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The Supreme Court of the United States
Some day this week, a little bit after 10 AM EDT, the Supreme Court will announce its decision in the suits challenging the constitutionality of the Affordable Care Act, one of the five remaining decisions from the current term. What, exactly, will the Court be deciding?

1. Whether the Anti-Injunction Act bars a challenge to the individual mandate at this time.

As Armando initially explained, the AIA is an 1867 law which says that you can't sue the government to prevent it from assessing a tax against you; you have to wait to be taxed, and then you can challenge it. So, if the mandate is a "tax," a challenge to the mandate can't be heard until 2014-15. Both the 4th Circuit and conservative stalwart DC Circuit Judge Brett Kavanaugh bought this argument, even though the parties themselves didn't advocate for it, and the Supreme Court appointed outside counsel to advocate this view before it.

After oral argument, I didn't think the justices were persuaded by this argument. That said, in her American Constitution Society address on June 15, Justice Ginsburg did joke that this was the issue which America was waiting for, so ... who knows?  

[If the Court finds the AIA applicable, skip to 4.]

2. Is the Minimum Coverage (individual mandate) provision constitutional?

The big question. Either the Court deems the requirement to be within the necessary and proper powers of Congress in tackling a national problem which clearly affects interstate commerce, or it can overturn precedent going as far back as McCullough v. Maryland (1819), which proclaimed: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

And as we all know, oral argument made a ruling of unconstitutionality seem likely, with Justice Scalia's fortuitous flip-flop on the Wickard precedent depressing hopes further. All I'm willing to say right now is that it's more likely than not that the individual mandate will fall, and the folks on Intrade agree.

[If the Court finds the mandate constitutional, skip to 4.]

3. If the Minimum Coverage provision is unconstitutional, what else must go?

This is the severability question. Because the ACA itself did not contain a provision expressing what should happen should any provision be struck down, it's for the Court to decide. There are three options: (a) everything must fall, because the ACA would not have passed without the mandate and it's better to let Congress figure out what Congress wants without a mandate (the opponents' position); (b) the Guaranteed Issue (preexisting conditions protection) and Community Rating provisions must fall, because they're inextricably intertwined with the mandate (the government's position); or (c) everything else still stays (a position argued by no party, but argued by an amicus brought in by the Court).

I still expect this issue to greatly divide the Court, and it's here, I think, that the chief justice and Justice Kennedy may endeavor to hold some center together and let most of the bill stand.

[If the answer to 3 is (a), skip question 4. You're done. Otherwise ... ]

4. Does the Medicaid expansion constitute unconstitutional coercion of state governments?

Unless the whole bill falls, the Court will have to answer this question regardless of its answers on the Anti-Injunction Act and the mandate: Were the conditions placed on the states via ACA's expansion of Medicaid coverage so coercive as to be unconstitutional? I didn't think this argument grabbed five votes at oral argument, but the Court's five conservatives are full of surprises.

What else to expect: There will likely be many opinions issued as part of this decision; I've set the over/under at 5.5. Pay careful attention as to which parts of which opinions have the support of at least five justices; that's what controls. As Justice Brennan explained to his clerks every year, the most important rule of constitutional law they needed to understand was the Rule of Five: With five votes, the justices can do anything. And this week, they will.

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Comment Preferences

  •  I think your argument raised in #3 is what (8+ / 0-)

    will happen.

    If that happens I think that the White House and the Democrats can live with that result.

    The result in which everything is thrown out would smell SO political and totally unprecedented that even Justice Roberts and Kennedy won't go for it and instead give the 6 to 3 ruling of which most of the bill stands except the individual mandate and the parts of the bill it directly affects such as pre-existing conditions.

    We shall see...

    President Obama, January 9, 2012: "Change is hard, but it is possible. I've Seen it. I've Lived it."

    by Drdemocrat on Sun Jun 24, 2012 at 06:07:17 AM PDT

    •  But aren't they really (33+ / 0-)

      ... just that partisan?  If Citizens United didn't seem a problem for them, why should this?  At this point in time, I worry about anything going before that court.

      In fact, if there's a single argument that trumps all others about why it's important to support Obama for November it's that it will make a monstrous difference if Ginsburg gets replaced by another Roberts/Alito/Scalia/Thomas - one who's 50 or younger.  Because that is what we'll get; and what we'll be stuck with for many decades to come.  (Clarence Thomas being the most lasting legacy of Bush I, who might be another 20 years on the court, being only in his mid-60s now.  And having replaced Thurgood Marshall only makes that worse.)

      Meanwhile, my household has a member on one of those pre-existing condition plans.  So this result has immediate relevance to our household.

      Grab all the joy you can. (exmearden 8/10/09)

      by Land of Enchantment on Sun Jun 24, 2012 at 06:21:30 AM PDT

      [ Parent ]

      •  Hi LOE, I hope and believe (9+ / 0-)

        that if God forbid Obama is not re-elected, Ginsburg will make every effort to tough out another four years, if her health allows.

      •  Off Topic, But (7+ / 0-)

        I don't see Clarence being the Numero Uno lasting legacy of Bush I.

        Certain members of the Senate fought tooth and nail for CT (in spite of the fact he had the lowest ABA rating ever rgarding SCOTUS potentials).

        The POTUS can recommend Bozo the Clown for a court position if he wants to-- it's up to congress to approve/not approve. they have the power.

        So this is another example of Congress FAIL.

        Poppy Bush's legacy is more about his infamous Christmas surprise-- where he at the last minute (to protect his own ass) pardoned several people going down in flames due to the Iran-Contra scandal.

        Also, he's a rare recent example of an incumbent POTUS getting booted from office.

        "A civilization which does not provide young people with a way to earn a living is pretty poor". Eleanor Roosevelt

        by Superpole on Sun Jun 24, 2012 at 07:12:45 AM PDT

        [ Parent ]

        •  Bush I WH fought tooth and nail to confirm Thomas (9+ / 0-)

          Do you really think that  Simpson, Specter, and Hatch engaged in a coordinated smear campaign against Prof. Hill totally on their own accord?*   Specter, in particular, was worried about a primary challenge on his right flank b/c he voted against Bork's nomination, and he gladly toed the party line.

          According to the book Strange Justice, Bush personally witnessed a Thomas pre-confirmation hearing briefing session.  The book further notes that the 2 FBI agents in OK who initially interviewed Prof. Hill executed affidavits suggesting that she embellished her testimony before Judiciary--these affidavits were promptly released to the media.

          Quayle was sent to preside over the Senate on the day of the vote in case a tiebreaker was needed (final tally was 52-48).  Given the high confirmation % of SCOTUS nominees in the 20th century,  Bush I nominated CT w/ every expectation that he would be confirmed.  In fact, until Prof. Hill's story emerged near the end of the confirmation process, CT's confirmation was a sure thing.

          I agree that the Senate Dems totally blew this confirmation process.  In particular, Judiciary Chairman Biden, who distinguished himself in the Bork confirmation process, did not distinguish himself here.  Ted K, 6 mos after the Au Bar controversy in Palm Beach,  was compelled to stay silent during these hearings.   It took a group of women MOC's to shame the Judiciary Dems into finally taking Hill's accusations seriously.   At the end of this sordid process, 10 Senate Dems voted aye.

          It took the efforts of many to put a marginally qualified right-wing hack w/ numerous credibility issues on the Supremes for 21 years now (and probably at least another 10 years).  While the Dems erred badly, this disgrace started w/ the Bush I WH.  That gift that keeps on giving was the worst thing Poppy did as POTUS.

          As to the subject of the diary, I think that there's a 99.9% chance that the mandate will be thrown out 5-4.  I'm not that optimistic about the rest of the bill, largely b/c it contains no severability clause and b/c the WH consciously chose to stake its chips on affirming the mandate.

          *It's fascinating to note that the GOP focus during the supplemental hearings on Hill's accusations was on tearing down her rather than building up CT.  Their politics of personal destruction has a long and a proud history.

          Some men see things as they are and ask why. I dream of things that never were and ask why not?

          by RFK Lives on Sun Jun 24, 2012 at 07:46:59 AM PDT

          [ Parent ]

          •  Simpson, Specter, and Hatch (0+ / 0-)

            these are senators, correct?

            Thank you for reinforcing my point: they decide who gets appointed to the SCOTUS. not the POTUS, thus this is not a huge legacy of poppy bush.

