SCOTUS & ObamaCare

[MachineGhost]

It may not seem like it at first glance, but the Supreme Court decision upholding the individual mandate provision of ObamaCare is a victory.  They struck down the batshit insane rational as expressed by the dissenting views:

Justice  Ginsburg,  was joined by Justices  Sotomayor, Justice  Breyer, and Justice Kagan in part dissenting. She wrote: “I would hold, alternatively, that the Commerce Clause authorizes Congress to enact the minimum coverage provision.  I would also hold that the Spending Clause permits the Medicaid expansion exactly as Congress enacted it.”?

So the individual mandate was upheld under the taxing clause, that the Obama administration argued against, instead of the commerce clause, which would have opened the flood gates to every social engineer's wet dream and overturned centuries of contract law.

While I would have preferred the individual mandate to be stricken down and some of the other parts relating to insurance denialability upheld, this is the best possible outcome when trying to please everyone.

I am, however, disgusted at conservative Roberts anti-conservative, pivotal vote and his copout that the Judicial branch does not have a responsibility of judicial engagement.  What the heck is the point of a Supreme Court if they do not hold the Legislative and Executive branches to account?   When are judges going to grow a pair?

[Xan]

It's certainly nice that some sanity has been applied to the Commerce Clause for once, no doubt about that.  But couldn't the social engineers you mention simply use the taxing power, exactly as demonstrated here, to do whatever they would have via Commerce?

Maybe it would be more difficult to achieve politically, but if anyone can be taxed at arbitrary levels for doing or not doing whatever displeases our rulers, then there really isn't much of a limitation of power.

I suppose it's easier to repeal a relatively recent amendment (the 16th) than to repeal (or clarify, perhaps) an original clause like Commerce.

[MachineGhost]

It's certainly nice that some sanity has been applied to the Commerce Clause for once, no doubt about that.  But couldn't the social engineers you mention simply use the taxing power, exactly as demonstrated here, to do whatever they would have via Commerce?

True, Congress is now going to unconstitutionally legislate behavior by using coercive taxes to enforce what they deem prudent, i.e. the Twinkie Tax.  So it seems like it was a hollow victory.  Out of the frying pan and into the fire.

I wouldn't hold my breath on Republicans being able to kill it legislation-wise, but the legal precedent for this unprecedented expansion in Federal power has already been set.  It will be exploited by the social engineering dogooders.

There's no stopping proverbial Rome's disgusting collapse now.  I do find it interesting that the very last to go is always reason and justice for the sake of political expediency.

[cabronjames]

afaict the RATS cabal (Roberts Alito Scalia Thomas) do not judge by some consistent Constitutional principles, as they interpret the Constitution.  Instead, they are mere Plutocrat Whores, & reverse-engineer whatever legal language needed to attempt to justify their whoredom.

For example, does the states' right principle help some Plutocratic 1%er faction?  Ok, then they're for states' rights.  Oh but in another case states' rights hurts a Plutocratic faction.  Ok now they're anti-states rights.  Also Roberts is such a nice guy, has a nice family, his ex-coworkers enjoyed working with him, & has a very high IQ.  They hope that distracts folks from Roberts' Plutocrat Whoredom (seems to be effective so far)
 
otoh someone like Ron Paul seems to be mostly consistent/honest in following the Constitution, as he interprets it.  I can respect a principled person like that, even when I disagree with them.

[MediumTex]

afaict the RATS cabal (Roberts Alito Scalia Thomas) do not judge by some consistent Constitutional principles, as they interpret the Constitution.  Instead, they are mere Plutocrat Whores, & reverse-engineer whatever legal language needed to attempt to justify their whoredom.

For example, does the states' right principle help some Plutocratic 1%er faction?  Ok, then they're for states' rights.  Oh but in another case states' rights hurts a Plutocratic faction.  Ok now they're anti-states rights.  Also Roberts is such a nice guy, has a nice family, his ex-coworkers enjoyed working with him, & has a very high IQ.  They hope that distracts folks from Roberts' Plutocrat Whoredom (seems to be effective so far)
 
otoh someone like Ron Paul seems to be mostly consistent/honest in following the Constitution, as he interprets it.  I can respect a principled person like that, even when I disagree with them.

I've always thought Scalia was some kind of idiot-savant.  He's like Dustin Hoffman's character in Rain Main, except rather than talking about his underwear and Peoples Court, he talks about state's rights and being Italian.

Roberts does seem like a smart and decent guy whatever you think about today's decision.

