me scared the Court won't have the guts to invalidate anything.

--Brant

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Now you've got me scared the Court won't have the guts to invalidate anything.

--Brant

Brant:

I have my doubts, but I expect Kennedy to waiver until the last moment.

Adam

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Excellent Wall Street Journal article on the upcoming SCOTUS Affordable Health Care Case:

"The Constitution subordinates efficiency to guarantee liberty." <<This was the definitive line in the article.

On Monday, the Supreme Court will begin an extraordinary three-day hearing on the constitutionality of ObamaCare. At stake are the Constitution's structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities. Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.

ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty. The ultimate purpose of this "individual mandate" is to force young and healthy middle-class workers to subsidize those who need more coverage.

Congress could have achieved this wealth transfer in perfectly constitutional ways. It could simply have imposed new taxes to pay for a national health system. But that would have come with a huge political price tag that neither Congress nor the president was prepared to pay.

Instead, Congress adopted the individual mandate, invoking its power to regulate interstate commerce. The uninsured, it reasoned, still use health services (for which some do not pay) and therefore have an impact on commerce, which Congress can regulate.

Congress's reliance on the Commerce Clause to support the individual mandate was politically expedient but constitutionally deficient. Congress's power to regulate interstate commerce is broad but not limitless

<a href="http://online.wsj.com/article/SB10001424052702304636404577291883293776326.html?mod=djemEditorialPage_h">http://online.wsj.com/article/SB10001424052702304636404577291883293776326.html?mod=djemEditorialPage_h

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Excellent Wall Street Journal article on the upcoming SCOTUS Affordable Health Care Case:

"The Constitution subordinates efficiency to guarantee liberty." <<This was the definitive line in the article.

On Monday, the Supreme Court will begin an extraordinary three-day hearing on the constitutionality of ObamaCare. At stake are the Constitution's structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities. Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.

ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty. The ultimate purpose of this "individual mandate" is to force young and healthy middle-class workers to subsidize those who need more coverage.

Congress could have achieved this wealth transfer in perfectly constitutional ways. It could simply have imposed new taxes to pay for a national health system. But that would have come with a huge political price tag that neither Congress nor the president was prepared to pay.

Instead, Congress adopted the individual mandate, invoking its power to regulate interstate commerce. The uninsured, it reasoned, still use health services (for which some do not pay) and therefore have an impact on commerce, which Congress can regulate.

Congress's reliance on the Commerce Clause to support the individual mandate was politically expedient but constitutionally deficient. Congress's power to regulate interstate commerce is broad but not limitless

<a href="http://online.wsj.com/article/SB10001424052702304636404577291883293776326.html?mod=djemEditorialPage_h">http://online.wsj.com/article/SB10001424052702304636404577291883293776326.html?mod=djemEditorialPage_h

The perverse interpretation of the Commerce Clause is the death of our liberty. In principle, there is virtually no aspect of our lives that Congress cannot regulate.

Ba'al Chatzaf

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AP article suggests six (6) possible outcomes for SCOTUS:

WASHINGTON (AP) -- The Supreme Court has several options in ruling on President Barack Obama's health care overhaul, from upholding the law to striking it down in its entirety. The court also could avoid deciding the law's constitutionality at all, if it finds the lawsuits challenging the law are premature.

Here is a look at six potential outcomes, from the simplest to the most complicated possible rulings:

http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_HEALTH_CARE_POSSIBLE_OUTCOMES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT

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AP article suggests six (6) possible outcomes for SCOTUS:

WASHINGTON (AP) -- The Supreme Court has several options in ruling on President Barack Obama's health care overhaul, from upholding the law to striking it down in its entirety. The court also could avoid deciding the law's constitutionality at all, if it finds the lawsuits challenging the law are premature.

Here is a look at six potential outcomes, from the simplest to the most complicated possible rulings:

http://hosted.ap.org...EMPLATE=DEFAULT

I bet they will punt and wait until people have to pay into the plan under the Mandate.

Keep in mind that the Supreme Court has been a party to the destruction of our liberty. Think of the Wichardt decision.

Ba'al Chatzaf

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AP article suggests six (6) possible outcomes for SCOTUS:

WASHINGTON (AP) -- The Supreme Court has several options in ruling on President Barack Obama's health care overhaul, from upholding the law to striking it down in its entirety. The court also could avoid deciding the law's constitutionality at all, if it finds the lawsuits challenging the law are premature.