            I'm not going to waste my time looking it up; I already know enough "democratic" congresspeople stupidly supported Clarence.

            I realize that's a problem most here want to ignore.

            "A civilization which does not provide young people with a way to earn a living is pretty poor". Eleanor Roosevelt

            by Superpole on Sun Jun 24, 2012 at 08:26:38 AM PDT

            [ Parent ]

            •  You're turning a both/and question into either/or (3+ / 0-)
              Recommended by:
              ozsea1, jayden, Dump Terry McAuliffe

              question.  As I explained in detail above, there's ample blame to pass around in this fiasco.  For some reason, you want to downplay the role of the guy who actually nominated CT.

              It is naive in the extreme to think that Simpson, Specter, and Hatch acted solely on their own accord.

              Some men see things as they are and ask why. I dream of things that never were and ask why not?

              by RFK Lives on Sun Jun 24, 2012 at 09:15:06 AM PDT

              [ Parent ]

      •  Yes, they are, and I'm glad you said this, (6+ / 0-)

        Citizens has been compared to Dread Scott. That's how bad this court is.

        "But Brandine, you're supposed to be in Iraq stopping 911!"

        by leftyguitarist on Sun Jun 24, 2012 at 07:22:14 AM PDT

        [ Parent ]

      •  Yes, the Court IS partisan ... and members (4+ / 0-)

        ... do each for issues in cases, sometimes issues or relief not even argued by the parties or re-argued at the Court's request to treat the issue the conservatives want to decide.

        The Second Amendment gun case from DC was an example. So was Citizens United. ACA wasn't such a case, but it probably will be one the Court will extend its "reach." These guys are neo-John Marshalls, waiting, waiting.

        I think the SCOTUS conservatives will try very hard to confabulate a ruling to try to pollute Congress's future attempts to craft reasonable health care/insurance reform. Their problem will be that - as we so well know - this is an activist Court, which not only reaches for cases and will enjoy invalidating "New Deal" social legislation ... but it will not want to disempower Congress from enacting conservative legislation. Some of that will require Congressional powers, some of which are almost certainly lodged somewhere in the 14th Amendment.

        So the Court's path through ACA will be tricky.

        Obama and strong Democratic majorities in 2012!

        by TRPChicago on Sun Jun 24, 2012 at 07:24:46 AM PDT

        [ Parent ]

        •  SCOTUS Is _Economically_ Partisan More (0+ / 0-)

          than politically partisan.

          Most cases involving money or corporations-- the SCOTUS is pro corporate. the CU ruling is about the SCOTUS equating wealth/use of wealth as a "free speech" issue when it's more about leverage to benefit the wealthy class. Again, there's a long history of this, read Zinn's book. There's nothing new here.

          it just so happens many in the wealthy class are GOP'ers. if they were liberals, I've a feeling we'd not have much to talk about.

          "A civilization which does not provide young people with a way to earn a living is pretty poor". Eleanor Roosevelt

          by Superpole on Sun Jun 24, 2012 at 08:21:27 AM PDT

          [ Parent ]

          •  "Not much to talk about" - Gun violence? Women's (2+ / 0-)
            Recommended by:
            ozsea1, indie17

            ... right to sue employers for previously undiscoverable discrimination? Capital punishment?

            Quite an array of health and social services issues will be coming before the Supreme Court. While the results of such cases might be rationalized on economic grounds, many conservative biases run on tracks other than wealth.

            As for the electorate, very few - relatively - are wealthy. And while most of those may be Republicans (exit polling typically doesn't cut income levels that fine), it's the con job that monied interests have done on the non-wealthy electorate that is producing some of the screwiest politics in several generations. Under the guise of economic issues (as in "Taxed Enough Already"), the wealthy cons have enlivened and emboldened the hotbed of US conservatism, when many in that cadre are decidedly not voting their pocketbooks at all and, in fact, are voting against their financial interests.

            From an election standpoint, that's the challenge we have: to unhook some of the voters - in 2012, it won't take that many! - who've been captured by the strategy of the wealthiest among us.

            Obama and strong Democratic majorities in 2012!

            by TRPChicago on Sun Jun 24, 2012 at 09:34:13 AM PDT

            [ Parent ]

            •  I Meant Regarding the SCOTUS (0+ / 0-)

              "As for the electorate, very few - relatively - are wealthy."

              Got it. So why is nearly half of the senate made up of Millionaires? that's representative?

              "when many in that cadre are decidedly not voting their pocketbooks at all and, in fact, are voting against their financial interests".

              This one is wearing thin.

              These people are broke, UNemployed. they don't have "financial interests".

              Nobody here has demonstrated how to get these folks to the polls in November

              "A civilization which does not provide young people with a way to earn a living is pretty poor". Eleanor Roosevelt

              by Superpole on Sun Jun 24, 2012 at 12:45:38 PM PDT

              [ Parent ]

    •  I thought the IM was crucial (1+ / 0-)
      Recommended by:
      dinotrac

      in the plan working? If we just cover everyone with pre existing conditions without requiring the IM then the insurance companies will just raise the premiums through the roof.

      There will be coverage for pre existing conditions but no one will be able to afford the cost unless all are in the system.

      •  I think it was sold that way, but, really, the (5+ / 0-)
        Recommended by:
        Mayfly, Adam B, ferg, wsexson, Esjaydee

        only part of the law the individual mandate matters for is the elimination of pre-existing condition exclusions.

        The argument is this:

        In the absence of an exclusion for pre-existing conditions, people have no incentive to buy insurance.  They'll just wait until they get sick, and then buy it.  Consequently, insurance rates will have to be adjusted upward.

        It's not an unreasonable argument, but doesn't stand up on close inspection.

        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

        by dinotrac on Sun Jun 24, 2012 at 07:15:23 AM PDT

        [ Parent ]

        •  there are other ways to make (0+ / 0-)

          it effectively a mandate without having a "mandate"...

          enrollment limited to certain weeks in the year, differential pricing for those who enroll at various times, etc...  combined with the subsidies, that could work.

          or like how you have to buy the supplemental coverage right at 65 or the price goes way up...if you want it later...

    •  They admit they didn't read the whole thing (0+ / 0-)

      So if they throw the whole thing out they admit to dereliction of duty.

      •  MyMy - how many members of Congress (0+ / 0-)

        who voted for the ACA read the whole thing? I do think we should have a rule in Congress that members would have to sign an affidavit that they had read an entire bill before they vote for it.

        The way the SCOTUS works is that the Justices clerks so the reading, find those areas that are critical, and write memos on the key issues. That allows the Justices' to focus their time on what is really important.

        "let's talk about that"

        by VClib on Mon Jun 25, 2012 at 12:24:48 AM PDT

        [ Parent ]

  •  Overturn precedent? (6+ / 0-)

    Don't be ridiculous.
    Your own quote gives away the game with:

    let it be within the scope of the constitution
    because that's the question at hand.

    DK folk do not like to have the Constitution place any limits on the government (Due process is in there,too.  Can limits on government power really be that bad?) and are not creeped out by a governmental requirement to buy a privately produced product (health insurance) that looks a bit too much like fascism for some of us.

    But -- using the commerce clause for people who have not and may never engage in the commerce used to justify the mandate is new territory.

    The argument is not that people do engage in commerce.  It's not even that they will engage in commerce.  It's that they MIGHT engage in commerce.  The fact that most of us will does not change that might to a certainty.

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Sun Jun 24, 2012 at 06:08:05 AM PDT

    •  I think the reason why many court watchers (4+ / 0-)
      Recommended by:
      TofG, Amber6541, dinotrac, Mayfly

      believe that the SCOTUS won't throw the whole thing out is because during the oral arguments many of the conservative judges seemed skeptical about doing just this including Justice Alito.

      President Obama, January 9, 2012: "Change is hard, but it is possible. I've Seen it. I've Lived it."

      by Drdemocrat on Sun Jun 24, 2012 at 06:29:17 AM PDT

      [ Parent ]

    •  If buying insurance is too much like fascism (10+ / 0-)

      what is it called when I have to foot the bill for those uninsured? Tough luck? Too bad?

      •  LI Mike: or what is it called when we have to (5+ / 0-)
        Recommended by:
        J M F, Mayfly, foolme1ns, ozsea1, thomask

        foot the bill for employee pension funds stolen by the racketeering exploits if Mittens/Bain?  