[Pointedstick]

I've just gotten to the end of Ginsburg's dissent, and among many other shocking passages, these take the cake for me:

As an example of the type of regulation he fears, THE CHIEF JUSTICE cites a Government mandate to purchase green vegetables. Ante, at 22–23. One could call this concern “the broccoli horrible.”? Congress, THE CHIEF JUSTICE posits, might adopt such a mandate, reasoning that an individual’s failure to eat a healthy diet, like the failure to purchase health insurance, imposes costs on others. See ibid.

Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.9 Such “pil[ing of] inference upon inference”? is just what the Court re­ fused to do in Lopez and Morrison.

Soooo… Roberts' argument is spurious because he doesn't get close enough to congress's actual power? In pooh-poohing his example, Ginsburg reveals that the power she believes Congress constitutionally wields is not the power to make people buy broccoli, but the power to actually make them eat it. Don't believe me? From a footnote:

9 The failure to purchase vegetables in THE CHIEF JUSTICE’s hypothet­ ical, then, is not what leads to higher health-care costs for others; rather, it is the failure of individuals to maintain a healthy diet, and the resulting obesity, that creates the cost-shifting problem. See ante, at 22–23. Requiring individuals to purchase vegetables is thus several steps removed from solving the problem. The failure to obtain health insurance, by contrast, is the immediate cause of the cost-shifting Congress sought to address through the ACA. See supra, at 5–7. Requiring individuals to obtain insurance attacks the source of the problem directly, in a single step.

Then there's this zinger:

Supplementing these legal restraints is a formidable check on congressional power: the democratic process. See Raich, 545 U. S., at 33; Wickard, 317 U. S., at 120 (repeat­ ing Chief Justice Marshall’s “warning that effective re­ straints on [the commerce power’s] exercise must proceed from political rather than judicial processes”? (citing Gib- bons v. Ogden, 9 Wheat. 1, 197 (1824)). As the controversy surrounding the passage of the Affordable Care Act at­ tests, purchase mandates are likely to engender political resistance. This prospect is borne out by the behavior of state legislators. Despite their possession of unquestioned authority to impose mandates, state governments have rarely done so. See Hall, Commerce Clause Challenges to Health Care Reform, 159 U. Pa. L. Rev. 1825, 1838 (2011).

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],”? Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetar­ ian state as a credible reason to deny Congress the author­ ity ever to ban the possession and sale of goods.

What then, I would ask, is the point of even having a judicial branch? If congress is basically reasonable and trustworthy, and its excesses can be curbed by an angry electorate, what role does that leave for judicial review?

It's amazing that this woman considers herself a liberal. Her dissent is an incredibly illiberal paean to intrusive federal power over its citizens. The cases she cites are almost universally the likes of Wickard, Raich, and other ones where the court upheld federal power to intrude into the lives of nonviolent individuals to confiscate their land or money, or throw them in jail for ordering their private affairs in a different manner from how congress dictated.

[Storm]

Wow, it kind of makes me wonder if the justices just put this stuff in there to see if anyone is actually reading or not:

As the controversy surrounding the passage of the Affordable Care Act at­ tests,

Doesn't she mean attests, rather than "at tests"?  I'm a bit surprised that a supreme court justice doesn't understand grammar.

Sorry that just kind of jumped out at me.  Doesn't a supreme court justice have some type of staff that can proof read this for them?

[MediumTex]

What then, I would ask, is the point of even having a judicial branch? If congress is basically reasonable and trustworthy, and its excesses can be curbed by an angry electorate, what role does that leave for judicial review?

It's amazing that this woman considers herself a liberal. Her dissent is an incredibly illiberal paean to intrusive federal power over its citizens. The cases she cites are almost universally the likes of Wickard, Raich, and other ones where the court upheld federal power to intrude into the lives of nonviolent individuals to confiscate their land or money, or throw them in jail for ordering their private affairs in a different manner from how congress dictated.

Statism is like a worm that crawls into the mind and when nurtured by the accumulation of power begins to cause the world to look distorted and all human affairs to seem in need of state direction and control.

The statist, whether in the role of politician, judge or bureaucrat is endlessly agitated at the inability of certain elements of society to simply fall in line with what the state says is best for them.

Mindless statism is sort of like hypocrisy in general--you can live for a long time without being fully aware of its existence, but then when you become aware of it you suddenly see it everywhere and it's hard to ignore it because it is so dissonant on so many levels.  When you get tuned into these things it can make you feel like a dog at a whistlers' convention.

