http://globaleconomicanalysis.blogspot.com/2012/03/train-wreck-for-obamas-healthcare.html
The Hill reports Rough day for Obama health law: Kennedy among mandate skeptics
Jeffrey Toobin, a lawyer and legal analyst who writes about legal topics for The New Yorker called Tuesday a “train wreck for the Obama administration.”
“This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong,” Toobin said Tuesday on CNN. “I think this law is in grave, grave trouble.”
Supporters of the law had seen Chief Justice John Roberts and Justice Antonin Scalia as possible supporters of the mandate in addition to Kennedy, but the two offered aggressive questions during the two hours of arguments.The debate hinged largely on whether the mandate requires people to enter the market for health insurance or regulates the market for healthcare. Verrilli argued that everyone either uses healthcare or is at risk of unexpectedly ending up in the market for healthcare services. The mandate simply ensures that those services are paid for, he said.
Scalia wasn’t buying it.
“I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance,” Scalia said. “It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it.”Following an exchange between Verrilli and Scalia, Justice Sonia Sotomayor spent a full two minutes outlining the three main elements of the Justice Department’s position, then she asked Verrilli, “Which of these three is your argument? Are all of them your argument?”
Roberts pressed Verrilli to explain where Congress’s power to issue new mandates would stop. The lack of a “limiting principle” has dogged the Justice Department’s case throughout the process, prompting one lower-court judge to question whether Congress could also require citizens to buy broccoli, because a healthy diet would cut down on healthcare costs.
The Supreme Court justices revived the broccoli analogy and ran through several more, asking whether the government could mandate the purchase of cellphones, gym memberships, cars, prescription drugs or burial insurance.
Conservative judges in lower courts have upheld the mandate on the grounds that healthcare is unique, due to the risk of accidents and the nature of its cost-shifting. Although other goods also get more expensive when people don’t buy them, there are few parallels to the requirement to treat uninsured patients.
The mandate is also considered essential to effectively implementing other parts of the healthcare law. Provisions requiring insurance companies to cover sick people, and prohibiting them from charging those patients higher prices, could dramatically raise the price of insurance if not counterbalanced with the mandate.
Senator Mike Lee, Republican, Utah Expects 5-4 Ruling Against Individual Mandate
Train Wreck for Obama's Healthcare Mandate; What Obama's Lawyers Couldn't Answer; Obamacare Going Down the Tubes?
Tuesday was a rough day for the Obama administration in oral arguments in the Supreme Court over mandated insurance.
The Illinois Policy Institute comments on What Obama's Lawyers Couldn't Answer.
The Illinois Policy Institute comments on What Obama's Lawyers Couldn't Answer.
If the government can force you to buy health insurance, what can't they force you to do or buy?
That was the question posed by a number of Supreme Court justices throughout today's oral argument on the constitutionality of ObamaCare. And that was the question President Obama's lawyers couldn't seem to answer.
That question didn't seem to bother the four liberal justices, who appeared ready to uphold the law. At one point, Justice Breyer suggested that the government could force you to buy things such as cellphones and burial insurance. The remaining justices, however, appeared highly skeptical of the government's argument. Justice Kennedy and Chief Justice Roberts, largely believed to be the "swing votes" in this case, pressed the administration's lawyer hard for any kind of limit to the President's theory.
Chief Justice Roberts harshly noted that the type of insurance ObamaCare forces people to buy was completely different from the type of health care these people actually use. Justice Kennedy countered the administration's argument by saying that the government will say that every market is "unique."Train Wreck for Obama
The fact that the Obama administration didn't have a good answer for these questions could spell doom for the President's signature legislation. That doesn't mean the law will ultimately be struck down. After all, the government needs to convince only one of the conservative justices. But today's hearing illustrated just how uncomfortable they are with a law that, as Justice Kennedy proclaimed, "changes the relationship of the federal government to the individual in a very fundamental way."
The Hill reports Rough day for Obama health law: Kennedy among mandate skeptics
The Obama administration’s health insurance mandate faced severe skepticism Tuesday from conservatives on the Supreme Court during a pivotal morning of oral arguments on the landmark legislation.