        "It took us a couple of days because I like to know what I'm talking about before I speak." President Barack Obama 3/24/09

        by sfcouple on Sun Jun 24, 2012 at 07:08:36 AM PDT

        [ Parent ]

      •  Are you opposed to the subsidies? (4+ / 0-)
        Recommended by:
        Mayfly, annecros, ozsea1, wsexson

        The ACA will be giving people taxpayer subsidies to buy  health insurance.  Since you don't like your money being used to pay for uninsured's medical bills, how do you feel about your money being used to pay these same people's insurance bills?

      •  It seems the government (0+ / 0-)

        or businesses (hospitals) can force Americans to pay for others what they will not pay for themselves.  

        I say the best thing is for everyone to stop buying insurance.  Then we can all pay for each other when we get sick of injured.  

        These stupid people arguing this will not see that they would be a whole lot better off if we had a single payer system, because, in the end, we all are forced to pay anyway, and much more than is necessary.

      •  The mandate is unprecedented in its requirement (3+ / 0-)
        Recommended by:
        coffeetalk, squarewheel, VClib

        for a private citizen to enter into privity of contract with a third party (and in this case, most likely a for-profit entity). The drafters of ACA could have avoided this by making non-participation a taxable event.  They did not want to be tarred with the brush of raising taxes, so they got cute.  A bit too cute.

        Unfortunately, there is nothing in the logic of supporters of the mandate that would preclude the Federal government from mandating buying a Buick.

        I find astonishment at the fact the mandate may be held unconstitutional to be either naive or disingenuous.

        That said, I support mandatory health coverage for all, the sooner the better, but as part of an incontestable public program.

        I tremble for my country when I reflect that God is just; that his justice cannot sleep forever. ~Thomas Jefferson

        by bobdevo on Sun Jun 24, 2012 at 10:33:06 AM PDT

        [ Parent ]

        •  interesting though that Scalia used the "broccoli" (1+ / 0-)
          Recommended by:
          evangeline135

          argument rather than the "Buick" argument -- there would probably have been a fair number of people who were like "hmmmm...it wouldn't be too bad to have a Buick..."

        •  bull. I George Washington's first term (0+ / 0-)

          there was the militia bill mandating each man 18-45 buy a musket, certain amount of bullets, powder etc.

          I hope that was noted in the brief.

          Right now medicare D, that part that covers prescriptions requires private insurance.

          I'm asking you to believe. Not in my ability to bring about real change in Washington ... *I'm asking you to believe in yours.* Barack Obama

          by samddobermann on Mon Jun 25, 2012 at 05:48:26 AM PDT

          [ Parent ]

          •  That is a canard, Sam. (0+ / 0-)

            You quite simply don't know what you're talking about - the militia bill was not instituted under the Commerce Clause, it is more analagous to the draft.

            The Militia Act mandating purchase of weapons was made under Article 1, Section 8 of the Constitution, with seven enumerated clauses regarding the militia, navy, and defense of the United States, not by virtue of the Commerce powers.

            I tremble for my country when I reflect that God is just; that his justice cannot sleep forever. ~Thomas Jefferson

            by bobdevo on Wed Jun 27, 2012 at 01:19:17 PM PDT

            [ Parent ]

    •  "The Constitution is a living, breathing document" (5+ / 0-)
      Recommended by:
      sfcouple, dinotrac, J M F, coffeetalk, annecros

      I believe I've heard that around here at least a few times..

      That concept of a dynamic document seems to fall by the wayside when one or another precedents favors your side in a particular case.  Why is a precedent from the 1940's any more relevant today than an Originalist interpretation of the document itself?

      Snarkiness aside, I too am "creeped out" by a government wielding such power.  

    •  Comfort for families (3+ / 0-)
      Recommended by:
      TexasTom, MyMy, ozsea1

      When Johnny gets sick and dies because he was not required to carry insurance, his family will be comforted knowing that Johnny died fighting Fascism.

      •  About the same, I imagine, if he is hit by a car (3+ / 0-)
        Recommended by:
        Mayfly, Brown Thrasher, wsexson

        or suffers an embolism or drowns in a lake.

        More to the point, why is the problem that he's not required to carry insurance?  

        Why isn't the problem that the government doesn't provide it?

        Why isn't the problem that Democrats were too cowardly to implement a proper tax and resolve the problem in a fully Constitutional manner?

        In fact, it might not take that big a change to make the provision consitutional.

        Think of the way that the Fed is able to make states impose speed limits, drinking ages, etc:  as a condition for receipt of federal highway funds.  Don't want to do that stuff? Fine. We won't help you build roads.

        A similar situation here might be a federal insurance plan, funded by taxes, with an option to designate a private insurance carrier to administer your health care needs.

        Or even like public schools:

        We pay taxes for public schools whether or not we have kids.  If we do have kids, we are free to send them to private school, but we still must pay the taxes that fund public schools.

        Nobody tells us that we have to go purchase education from a private school.

        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

        by dinotrac on Sun Jun 24, 2012 at 07:24:17 AM PDT

        [ Parent ]

        •  Ah, we agree HC should be provided (6+ / 0-)

          The worst part is we argue about this and that when it is proven that for profit insurance can't be sustained.

          I don't know the exact time but when the idiots are paying more for health insurance than all their other bills combined, they will listen.

          I have always advocated Medicare for all. The insurance companies will still be relevant with supplement policies.

          •  I grew up with military health care. (1+ / 0-)
            Recommended by:
            VClib

            Much better than I get now and not a bad model for the country.

            That doesn't make me willing to stretch the Constitution to impossible limits or give the government even more power to limit my personal freedom.

            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

            by dinotrac on Sun Jun 24, 2012 at 09:12:53 AM PDT

            [ Parent ]

            •  I snap to the salute, sir! (3+ / 0-)
              Recommended by:
              tommy2tone, joe wobblie, indie17
              That doesn't make me willing to stretch the Constitution to impossible limits or give the government even more power to limit my personal freedom.
              Wow, rightwing hyperbole much?

              Both parties are beholden to their corporate sponsors. The Democratic Party deigns to throw us a few bones from the table on which to gnaw and squabble over, but it's just kabuki.

              by ozsea1 on Sun Jun 24, 2012 at 09:57:50 AM PDT

              [ Parent ]

              •  Are you saying that progressives prefer to trash (0+ / 0-)

                the constitution and control people's lives?

                I am amazed that you would consider that statement to be hyperbole.

                LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                by dinotrac on Sun Jun 24, 2012 at 10:54:49 AM PDT

                [ Parent ]

                •  Said no such thing (0+ / 0-)

                  and your commentary is such a transparent FAIL as to be pathetic.

                  Clue - avoid the obvious rightwing squawking points.

                  Both parties are beholden to their corporate sponsors. The Democratic Party deigns to throw us a few bones from the table on which to gnaw and squabble over, but it's just kabuki.

                  by ozsea1 on Sun Jun 24, 2012 at 11:41:37 AM PDT

                  [ Parent ]

                  •  Of course you did, even if you do want to weenie (0+ / 0-)

                    out now.

                    That doesn't make me willing to stretch the Constitution to impossible limits or give the government even more power to limit my personal freedom.
                    You called that right-wing hyperbole.

                    Let's review:

                    This is a case where the government wishes to force people into buying the products of private companies.

                    That does stretch the commerce clause further than it's ever been stretched before and it does limit personal freedom.

                    By your statement, you clearly find it ridiculous that anybody would object to over-intrusive government.

                    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                    by dinotrac on Sun Jun 24, 2012 at 11:48:18 AM PDT

                    [ Parent ]

                    •  Let's review some more (3+ / 0-)
                      Recommended by:
                      indie17, vcmvo2, Danali

                      QUACK QUACK

                      This is a case where the government wishes to force people into buying the products of private companies.
                      Ever hear of plenary power? States do this "mandate stuff" all the time. Oh noes, the abuse!!! See, I'm being oppressed! I have to do something I don't wanna !!!

                      Yet, why is it only now that you crawl out from under your rock to squeal about this?

                      QUACK QUACK

                      That does stretch the commerce clause further than it's ever been stretched before and it does limit personal freedom.
                      QUACK QUACK
                      By your statement, you clearly find it ridiculous that anybody would object to over-intrusive government.
                      No, I object to anyone that would troll this site with rightwing squawking points.

                      So please....