Here is a look at six potential outcomes, from the simplest to the most complicated possible rulings:

http://hosted.ap.org...EMPLATE=DEFAULT

I bet they will punt and wait until people have to pay into the plan under the Mandate.

Keep in mind that the Supreme Court has been a party to the destruction of our liberty. Think of the Wichardt decision.

Ba'al Chatzaf

Excellent website devoted to this case - The Filburn Foundation...

The Wickard v. Filburn case was one of the most important and tragic moments in American history. It changed the role of the Federal government in American life. Most Americans had never even heard of Wickard v. Filburn including the community in which this historic case originated.

Basically, the U.S. Supreme Court found the Commerce Clause can apply to local, non-commercial activity which might affect interstate commerce and has the authority to regulate private economic activity.

We invite you to explore this website and learn about Roscoe Filburn and his fight which took him all the way to the U.S. Supreme Court back in 1942.

http://thefilburnfoundation.com/index.html

Wickard v. Filburn

Location: Roscoe Filburn's Farm

Facts of the Case

Filburn was a small farmer in Ohio. He was given a wheat acreage allotment of 11.1 acres under a Department of Agriculture directive which authorized the government to set production quotas for wheat. Filburn harvested nearly 12 acres of wheat above his allotment. He claimed that he wanted the wheat for use on his farm, including feed for his poultry and livestock. Fiburn was penalized. He argued that the excess wheat was unrelated to commerce since he grew it for his own use.

Question

Is the amendment subjecting Filburn to acreage restrictions in violation of the Constitution because Congress has no power to regulate activities local in nature?

Conclusion

Decision: 8 votes for Wickard, 0 vote(s) against

Legal provision: US Const. Art 1, Section 8, Clause 3; Agricultural Adjustment Act

According to Filburn, the act regulated production and consumption, which are local in character. The rule laid down by Justice Jackson is that even if an activity is local and not regarded as commerce, "it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"

http://www.oyez.org/cases/1940-1949/1942/1942_59/

Awful decision. http://supreme.justia.com/cases/federal/us/317/111/case.html <<<<Text of Decision

http://www.lawnix.com/cases/wickard-filburn.html

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It begins today.

The most critical case to come before SCOTUS in the last one hundred (100) years.

Here is an excellent twenty-eight page Amicus Curiae brief, submitted by the National Restaurant Association, in support of Petitioners, Severability:

QUESTION PRESENTED

Whether the Patient Protection and Affordable

Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as

amended by the Health Care and Education

Reconciliation Act of 2010, Pub L. No. 111-152, 124

Stat. 109 (2010) (collectively the “Act”), must be

invalidated in its entirety because it is not severable

from the Act’s individual mandate, 26 U.S.C. § 5000A,

that exceeds Congress’s limited and enumerated

powers under the Constitution.

http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-393_petitioneramcunatlrestassn.authcheckdam.pdf

Adam

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This is a helpful guide to the three (3) days of argument before SCOTUS:

http://www.washingto...jnTS_story.html

Next week, the Supreme Court takes up various challenges to the sweeping health-care law that was adopted in 2010. Here is a guide to the arguments the justices will be weighing each day:

MONDAY: Is it premature for the Supreme Court to rule on the challenge to the law’s insurance requirement?

Beginning in 2014, the law will require virtually all Americans to obtain health insurance or pay a penalty beginning in 2014. On Monday the Court will consider whether this penalty is equivalent to a tax. If so, under another law, known as the Anti-Injunction Act, the penalty cannot be challenged until it is actually levied on someone--and the earliest that could happen is 2015. Although the Obama administration maintains that the penalty does amount to a tax, for technical legal reasons it agrees with the plaintiffs that the Anti-Injunction Act does not apply in this case. As a result, the Court has had to appoint an “amicus curiae” attorney to make the case that the Anti-Injunction Act bars the court from ruling on the constitutionality of the insurance requirement at this time. Arguments begin at 10 a.m. and are scheduled for 90 minutes:

Amicus to the Court : Robert A. Long, allotted 40 minutes

Representing the Administration: Solicitor General Donald B. Verrilli Jr., allotted 30 minutes

Representing the Law’s Challengers: Gregory G. Katsas, allotted 20 minutes

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I never find jurisdictional issues "boring!"