Justice Anthony Kennedy, the court’s most consistent swing vote, repeatedly voiced doubts about the mandate’s constitutionality, suggesting he could side with the court’s four staunch conservatives to overturn President Obama’s healthcare law.“That changes the relationship of the federal government to the individual in a very fundamental way,” Kennedy said.
Jeffrey Toobin, a lawyer and legal analyst who writes about legal topics for The New Yorker called Tuesday a “train wreck for the Obama administration.”
“This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong,” Toobin said Tuesday on CNN. “I think this law is in grave, grave trouble.”
Supporters of the law had seen Chief Justice John Roberts and Justice Antonin Scalia as possible supporters of the mandate in addition to Kennedy, but the two offered aggressive questions during the two hours of arguments.The debate hinged largely on whether the mandate requires people to enter the market for health insurance or regulates the market for healthcare. Verrilli argued that everyone either uses healthcare or is at risk of unexpectedly ending up in the market for healthcare services. The mandate simply ensures that those services are paid for, he said.
Scalia wasn’t buying it.
“I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance,” Scalia said. “It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it.”Following an exchange between Verrilli and Scalia, Justice Sonia Sotomayor spent a full two minutes outlining the three main elements of the Justice Department’s position, then she asked Verrilli, “Which of these three is your argument? Are all of them your argument?”
Roberts pressed Verrilli to explain where Congress’s power to issue new mandates would stop. The lack of a “limiting principle” has dogged the Justice Department’s case throughout the process, prompting one lower-court judge to question whether Congress could also require citizens to buy broccoli, because a healthy diet would cut down on healthcare costs.
The Supreme Court justices revived the broccoli analogy and ran through several more, asking whether the government could mandate the purchase of cellphones, gym memberships, cars, prescription drugs or burial insurance.
Conservative judges in lower courts have upheld the mandate on the grounds that healthcare is unique, due to the risk of accidents and the nature of its cost-shifting. Although other goods also get more expensive when people don’t buy them, there are few parallels to the requirement to treat uninsured patients.
The mandate is also considered essential to effectively implementing other parts of the healthcare law. Provisions requiring insurance companies to cover sick people, and prohibiting them from charging those patients higher prices, could dramatically raise the price of insurance if not counterbalanced with the mandate.
“That seems to me a self-created problem” that could be solved by not imposing those regulations, Scalia said.Senator Lee Says 5-4 Ruling Against Individual Mandate
Senator Mike Lee, Republican, Utah Expects 5-4 Ruling Against Individual Mandate
Sen. Mike Lee (R-Utah) predicted Tuesday that the Supreme Court will rule against President Obama's signature healthcare legislation and declare the individual mandate unconstitutional.
"Based upon the questions from the bench, I am predicting that there's likely to be a 5-4 ruling in this case. I tend to think it's a 5-4 ruling holding that the individual mandate is unconstitutional," said Lee on Fox Business Tuesday.
Lee said that he sensed Kennedy, who is considered the traditional swing vote on the court, appeared "very skeptical" about the Justice Department's argument in defense of the mandate.
Lee, who clerked for Supreme Court Justice Samuel Alito on the U.S. Court of Appeals for the Third Circuit Court, also noted that today's hearing was uncharacteristically "lively."
Interview With Senator Lee
Link if video does not play: Senator Lee on Healthcare
The Illinois Policy Institute asks the correct question "If the government can force you to buy health insurance, what can't they force you to do or buy?"
Regardless of whether or not one thinks we need national healthcare, legislation ought to pass strict constitutional muster. Obamacare doesn't, and thus deserves to be flushed down the toilet. Congress can try again.
and.....
Link if video does not play: Senator Lee on Healthcare
The Illinois Policy Institute asks the correct question "If the government can force you to buy health insurance, what can't they force you to do or buy?"
Regardless of whether or not one thinks we need national healthcare, legislation ought to pass strict constitutional muster. Obamacare doesn't, and thus deserves to be flushed down the toilet. Congress can try again.
and.....
Supreme irony? Top court poised to throw out Obamacare in echo of case Obama made
against Hillary Clinton
It is a tad unfortunate that just days after the White House embraced the term"Obamacare" - previously regarded on the Left as a pejorative label - a majority of thenine Supreme Court justices have given strong indications they will rule it unconstitutional.