                      Both parties are beholden to their corporate sponsors. The Democratic Party deigns to throw us a few bones from the table on which to gnaw and squabble over, but it's just kabuki.

                      by ozsea1 on Sun Jun 24, 2012 at 12:31:09 PM PDT

                      [ Parent ]

              •  I agree.. (2+ / 0-)
                Recommended by:
                ozsea1, Danali

                When I read anyone bring up the Constitution, I know a righty is in the room. Yet they never mention the Constitution has been amended many times over the years.

            •  Stretch the Constitution, you say. (0+ / 0-)

              19 of 21 constitutional scholars say it's constitutional.

              Are you some kind of bonafide constitutional scholar?

              http://www.bloomberg.com/...

          •  Well.. (0+ / 0-)

            for profit insurance does just fine in other countries with national health care.

            The Dutch system is 100% administered by private providers.  The government picks up most of the claims, and the private insurers get to sell add-on insurance to citizens enrolled with them.  The poor get the already meager premiums picked up by the government.

            The worst part is we argue about this and that when it is proven that for profit insurance can't be sustained.
            It is not sustainable as it is currently.. that I can agree with.
            •  it works there, and in some other (1+ / 0-)
              Recommended by:
              GRLionsFan

              places, because the government regulates health care prices.

              We don't do that here, and the demand for healthcare is not "elastic," as the economists say, so it won't work here.

              Or at least, it will be a hell of a lot more expensive to make it work here.

    •  That McCullough quote is a tautology (5+ / 0-)
      Recommended by:
      dinotrac, J M F, Mayfly, bwintx, wsexson

      "all means... [which] consist with the letter and spirit of the constitution, are constitutional".  So things which are constitional are constitutional? That says nothing at all.

      I'm not a lawyer, but that precedent, in particular, seems especially flimsy.

      To believe that markets determine value is to believe that milk comes from plastic bottles. Bromley (1985)

      by sneakers563 on Sun Jun 24, 2012 at 07:06:28 AM PDT

      [ Parent ]

    •  Strawman agrument (3+ / 0-)
      Recommended by:
      joe wobblie, indie17, Danali

      When your authoritative-sounding comment begins with admonishing the diarist - who is infinitely better informed than you - as 'ridiculous', and then proceeds to this bit of broad-brushed strawman crapola:

      DK folk do not like to have the Constitution place any limits on the government
      then I call FAIL, FAIL and more FAIL.

      The Commerce Claus has been interpreted rather broadly for my tastes - see Gonzales v. Raich- but for this partisan SCOTUS and its cheerleader and fluffers here at DK, nothing is off the table.

      Both parties are beholden to their corporate sponsors. The Democratic Party deigns to throw us a few bones from the table on which to gnaw and squabble over, but it's just kabuki.

      by ozsea1 on Sun Jun 24, 2012 at 09:55:23 AM PDT

      [ Parent ]

  •  analysis (4+ / 0-)
    Recommended by:
    tle, TofG, Mayfly, vcmvo2

    thanks for the analysis, and I would like to add, at least it is analysis

  •  #4 (13+ / 0-)

    In the Reagan years, states got coerced into raising their drinking age to 21.  The means was that if the drinking age stayed lower (18 in New York, for example), then they wouldn't get any highway money.  None.  Zero. Zip.

    It was very effective coercion.  All the states who didn't already have 21 as their drinking age quickly went along.  Perhaps not a perfect parallel, but certainly an example of heavy-handed coercion.

    Grab all the joy you can. (exmearden 8/10/09)

    by Land of Enchantment on Sun Jun 24, 2012 at 06:16:28 AM PDT

  •  A report given on the Rachel Maddow (21+ / 0-)

    show the other night discussed the GOP proposal for Medical Coverage that was written in response to the Clinton proposals in the 90's.  It was guided by Bob Dole, but had the backing of a majority of the GOP including some of today's Congressional players.  A main focus of the bill was mandatory coverage, and there even was a video played of Newt Gingrich explaining why people should be fined if they didn't buy the insurance.  

    If the SC justices miss reviewing this history, then it just reconfirms that that are some of the most activist judges in the history of the court.

    We already know about the flip-flopping hypocrisy of today's GOP, and we know what's behind it.

  •  IF Good For Rich Pig$, Then Con$titutional. (11+ / 0-)

    IF Good For Peee-ons, THEN UN-Constitutional.

    It seems to me pretty simple ...

    the fascist activists ... the fasc-tivists ... the fasctivists!!

    The fasctivists consistently work hard to write big words, big sentences and big paragraphs to make it easier to fuck over know no-bodies like me.

    I'd prefer they'd just put a huge balance scale in front of their beautiful temple of lofty ideals, and disgrace the ideals honestly - whoever puts the most gold on the scale wins.

    Can we ALL step back and look at the thousands of priestly people spending thousands and thousands of hours reading these fancy goat entrails and sophisticated chicken guts...

    can we all step back and look at all the community treasure which pays for priestly people deciphering the fancy and sophisticated guts ...

    can we all step back and look at the treasure and time which does NOT take care of retired granny or fix the bridge or retrain the unemployed or deliver the food or regulate the wall street scum or grow the food or upgrade the transit system ...

    when the aliens drop buy our expired 'civilization' someday & they decode our histories, they'll see millenia of parasitical elites fucking each other for the right to fuck everyone ... and, oh, by the way ... the peeee-ons figured out some cool stuff along the way, BUT ... the government of the elites, by the elites and for the elites perished the race.

    rmm.

    Yond Cassius has a lean and hungry look; He thinks too much: such men are dangerous

    by seabos84 on Sun Jun 24, 2012 at 06:21:52 AM PDT

  •  After the 2000 selection of Bush (22+ / 0-)

    I was amazed that Justice Sandra Day O'Conner was taken aback by the animosity that action sparked. I know the justices live in kind of a bubble on purpose. But seeing the conservative justices do things like cozy up to the Kochs and even participate in one of the Koch's fund raisers is sickening to me. I would fee the same about liberal justices if they did that.

    How much do you think the justices care about what the common person thinks?

    To live a creative life, we must lose our fear of being wrong. -Joseph Chilton Pearce

    by glitterscale on Sun Jun 24, 2012 at 06:26:00 AM PDT

    •  And don't forget that she voted for Bush (10+ / 0-)
      The Court ruled 5–4 that no constitutionally valid recount could be completed by a December 12 "safe harbor" deadline. The Court asserted that "the Supreme Court of Florida has said that the legislature intended the State's electors to 'participate fully in the federal electoral process,' as provided in 3 U.S.C. § 5." The Court therefore effectively ended the proposed recount, because "the Florida Legislature intended to obtain the safe-harbor benefits of 3 U. S. C. §5."

      Four justices (Justices Stevens, Ginsburg, Souter and Breyer) dissented as to stopping the recount.

      And
      O'Connor joined with four other justices on December 12, 2000, to rule on the Bush v. Gore case that ceased challenges to the results of the 2000 presidential election (ruling to stop the ongoing Florida election recount and to allow no further recounts). This case effectively ended Gore's hopes to become president. Some legal scholars have argued that she should have recused herself from this case, citing several reports that she became upset when the media initially announced that Gore had won Florida, with her husband explaining that they would have to wait another four years before retiring to Arizona.
      I've seen O'Connor portrayed as "in the center".  Maybe, but only because the shift to the right is so extreme.  And she added to that.

      I am become Man, the destroyer of worlds

      by tle on Sun Jun 24, 2012 at 06:42:57 AM PDT

      [ Parent ]

    •  That particular lady (3+ / 0-)
      Recommended by:
      ozsea1, blueoasis, glitterscale

           is no longer part of the problem...
        We have now the far more serious instances of so-called "Justices" being
      bought and controlled in a Svengali like manner by the moneyed might
      of the neo-fascist reactionary forces who are assuming the ownership
       of Our Government.
      "The basic definition of fascism is when corporations
                                                   take over the government."
      - Jesse Ventura
      (and what better way than to have some treasonous judges make them people!)

      ! The swinistic greed and racial hatred of the American ruling elite is abysmal !

      by joe wobblie on Sun Jun 24, 2012 at 07:45:52 AM PDT

      [ Parent ]

  •  the court will rule on itself tomorrow (8+ / 0-)

    I agree with Pelosi it will be 6-3 for Obamacare, forget about 5-4 if Kennedy sides with Kagan Brennan Ginsburg and Sotomayor ...so will Roberts he would want to lay down some markers limiting argument to the commerce clause

    /If a man does not keep pace with his companions, perhaps it is because he hears a different drummer/. Thoreau

    by hron on Sun Jun 24, 2012 at 06:30:13 AM PDT

    •  Me too. (0+ / 0-)

      For no other reason than this current court is so 'pro' corporations and business.
      The insurance industry and the hospital industry WANT this to pass.