Day One of Health Arguments Is ‘Boring Jurisdictional Stuff’; Which Justices Are in Play

Former Solicitor General Paul Clement, who represents states challenging the law, said in remarks earlier this month that he feels sorry for
people who camp out
to see today’s arguments,
Bloomberg News
reported at the time. “I think of that as a kind of practical joke that the court is playing on the public,” Clement said. “Some people are going to stand out all [sunday] night trying to get a seat for the health care argument, and they’re going to hear all this discussion about this Anti-Injunction Act—about the most boring jurisdictional stuff one can imagine.

http://www.abajournal.com/news/article/day_one_of_health_arguments_is_boring_jurisdictional_stuff_which_justices_a/?utm_source=maestro&utm_medium=email&utm_campaign=daily_email

Adam

"If you have neither the facts nor the law, pound the table"

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Another superior Amicus Curiae brief by the Institute for Justice [http://www.ij.org/], which raises a key point about a forced contract being a Constitutional oxymoron. Concluding that the mandate would violate three hundred years of contract law by forcing the individual to sign a "voluntary contract" which cannot be done. Coercive contracts are null and void. Excellent arguments.

QUESTION PRESENTED

Whether Congress has the power under Article I

of the Constitution to impose the individual mandate

of the Patient Protection and Affordable Care Act.

http://www.ij.org/images/pdf_folder/amicus_briefs/obamacareamicus.pdf

CONCLUSION

If the individual mandate of PPACA is upheld, the power to regulate commerce will include the

power to compel it. This massive new federal power would soon overtake the entirety of the states’ residual

police power, including the entirety of contract law, enabling the federal government to eviscerate

hundreds of years of basic understandings of the voluntary essence of legally binding contracts.

Equally important, from the perspective of individual liberty, a power to compel contractual relations

would have no logical stopping point. It would presumably include, for example, the power to compel

individuals to buy any good or service – not just health insurance – so long as Congress could rationally

conclude the market for that product would benefit from forced purchasing. It would also presumably

include a power to compel individuals to work for specific employers or in specific occupations, so long

as Congress could rationally conclude that those industries or occupations would benefit from such forced

contractual relationships. When combined with the Court’s highly deferential standard of review for exercises

of the commerce power, extending that power to include the the awesome power to compel would create

the very Leviathan government the Founders spilled their blood to resist.

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MONDAY: Is it premature for the Supreme Court to rule on the challenge to the law’s insurance requirement?

No one has been yet forced to buy insurance under Plan Obama. The Court may rule this provision of the law not subject to adjudication until someone is forced to pay and undertakes a suit to prevent the levy from being collected. That is just about what his gutless court may do.

Ba'al Chatzaf

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MONDAY: Is it premature for the Supreme Court to rule on the challenge to the law’s insurance requirement?

No one has been yet forced to buy insurance under Plan Obama. The Court may rule this provision of the law not subject to adjudication until someone is forced to pay and undertakes a suit to prevent the levy from being collected. That is just about what his gutless court may do.

Ba'al Chatzaf

Bob:

That is why today's argument is not "boring," but critical to defining whether the "penalty," imposed in the "Affordable Care Act," is a tax, or, a "fine."

The slimy O'biwan administration is arguing that it is not a tax today, and that it is a tax [just like social security] tomorrow. Very similar to the way the Roosevelt administration lied to SCOTUS in the Social Security case in the 1930's.

The Supreme Court, in the case
Department of Health and Human Services v. Florida
, in which the Court may decide the constitutionality of the
Patient Protection and Affordable Care Act
, may consider the applicability of the Tax Anti-Injunction Act. The Court may consider whether the failure to comply with the "individual mandate" provided for in that law equates to a tax penalty. If it does, the Court's consideration of the "individual mandate" would fall under the Tax Anti-Injunction Act and could preclude the federal courts from hearing the case until after the law goes into effect and after a prospective plaintiff has paid a tax penalty to the Internal Revenue Service in 2015.

When they considered this issue, the Circuit Courts handed down contradictory decisions. The Fourth Circuit ruled that the individual mandate imposes a tax penalty and therefore the Tax Anti-Injunction Act prevented the court from considering constitutional issues. Two other Circuit Courts decided that the Tax Anti-Injunction Act does not preclude the federal courts from deciding the constitutionality of the individual mandate

A penalty vs. tax.

Article 1 section 9 sub section 4 which states "No Tax or Duty shall be laid on Articles exported from any State." So, it can not be a tax. O'bama lied to Stephanopolous in the now famous interview where O'bama makes the idiotic comparison of the mandate to purchasing auto insurance.

Of course the slimy bastard was either too stupid to realize that a person who did not own a car would not "have to purchase auto insurance, or, too deceptive to be, be honest with the citizens. Take your pick.