Even more ironic is that the justices, or five of them at least, look like they might force President Barack Obama back to the drawing board partly on the basis of the argument one Senator Obama made against then Senator Hillary Clinton in 2008.
At issue today was the so-called 'individual mandate" - the federal government's act of compelling Americans to buy health insurance. It is the centrepiece of the Affordable Health Care Act - aka Obamacare - which is the signature achievement of Obama's presidency thus far.
But back during the 2008 campaign, Obama argued strenuously against the individual mandate. In a debate in South Carolina, he said: "A mandate means that in some fashion, everybody will be forced to buy health insurance. ... But I believe the problem is not that folks are trying to avoid getting health care. The problem is they can't afford it. And that's why my plan emphasises lowering costs."
In February 2008, he said that you could no more solve the issue of the uninsured with an individual mandate than you could cure homelessness by ordering people to buy a home:
This was one of the policies that allowed him to differentiate himself from Clinton and John Edwards, the serial sleazeball who (believe it or not given what we now know he was up to) had a pretty good shot at winning the Democratic nomination.
Obama felt so strongly about the issue that he even cut an ad attacking Clinton for her support of the individual mandate. "Hillary Clinton's attacking, but what's she not telling you about her health care plan?" the April 2008 ad asked. "It forces everyone to buy insurance, even if you can't afford it, and you pay a penalty if you don't."
Once in office, Obama changed his mind, telling CBS in July 2009: "During the campaign I was opposed to this idea because my general attitude was the reason people don't have health insurance is not because they don't want it, it's because they can't afford it. And if you make it affordable, then they'll come. I am now in favour of some sort of individual mandate as long as there's a hardship exemption." This volte face merited a "full flop" rating from Politifact.
Fast forward to today and there were five justices who appeared to be dead set against the idea of an individual mandate. Justice Clarence Thomas hasn't asked a question in the court for six years but as the most conservative lawyer on the court is a safe "no". You can find a transcript of the oral arguments here and audio can be downloadedhere.
Justice Antonin Scalia asked the flailing Solicitor General Donald Verrillii: "Could you define the market? Everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli."
Chief Justice John Roberts queried: "So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?"
Justice Samuel Alito jabbed: "All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, 'You know what you're doing? You are financing your burial services right now because eventually you're going to die, and somebody is going to have to pay for it, and if you don't have burial insurance and you haven't saved money for it, you're going to shift the cost to somebody else'. Isn't that a very artificial way of talking about what somebody is doing?"
Worst of all for Obamacare supporters, Justice Anthony Kennedy, always viewed as the swing vote on the court, sounded like one of the most sceptical of all. "The reason this is concerning, is because it requires the individual to do an affirmative act," he said at one point. "In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger.
At other junctures he asked "Can you create commerce in order to regulate it?" and "So the Federal government says everybody has to join an exercise club?"
Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor seemed on the side of upholding the mandate - though in the case of Sotomayor there was, surprisingly, some doubt. The only hope for liberals appears to be that Roberts, who is known to be leery of the court being seen as overly political, comes down on their side after some of his questions gave them a modicum of encouragement.
If Obamacare is thrown out it is likely to be a political disaster for Obama, and could very well be a nail in the coffin of his re-election hopes. Some Democrats believe such an outcome could allow Obama to run against a right-wing Supreme Court as well as a right-win, do-nothing Congress.
But it would be difficult to portray Justice Kennedy is an obstructionist Republican, just as it will be hard to run against a Congress that is controlled in one chamber by the Democrats. And running as an outsider while living at 1600 Pennsylvania? Good luck with that.
Given Obama's open mic gaffe - "After my election, I have more flexibility" - yesterday, the potential for creating a narrative that the President is a slippery, disingenuous campaigner is very real. American Crossroads, the Republican super PAC, has already been quick off the mark with this web ad on Obama as a health care flip flopper:
But the most fundamental problem for the President is that if the heart of Obamacare is ruled unconstitutional then he will be left empty-handed after spending two years and virtually all his political capital on jamming through the bill without a single Republican vote.
In short, it will make him look like a loser - not a quality Americans value in their presidents. And the fact that the Republican nominee will be able to quote Obama's own criticisms of the individual mandate against him will be the icing on the cake.
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