      Without the mandate the insurance companies begin their downward spiral-leaving the only option; Single Payer care which no GOP wants.

      My fingers are crossed-I've been waiting patiently for the full ACA to begin. I've had no medical insurance for more than a decade. Now in my mid 50's, this is a scary event every day.

      YES WE DID! November 4th, 2008

      by Esjaydee on Sun Jun 24, 2012 at 10:49:59 AM PDT

      [ Parent ]

      •  From which political contingent in the US today (1+ / 0-)
        Recommended by:
        Esjaydee

        is the single-payer option going to come?  Are you joking?  
        why did we get the ACA structure and not single-payer in the first place?  The Dems certainly aren't going to take us there.

        •  If for profit insurance companies (0+ / 0-)

          go out of business due to the 'death spiral' that they so direly predict without the mandate, what other option is there?

          (Personally, I think the industry will survive fine without the mandate, provided the federal subsidizes stay intact)

          YES WE DID! November 4th, 2008

          by Esjaydee on Sun Jun 24, 2012 at 11:37:10 AM PDT

          [ Parent ]

  •  Thanks Adam for spelling this out (2+ / 0-)
    Recommended by:
    Mayfly, ozsea1

    for we laypeople.  I do see them striking down the mandate.  Little these people do seem to be in the best interest of the common people.

      I do not want my little thank you notice from this administration to become worthless for our supporting the ACA.  

    We the People have to make a difference and the Change.....Just do it ! Be part of helping us build a veteran community online. United Veterans of America

    by Vetwife on Sun Jun 24, 2012 at 06:34:03 AM PDT

  •  Is There Anything the RW Believes in Mandating (4+ / 0-)
    Recommended by:
    J M F, Mayfly, ozsea1, wsexson

    as they advance privatization, that might cause the justices to hesitate in striking down this instance?

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Sun Jun 24, 2012 at 06:42:08 AM PDT

    •  Let's privatize the Supreme Court... (0+ / 0-)

      we can substitute some kind of Mickey Mouse private mediation service with some rent-a-justice option.  Take away their perks and benefits, let them pay their own overhead from the fees they collect.

  •  Upheld or not, (16+ / 0-)

    I think everyone can now see what a terrible political and policy clusterfuck the healthcare law was. And the things we've gained from it we probably could have gained without such a massive crisis for the Democratic majority.

    If the entire law is struck down, then Democrats needs to simply move to the solution we all know works and is clearly and obviously constitutional. And stick with it until we get it.

  •  Thanks very much for this clear, concise (3+ / 0-)
    Recommended by:
    davidincleveland, Mayfly, ozsea1

    explanation, Adam.  Your diary is just what this old lady needed to understand all of the possibilities.

    Mother Teresa: "If we have no peace, it is because we have forgotten that we belong to each other."

    by Amber6541 on Sun Jun 24, 2012 at 06:47:36 AM PDT

  •  No matter what they rule there will be blowback (5+ / 0-)

    against the SCOTUS.  The difference is that if Obama loses progressives will scream and seek solutions, whereas if Obama wins Teapublicans will scream and issue death threats to the justices.

    Then they came for me - and by that time there was nobody left to speak up.

    by DefendOurConstitution on Sun Jun 24, 2012 at 06:54:51 AM PDT

  •  I am just (5+ / 0-)
    Recommended by:
    Lying eyes, Jerry J, Mayfly, Esjaydee, VClib

    confused about how guaranteed issue could survive if the mandate is struck down.  Without the "everybody in" pool, will insurance companies simply charge tens of thousands a month for anyone who's had athletes foot or a sinus infection and make "guaranteed issue" nonsense via price?

    http://www.youtube.com/watch?v=25hef8mb0SQ&feature=youtu.be

    by KibbutzAmiad on Sun Jun 24, 2012 at 06:58:31 AM PDT

    •  I wonder if Congress could fix (1+ / 0-)
      Recommended by:
      ferg

      this by adding a tax that you had to pay if you didn't have insurance, and that tax would give you access to, say, basic Medicare or Medicaid coverage...sort of a public option with automatic enrollment for people without alternative private health coverage.

      Skepticism of all the elite institutions, not trust, is what required for successful leadership in this era. Digby

      by coral on Sun Jun 24, 2012 at 09:24:38 AM PDT

      [ Parent ]

    •  This note from the Kaiser foundation (0+ / 0-)

      sort of refutes that premise.

      With the federal subsidies people who couldn't afford insurance will jump at the chance to be insured. (I'm one of them).

      Kaiser Family foundation on mandate

      YES WE DID! November 4th, 2008

      by Esjaydee on Sun Jun 24, 2012 at 10:58:24 AM PDT

      [ Parent ]

  •  So, worst case scenario (1+ / 0-)
    Recommended by:
    coral

    we lose ACA in its entirety, and suddenly discover that Medicare is unconstitutional?

    Barack Obama is not a secret Marxist class warrior who wants to redistribute wealth in America. But I'll still vote for him, anyway.

    by looty on Sun Jun 24, 2012 at 07:00:08 AM PDT

    •  Medicare unconstitutional? (1+ / 0-)
      Recommended by:
      coral

      you pose an excellent question that I have asked before.
      Have seen no explanation that I can understand.

      •  It's quite simple (1+ / 0-)
        Recommended by:
        grover

        there is no question that the government has the authority to impose income taxes and provide services.  A constitutional amendment was passed to allow the Federal government to collect income taxes.  They are also forbidden in the Constitution from charging a flat tax (a set amount) directly to individuals.  That is called a capitation tax.  

        That is why Medicare and Social Security are not flat fees, but a percentage of your income.  It is also why the mandate penalty is expressed as a penalty and not a tax, because the government is not allowed to charge a capitation tax.

        So those programs have no connection to requiring citizens to pay, regardless of income (except for the poor), a commercial price to a private company.

  •  Wall St. Journal's Take: (7+ / 0-)
    Scenario #2: The insurance mandate is struck down, but the entire rest of law stays.

    This was the ruling of a federal appeals court in Atlanta last year, and the Supreme Court may choose to uphold it. In this scenario, the high court would conclude that Congress exceeded its powers with the requirement to carry insurance or pay a penalty. But it would judge that provision separable from the rest of the law.

    This would be the worst-case scenario for insurance companies and set off a scramble for the Obama administration and supporters of the law to prove that it could still work. Unless Congress took further action, insurers would be required accept all customers starting in 2014–even those who are already sick–without imposing surcharges for pre-existing medical conditions. At the same time, the court’s ruling would mean people wouldn’t be required to carry health coverage. Insurers say that would lead to chaos in the market as people waited until they were sick to sign up for policies.

    Politically, a ruling under this scenario would vindicate critics who called the Patient Protection and Affordable Care Act’s insurance mandate an unprecedented overreach of federal power. Mr. Obama would face an election in a little more than four months with the nation knowing that a core part of the law he signed in March 2010 was found to violate the Constitution.

    Republicans would push ahead with plans to repeal the remainder of the law. Some Democratic supporters have argued that ways could be found to substitute for the mandate, perhaps through federal rule-making or state action. And Mr. Obama would be able to campaign on the law’s surviving consumer-friendly provisions.

    Operative phrase: "This would be the worst-case scenario for insurance companies..."

    Given the SCOTUS is pro corporate most of the time, I don't see them doing anything which ends up being the worst case scenario for the insurance industry.

    "A civilization which does not provide young people with a way to earn a living is pretty poor". Eleanor Roosevelt

    by Superpole on Sun Jun 24, 2012 at 07:04:00 AM PDT

  •  Five / Four, it all falls down. They Hate. n/t (0+ / 0-)

    "But Brandine, you're supposed to be in Iraq stopping 911!"

    by leftyguitarist on Sun Jun 24, 2012 at 07:16:33 AM PDT

  •  Very confusing (5+ / 0-)
    Recommended by:
    Mayfly, Brown Thrasher, ozsea1, ferg, wsexson

    But since the individual mandate is a conservative idea, if the Court rejects it, after much partisan gloating, the GOP will have very little left to offer in terms of health care reform. The Court will have taken the linchpin of their model away from them. And since the current system is untenable and there really are only a few other ideas in the known universe: some form of single payer or a public option, Wouldn't a ruling that rejects the mandate be a good thing?