Adam

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This contains the transcript and the audio of the argument today...one and one half hours long.

http://www.c-span.org/uploadedFiles/Content/The_Courts/11-398-Monday.pdf <<<<better transcript

http://www.c-span.org/Events/Audio-Released-of-Day-One-Health-Care-Oral-Argument/10737429097-4/ better audio from the Court's site.

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Justice Ginsburg

Mr. Long, there's another argument that has been made that I would like you to address, and that is all this talk about tax penalties is all beside the point because this suit is not challenging the penalty. This is a suit that is challenging the must-buy provision, and the argument is made that, if, indeed, "must-buy" is constitutional, than these complainants will not resist the penalty. So what they're seeking is a determination that that "must-buy" requirement, stated separately from penalty, that "must-buy" is unconstitutional, and, if that's so, that's the end of the case; if it's not so, they are not resisting the penalty.

Mr. Long

Well, I think that argument doesn't work for two reasons. I mean, first, if you look at the Plaintiff's own complaint, they clearly challenge both the minimum coverage requirement and the penalty.

http://www.nytimes.com/interactive/2012/03/27/us/27scotus.html?nl=todaysheadlines&emc=edit_th_20120327

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Scalia obliterates the Solicitor General's specious argument on the alleged cost of "young healthy individuals" not purchasing medical[not health] insurance policies:

The transcript of the exchange is below:

GENERAL VERRILLI: To live in the modern world, everybody needs a telephone. And the — the same thing with respect to the — you know, the dairy price supports that — that the Court upheld in Wrightwood Dairy and Rock Royal. You can look at those as disadvantageous contracts, as forced transfers, that — you know, I suppose it’s theoretically true that you could raise your kids without milk, but the reality is you’ve got to go to the store and buy milk. And the commerce power — as a result of the exercise of the commerce power, you’re subsidizing somebody else –

JUSTICE KAGAN: And this is especially true, isn’t it, General –

GENERAL VERRILLI: — because that’s the judgment Congress has made.

JUSTICE KAGAN: — Verrilli, because in this context, the subsidizers eventually become the subsidized?

GENERAL VERRILLI: Well, that was the point I was trying to make, Justice Kagan, that you’re young and healthy one day, but you don’t stay that way. And the — the system works over time. And so I just don’t think it’s a fair characterization of it. And it does get back to, I think — a problem I think is important to understand –

JUSTICE SCALIA: We’re not stupid. They’re going to buy insurance later. They’re young and — and need the money now.

GENERAL VERRILLI: But that’s –

JUSTICE SCALIA: When — when they think they have a substantial risk of incurring high medical bills, they’ll buy insurance, like the rest of us. But –

GENERAL VERRILLI: That’s — that’s –

JUSTICE SCALIA: — I don’t know why you think that they’re never going to buy it.

GENERAL VERRILLI: That’s the problem, Justice Scalia. That’s — and that’s exactly the experience that the States had that made the imposition of guaranteed-issue and community rating not only be ineffectual but be highly counterproductive. Rates, for example, in New Jersey doubled or tripled, went from 180,000 people covered in this market down to 80,000 people covered in this market. In Kentucky, virtually every insurer left the market. And the reason for that is because when people have that guarantee of — that they can get insurance, they’re going to make that calculation that they won’t get it until they’re sick and they need it, and so the pool of people in the insurance market gets smaller and smaller. The rates you have to charge to cover them get higher and higher. It helps fewer and fewer — insurance covers fewer and fewer people until the system ends. This is not a situation in which you’re conscripting — you’re forcing insurance companies to cover very large numbers of unhealthy people –

JUSTICE SCALIA: You could solve that problem by simply not requiring the insurance company to sell it to somebody who has a — a condition that is going to require medical treatment, or at least not — not require them to sell it to him at — at a rate that he sells it to healthy people. But you don’t want to do that.

Read more: http://dailycaller.c.../#ixzz1qMYRyCDB

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There may be hope yet.

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There may be hope yet.

Yes indeed. The next key is tomorrow and the severability issue.

As of now, it looks like the Court will agree overwhelmingly to "hear the case now," probably 6 to 3, or 7 to 2.

The mandate looks like it is dead, possibly 6 to 3.

Tomorrow's arguments will decide whether to kill the entire nightmare or just the key pieces of it. If the latter, we still have a virulent legislative beast that has to be finally killed before it destroys the private insurance market.

Adam

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Remember the relevant proverbs.

The reporter from Mother Jones pointed out that Verrilli was so lame today that the sympathetic justices had to make his argument for him.

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