    •  Rp, that's what I was wondering. nt (0+ / 0-)

      "...it's difficult to imagine what else Republicans can do to drive women away in 2012, unless they decide to bring back witch-hanging. And I wouldn't put it past them." James Wolcott

      by Mayfly on Sun Jun 24, 2012 at 07:54:47 AM PDT

      [ Parent ]

    •  I doubt that could be enacted (3+ / 0-)
      Recommended by:
      Brown Thrasher, ozsea1, ferg

      within the next two decades or so. Everytime we've lost on universal coverage, the proposals keep getting worse and only come up many decades later. Clinton's proposals in the 1990s, for example, were convoluted, but actually better than ACA.

      Skepticism of all the elite institutions, not trust, is what required for successful leadership in this era. Digby

      by coral on Sun Jun 24, 2012 at 09:27:30 AM PDT

      [ Parent ]

  •  This is all so bizarre to me (11+ / 0-)

    ACA imposes an annual penalty of $95, or up to 1% of income, whichever is greater, on individuals who do not secure insurance; this will rise to $695, or 2.5% of income, by 2016. This is an individual limit; families have a limit of $2,085.

    The tax is not big enough to really be coercive. People (particularly young people) who cannot or do not want to pay for insurance will pay the tax instead without being dramatically harmed. That's not really a mandate.

    I am a tax lawyer. The idea that a tax (that's what IRC s. 5000A is) you don't have to pay if you have health insurance could be unconstitutional boggles my mind. It seems like we are here today, expecting big chunks of the ACA to be invalidated, because the administration was not willing to admit that the so-called mandate is a tax that technically brakes Obama's campaign promise not to raise taxes on anyone making less than $200k. All the way up to and through oral arguments, the government refused to acknowledge that the penalty is a tax and then articulate an appropriate argument on that basis. The tax code has been used in thousands of ways by Congress to encourage people to engage in economic transactions with other private parties. The 'mandate' is not substantially different from these other Code provisions. I'll be very curious to see how the distinction is drawn by the conservative justices.
     

    •  interesting coincidence (0+ / 0-)

      The 2.5% "penalty" for me happens to be about what 2 months' premium will be for me at the lowest level of coverage. (a little over $1000) However, That "lowest coverage" premium would also just happen to be about $6000 a year - the same as the subsidy.
      However, as uninsured I pay about $700 a year on health care,(from a clinic that provides much better care than the HMO that provides the "lowest level" coverage)  and thanks to the fact that I've saved that $5300 a year rather than spending it I have over $150,000 in home equity. If I were forced to pay a $150,000 medical bill by drawing on that equity the mortgage payment would still be less than an insurance premium would be.
      Except that with the subsidy the government would borrow the money to pay that premium rather than me.
      Bottom line for me - under the ACA I save less than $700 a year (unless I have a major bill and survive) but my children (who in my case do not exist - therefore your children) will lose $6000 a year for the next 9 1/2 years plus interest.(assuming I survive until Medicare) And I will get poorer care or pay a higher premium for access to the better doctors I have now.

    •  As a tax lawyer, you should also know that (1+ / 0-)
      Recommended by:
      grover

      the penalty cannot be a tax, as it would then be a direct capitation tax (the same amount charged to everyone, and rich people paying an extra income tax on top), which is unconstitutional.

      Article I, Section 9, Clause 4:

      No Capitation, or other direct, Tax shall be laid, unless in proportion to the Census or Enumeration herein before directed to be taken.
      I do agree that it would be much cheaper to pay the penalty than buy insurance if you are healthy.
      •  I disagree. (1+ / 0-)
        Recommended by:
        Stroszek

        Take a look at s. 5000A(e). Plenty of exemptions. It's not a capitation as defined by Hylton v. US.

        The penalty under s. 5000A is not a tax on property, and its imposition is contingent upon numerous factors, including income and the way an individual finances health care, i.e., a particular use of property, see Bromley v. McCaughn. Therefore it is not prohibited by Art I.9.4.

  •  If you know anyone still on the fence (13+ / 0-)

    explain to him or her about the Court.  

    Ginsburg -- age 79
    Scalia -- age 76
    Kennedy -- age 75
    Breyer -- age 73
    Thomas -- age 64
    Alito -- Age 62
    Sotomayor -- Age 57
    Roberts -- age 57
    Kagan -- age 52

    If Romney is elected and Ginsburg can't hold on (she has a history of cancer), then we are looking at a 6-3 conservative majority for a generation.  Scalia and Kennedy could retire and would probably be replaced by 50-something Federalist Society types.  This would be an incredibly bad thing for the nation.

    Every time a 5-4 decision is announced, it makes me sick to my stomach.  We do not have an arbiter of constitutionality, but rather a Republican legislative body with a 5-4 majority.  If anyone had any doubts about that then the Union Dues case earlier this week should disabuse him or her of that quaint notion.  When the Court issues a broad proclamation on a topic that was neither a part of the case nor briefed before the Court, it is clear that it is intent on carrying GOP water.  Article III is falling by the wayside.

    I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

    by ccyd on Sun Jun 24, 2012 at 07:18:24 AM PDT

    •  and Article I Setion 8 (0+ / 0-)
      To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and  or in all other powers vested by this Constitution in the government of the United States,any department or officer thereof.
  •  I believe the 5 conservative justices will vote (2+ / 0-)
    Recommended by:
    Mayfly, helfenburg

    as they are paid to...the ACA will fall ,as will the medicare expansions...and the GOP will crow about "another victory".

    I have zero respect for the Roberts court, and I would be quite astounded to find the Chief Justice trying to "preserve" any remainder of Mr. Obama's work.

    mark

    Retired AFSCME Steward and licensed gun carrying progressive veteran.

    by old mark on Sun Jun 24, 2012 at 07:25:16 AM PDT

  •  with five votes (5+ / 0-)

    they can steal a presidential election, ensure the court remains extremist and overreaching activist, and change one person one vote to one dollar one vote, thus turning democracy and republic into comstitutional oligarchy.

    The cold passion for truth hunts in no pack. -Robinson Jeffers

    by Laurence Lewis on Sun Jun 24, 2012 at 07:25:58 AM PDT

  •  I shouldn't comment, but I will anyway. (3+ / 0-)
    Recommended by:
    Mayfly, perkinwarbek, ozsea1

    I'm sure I don't know enough to comment on the Supreme Courts' commerce clause considerations in making their decision, even though this decision almost certainly affects me. That is, unless I drop dead.
    I don't really see what the big deal about the mandate is, at least, the validity of the argument against it. In my everyday life, I'm already forced to pay private companies all the time. I pay a private company for auto insurance, which I'm required to have by law, because it's obviously in the community interest that we share an individual responsibility for each other. When I put gas into my car, I'm buying a product from a 'private company' subsidized by the government, just like the health care industry. I eat groceries delivered by truck to my town. Even if I didn't drive, I pay a federal gas tax when I eat.
    I'm sure there are legalities about the commerce clause I'd have to determinedly study to grasp the opposing arguments. I probably won't, because, in an overarching sense, I haven't read a solution to curtailing skyrocketing health care costs that doesn't include a mandated shared responsibility.

    •  Have you ever paid taxes... (4+ / 0-)
      Recommended by:
      willrob, Brown Thrasher, guinea, VClib

      on something you didn't buy?  Using your gasoline example, imagine a law that imposed a Gas Mandate.  You have to purchase X gallons of gasoline every year or pay a $700 tax.  Do you think that would be constitutional?

      •  I pay a sales tax to fund new roads to places I (0+ / 0-)

        never go.  The existing roads are adequate to carry commerce. My observation is that the new roads mainly benefit developers.

        "...it's difficult to imagine what else Republicans can do to drive women away in 2012, unless they decide to bring back witch-hanging. And I wouldn't put it past them." James Wolcott

        by Mayfly on Sun Jun 24, 2012 at 08:01:56 AM PDT

        [ Parent ]

      •  That's a good answer. (0+ / 0-)

        I'd say I pay taxes for things indirectly I didn't 'buy' and  never see all the time. Of course you're right, in your direct "either or" example; that's where the consternation is.

      •  You don't ahve to buy it. You pay a fine if you (0+ / 0-)

        don't "have" insurance.  Only people who don't have it and refuse to purchase it will pay the fine.  So, you don't want it?  Don't buy it.  Pay the fine.  It's no different than mandatory auto insurance that has been tolerated for decades.  And don't tell me that mandatory auto ins. is OK because it's done by the states and not the feds, because it doesn't make any legal difference.  Also do not tell me it's not the same because you don't have to buy a car.  In most parts of the US you do have to have a car if you want to travel around at all and no one ever didn't buy a car because they'd have to get insurance for it.

        •  This shows a profound misunderstanding of (2+ / 0-)
          Recommended by:
          Catesby, VClib

          the federal constitution.

          And don't tell me that mandatory auto ins. is OK because it's done by the states and not the feds, because it doesn't make any legal difference.
          The federal government is a government of enumerated powers.  The state governments have plenary powers.  There is a huge legal difference.  To say "it doesn't make any legal difference" just shows a lack of any basic understanding of the difference.

          See my comment below, "States have powers . . ."

        •  Auto insurance is not mandatory n/t (0+ / 0-)
        •  heifenburg - "don't tell me" (0+ / 0-)

          What don't tell you the facts? Here are the differences between auto insurance and the ACA.

          1. States have plenary powers and the US federal government doesn't. That means that it is much easier for states to issue mandates, even for health insurance such as Massachusetts.

          2. States require auto insurance only from car owners, which isn't universal.

          3. Mandated auto insurance does not cover you or your car (you can buy it if you want, but it's not mandated).

          4. Mandated auto insurance provides coverage in case you injure someone or damage property. The policy is liability insurance to provide damages should your negligence result in a judgement against you.

          The key is that mandated auto insurance does not insure you or your car, it insures your negligence and provides a source of funds should you injure someone else or damage their property.

          "let's talk about that"

          by VClib on Sun Jun 24, 2012 at 11:59:27 PM PDT

          [ Parent ]

      •  Yes. (0+ / 0-)

        I pay property taxes and for school bonds and school levies. No kids, never had them. Never will.

        My community has a specific designated tax for our 3 parks/woodlands. I'm certain that many of our citizens have never stepped foot in any of them.

        We pay taxes for things we don't use all the time.

        © grover


        So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

        by grover on Sun Jun 24, 2012 at 03:18:02 PM PDT

        [ Parent ]

  •  #4 and the dissents (1+ / 0-)
    Recommended by:
    Mayfly

    Read Scalia and Thomas' arguments even if, as is likely on #4, they are dissents.    If they argue that Medicaid is unconstitutional, then Mr. Romney is going to have a hard time explaining why he would prefer judges like them....

  •  to bad (0+ / 0-)

    There is no real mechanism to challenge the court on its own constitutionality. That is to say the court is acting purely on behalf of one party's whims.

    •  I guess the presidential elections are our only (2+ / 0-)
      Recommended by:
      Brown Thrasher, KingTag

      way of nudging the court back to reasonableness--and Citizens United has tilted the playing field.

      "...it's difficult to imagine what else Republicans can do to drive women away in 2012, unless they decide to bring back witch-hanging. And I wouldn't put it past them." James Wolcott

      by Mayfly on Sun Jun 24, 2012 at 08:04:43 AM PDT

      [ Parent ]

  •  As far as im'm concerned (4+ / 0-)
    Recommended by:
    princesspat, coral, ozsea1, Danali

    this and Armando's analysis are the only ones worth reading.

    Thanks!

    In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, comes wisdom through the awful grace of God ~RFK

    by vcmvo2 on Sun Jun 24, 2012 at 07:44:05 AM PDT

  •  if they decide (1+ / 0-)
    Recommended by:
    Mayfly

    that the government cannot force individuals to buy anything, expect other law suits to ensue, such as states demanding citizens must buy car insurance.  I am sure there are other things as well.  It is going to open a can of worms like no one has ever seen.

  •  If Any Part Of ACA Is Overturned By This (0+ / 0-)

    republican dominated SCOTUS we should go to war.  I will be so pissed I will never ever get over it.  There is much historical precedent for the madate to be constitutional it ain't funny.  If any democrat has bought the shit that the mandate isn't contitutional than you are hopeless.  Every one of us democrats should go to war against the SCOTUS.  President Obama was right, and the SCOTUS is WRONG.  And we need to start bucking up and letting people know.

    "Don't Let Them Catch You With Your Eyes Closed"

    by rssrai on Sun Jun 24, 2012 at 08:03:32 AM PDT

  •  Would the tax ruling be novel? (1+ / 0-)
    Recommended by:
    ferg

    One pro-mandate argument is that this is all just a tax.  The con side is that in order to be a tax, congress must declare it's intention to be taxing.  This seems oddish to me and I'm wondering if that would be novel.  

  •  Was the fundamental flaw of the law (2+ / 0-)
    Recommended by:
    coral, Brown Thrasher

    the penalizing of not buying the mandate?  Could they have built in an out clause, by which people not purchasing mandated insurance would be taxed for government medicare and not called it a penalty?

    “I freed a thousand slaves. I could have freed a thousand more if only they knew they were slaves.” - Harriet Tubman

    by Publius2008 on Sun Jun 24, 2012 at 08:50:42 AM PDT

    •  If they had called it a "tax," (10+ / 0-)

      It would have been constitutional. But they didn't want to have to claim they were raising taxes.

      •  That may be the fear that we need to (2+ / 0-)
        Recommended by:
        Brown Thrasher, ozsea1

        get over: that everything that govt does is bad.

        I think what people hate about taxes are that they do not know where the money goes and that it is efficiently and well spent.  Seems to me a framework that assures close oversight of how money is spent along with a showing that single payer actually makes much more financial sense might convince people.  

        “I freed a thousand slaves. I could have freed a thousand more if only they knew they were slaves.” - Harriet Tubman

        by Publius2008 on Sun Jun 24, 2012 at 09:25:15 AM PDT

        [ Parent ]

      •  What does it matter what they (2+ / 0-)
        Recommended by:
        Brown Thrasher, ferg

        "call it"? Doesn't it function as a tax anyway?

        I'm a dyslexic agnostic insomniac. I lie awake at night wondering if there's a dog.

        by rennert on Sun Jun 24, 2012 at 09:27:19 AM PDT

        [ Parent ]

        •  Not really ... (2+ / 0-)
          Recommended by:
          wsexson, VClib

          ... insofar as its purpose is not to raise revenues.  As Ginsburg said in oral argument,  “This is not a revenue-raising measure because if it is successful, nobody will pay the penalty, and there will be no revenue to raise.”

          •  I don't really get that argument (0+ / 0-)

            It could be seen as raising revenue to cover the subsidies and increased costs of insurance caused by people not being "in the pool". If everyone's insured, the revenue-raising is not needed. But that doesn't mean it's not revenue-raising when it's being collected.

            I'm a dyslexic agnostic insomniac. I lie awake at night wondering if there's a dog.

            by rennert on Sun Jun 24, 2012 at 10:09:03 AM PDT

            [ Parent ]

            •  What Ginsburg meant (2+ / 0-)
              Recommended by:
              Adam B, VClib

              is that the main purpose is to coerce conduct, not to raise revenue.  That's one big difference between a penalty and a tax.

              Both may have some incidental effects -- a penalty may raise revenues, and a tax may deter or coerce conduct.  But the primary purpose of a penalty is to deter or coerce conduct, and the revenue part is incidental.  What Ginsburg pointed out is that if NOBODY pays the penalty -- and there is NO revenue raised -- that provision will be considered successful and to have worked as intended, i.e., to coerce people into buying insurance.   That's because its primary purpose was to affect conduct.  If its primary purpose had been to raise revenue -- i.e., a tax -- then if everybody buys insurance, that provisions will have failed, because it doesn't raise much revenue.  

          •  That is what was said in oral args. (1+ / 0-)
            Recommended by:
            rennert

            But look at the size of the penalty: it is too small to be coercive... a significant number of people will be assessed the penalty (and some will pay). That much is nearly certain as a factual matter. So it will raise some revenue and it is in the excise tax part of the IRC, and one of the functions of the penalty is to raise revenue.

            It's strange to me that the function v. purpose distinction matters. It would be cleaner to look at the text of the law and the likely real-world result (the function), rather than ask what purpose was in the heart of the legislators.

        •  That was my understanding. (1+ / 0-)
          Recommended by:
          jdsnebraska

          The Court has held up laws as supported by 'the taxing power' even if they weren't labeled as a tax, or so I've read.

          I am proud to be a Contributor at Courage Campaign Institute's Prop8TrialTracker.com
          @indiemcemopants on Twitter

          by Scottie Thomaston on Sun Jun 24, 2012 at 10:04:50 AM PDT

          [ Parent ]

      •  No it wouldn't Adam (0+ / 0-)

        Article I, Section 9, Clause 4:

        No Capitation, or other direct, Tax shall be laid, unless in proportion to the Census or Enumeration herein before directed to be taken.
        The penalty is a flat amount, charged directly to all residents.  A clear example of a direct capitation tax banned by the Constitution.

        It also happens to have an income tax portion laid on top if you make over a certain amount, but the base amount is charged to everyone.

  •  This will be the end of America (0+ / 0-)

    as you know it.

    Do not expect anything less.

  •  I'll be glad when this is over (1+ / 0-)
    Recommended by:
    ozsea1

    The truth is that SCOTUS will decide what it wants to decide. And that is whatever serves the following issues - 1 whatever serves the 1500 people who control the US (aka the 1%) - 2 whatever does President Obama the most harm and - 3 best serves the image of the Justices.

    "option 1" (striking down ACA entirely) Is the status quo better for the 1500 or can they game the ACA and profit from it? (for my opinion see below) Will that anger the proponents or rally the opponents? Will this SCOTUS go down in history as "saviors of liberty" or as partisan tools?

    "option 2" (striking down the mandate only) The Administration is right; this will make the ACA unworkable. It will have to be repealed before it is implemented fully - by its supporters - but not until after the 2012 elections. So, will the electorate care in time? and will they blame the President or SCOTUS?

    "option 3" (upholding ACA) The present situation is that insurance companies determine how much we spend on health care (they pay or refuse to pay the bills) ACA will change that. Under ACA insurance companies will be allowed to charge their rate payers no more than (and therefore exactly) 133% of how much they pay the health care providers (doctors and hospitals) Therefore doctors will determine total health care spending. (insurers will not deny coverage because that would lower their profits, therefore all bills will be paid) In addition, rate payers will receive an up to $6000 per taxpayer subsidy. Since doctors' bills will not be regulated their total bills will be at least what they are now, plus the subsidy. Ultimately the question is - present total spending is $2.6 trillion, insurance profit is 30% ($860 billion) - after ACA total spending will be $3.2 trillion and industry profits will be $800 billion. (plus the additional profits the 1% will make renting office space, charging more for malpractice insurance, etc. ) Businesses will also save up to $600 billion by claiming that the subsidy allows them to drop their employee plans.
    At this point it looks like the math is in favor of the 1% allowing ACA to stand. However, the 1% are fascists, not capitalists. Their goal is power over people, not profits. Upholding the ACA will increase government power over citizens, but mostly symbolically, and more practically it will make the President look good in an election year, and even if I'm right about the eventual costs that can be papered over by borrowing - it might take years before the deficits catch up to us, and who knows, we might use a few years of what looks like an effective policy to restore confidence in good government and elect honest leaders. I believe that most fascists do not have the courage (faith in the power of evil) to take that risk. Even if the ACA does fail catastrophically it is still possible that the 1% will get the blame.

  •  ACA is a good law? (0+ / 0-)

    If many prgressives think ACA is a good law and it gets struck down, why don't the Blue states just enact their version of Romney care. New york, California, Connecticut, with Democratic governors can enact the law similar to Mass. It seems that Romney care is popular in Mass.
    The addition of the above states is about 20% of the poulation of the United States. Heck throw in Oregon and Washington state. Unless theses states have better ideas, the Mass plan seems solid.

    •  Romneycare is (2+ / 0-)
      Recommended by:
      guinea, VClib

      under extreme financial pressure in Massachusetts.  Nearly every doctor knows this.

      Without a federal bailout, Romneycare will undoubtedly fail in Mass.

      from wikipedia:

      In 2012, the Blue Cross Foundation of Massachusetts funded and released in April research that showed that the 2006 law and its subsequent amendments -- simply in terms of measuring the state-budget effect on the uncompensated care pool and funding subsidized insurance (see Background section above) had cost approximately $2 billion in fiscal year 2011 vs approximtely $1 billion in fiscal year 2006. Some of this doubling in cost was funded by temporary grants and waivers from the United States federal government.
      You can read more.  The Mass. legislature is currently trying to pass a Romneycare bail out bill....
    •  California and Illinois are billions in the red (2+ / 0-)
      Recommended by:
      Slightly Wobbly, VClib

      I'm a physician in Illinois and we haven't been paid by Illinois Medicaid for services provided a year ago.  Medicaid already pays peanuts ($14 for a physical, $150 for a gallbladder removal), and now in Illinois it's not paying anything to us.  The state is completely broke.  My  overhead doesn't go down just because I see a Medicaid patient for free.

      Come back to reality, please.

      Massachusetts is one of the top 3 richest, thinnest and most educated states in the country.  If it's struggling there, it's not going to work for the vast majority of states in the US.  

      •  The Federal government kicks in a large amount (0+ / 0-)

        For Medicaid in the law. 100% at first, with it never going down much.

        Blame your state for not allocating funds for it. They are obviously stealing the money for other things.

        Women create the entire labor force.

        by splashy on Sun Jun 24, 2012 at 04:27:35 PM PDT

        [ Parent ]

    •  Do you know who wanted Romneycare (0+ / 0-)

      for California? Schwarzenegger.

      I also don't think that there is any reason to expect that type of health insurance reform would work in CA. We have a much larger uninsured problem than MA ever did.

  •  Maybe we need a disaster -- a REALLY BIG ONE (1+ / 0-)
    Recommended by:
    indie17

    I'm 67 -- born 1944 in a poor rural SW Mississippi county.  

    My parents' generation went through the Great Depression and WW II.  My grandparents' generation -- born in the 1890's -- went through the post-Civil War South.  Every one of them was an FDR Democrat because FDR brought electricity to their poor, rural county.

    As a result of growing up surrounded by deprivation and poverty, my parents and grandparents were frugal people who squeezed every penny until Lincoln cried for mercy.  They also were deeply committed to community -- they knew that everyone else, white and black, were struggling just as they were.   They knew if everyone pulled together and helped each other at least they'd survive.

    Maybe I'm too ignorant to understand where we're headed, but, recently I've been thinking that maybe we need another Great Depression.  Trash the health care act.  Reduce taxes on the wealthy.  Tear down every bit of social and economic justice that has been put in place since the 1930's.  Poison the water and air and drill every square foot of the USofA.  Let a generation grow up struggling with no job protection, no minimum wage, no health care, crammed into a tiny home with two or three generations under the same roof -- no Social Security or Medicare for the old folks -- like the good ol' days.

    After the Great Depression the GOP became  a permanent minority for most of a century.  Another Great Depression would be a steep price to pay to finally put the GOP in their grave, but, maybe we'll have to pay it.  

  •  InTrade (2+ / 0-)
    Recommended by:
    nieman, splashy

    Isn't Intrade just a poll, and not a predictor? What I've seen of it so far seems to indicate that it reflects only the current state of mind and is useless as a predictor.

    E Pluribus Unum does NOT mean "every man for himself"

    by Daddy Love on Sun Jun 24, 2012 at 10:54:45 AM PDT

  •  What about the 9.5% cap (0+ / 0-)

    on out of pocket costs?

    I've not seen this addressed in all these scenarios if the mandate fails.

    Will this still be part of the plan?

    Even if  only the mandate falls, subsidies will still go forward and the other parts of the law.

    One being, the cap on out of pocket costs to consumers.

    In my case, I'll jump at the opportunity to buy insurance since my family will be subsidized at 85% of the premiums total cost. Current quote for family insurance was $1200 a month with a high deductible.

    According to the Kaiser calculator, our 'silver plan' premium would cost us $2526 a year on  a plan that is projected to cost $19,750 a year. With a subsidy of more than $17,000 you can bet your butt we WILL PURCHASE insurance.

    Since cost of premiums being the main barrier for those without insurance, I just cannot see people NOT opting in to buy it- especially since it is so generously subsidized.

    YES WE DID! November 4th, 2008

    by Esjaydee on Sun Jun 24, 2012 at 11:20:29 AM PDT

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