[MachineGhost]

It's amazing that this woman considers herself a liberal. Her dissent is an incredibly illiberal paean to intrusive federal power over its citizens. The cases she cites are almost universally the likes of Wickard, Raich, and other ones where the court upheld federal power to intrude into the lives of nonviolent individuals to confiscate their land or money, or throw them in jail for ordering their private affairs in a different manner from how congress dictated.

I think its safe to say that liberals are actually progressives as conservatives are actually neo-statists.  They no longer live up to the anarchronistc notions.  They're all about political expediency rather than respecting princples.  While I mourn for the loss of the American principles, I do wonder if the techno-free-market-democracy will be sufficient power to keep the political elite in check just through the path of least resistance.  I mean, middle class life is not all that bad in other developed countries that don't have our Constitutionally-enshrined limits on government power.  OTOH, it doesnt look good in the European Union where there are over 60,000 Eurocrats in Brussels dictating and foistering the most Communistic and unproductive laws and regulations onto the member states.  I fear that is the direction we will go with the newly expansive Federal powers.

Here's some reactions from the general public:

http://www.journaltimes.com/lifestyles/ ... 5cfad.html

[jackely]

Some conservative commentators I've read have described Robert's decision as "genius" as though he had some mystical insight into the so-called "conservative" cause of limited government that the rest of us do not have.

I say bullshit. I really don't care whether it's about the commerce clause or about the taxing power of the government the result is the same whatever you say.

I hear there will now be a shortage of doctors due to the dis-incentives of Obamacare. I have a perfect solution. Give every high school student in their junior year a test to find out which ones have an aptitude for being doctors (I think the groundwork has already been laid by both political parties for such a test). Those who score with the requisite aptitude are free to choose other professions if they wish but this will have an effect on their tax rates in the future if they choose not to become doctors.

Constitutional according to Roberts? Why not?

[Pointedstick]

Probably constitutional under the logic of Roberts' opinion. To really test this, I suggest a tax on not owning firearms. Every gun you own reduces the tax by $100. I wonder how that one would go over? 

[Greg]

Probably constitutional under the logic of Roberts' opinion. To really test this, I suggest a tax on not owning firearms. Every gun you own reduces the tax by $100. I wonder how that one would go over? 

Can you get $100 for each gun you transform into one gun?

"And that's how, with a few minor adjustments, you can turn a regular gun into five guns."

- Moe Szyslak

[jackely]

Probably constitutional under the logic of Roberts' opinion. To really test this, I suggest a tax on not owning firearms. Every gun you own reduces the tax by $100. I wonder how that one would go over? 

You really are onto something here but probably the opposite of what you are saying.

The second amendment gives us the right to keep and bear arms but congress also has an unlimited power to tax which apparently trumps all other rights according to Mr. John Roberts, so a tax of $5000 on gun owners is entirely constitutional is it not?

[Pointedstick]

You really are onto something here but probably the opposite of what you are saying.

The second amendment gives us the right to keep and bear arms but congress also has an unlimited power to tax which apparently trumps all other rights according to Mr. John Roberts, so a tax of $5000 on gun owners is entirely constitutional is it not?

That would probably fly too. It's funny; for all the discussion of limiting principles, Roberts seems to have run so far away from permitting the mandate under the commerce clause that he ran right into a new power with no limiting principle at all.

[MediumTex]

The more I think about the Supreme Court's decision on healthcare reform the more bizarre it seems.

The idea that it was Roberts that led the majority is sort of surreal.  I'm sure the other conservative justices feel the same way, since apparently Roberts was solidly with them in favor of striking it down following oral arguments (see the great story that CBS has on Roberts wavering).

Roberts message seems to be that politically it would have been difficult for the Supreme Court to take such a drastic step as striking down the law, which is IMHO exactly the kind of thing that the Supreme Court shouldn't be concerned about.

If Congress didn't have the authority to pass the law, then that should be the end of the matter.  The fact that Congress had to use all of the procedural trickery to get it passed in the first place is also something that I think undermines the legitimacy of the law.  It was hardly a matter of an elected body following the will of the voters in a transparent democratic process.

[Lone Wolf]

Roberts message seems to be that politically it would have been difficult for the Supreme Court to take such a drastic step as striking down the law, which is IMHO exactly the kind of thing that the Supreme Court shouldn't be concerned about.

If Congress didn't have the authority to pass the law, then that should be the end of the matter.  The fact that Congress had to use all of the procedural trickery to get it passed in the first place is also something that I think undermines the legitimacy of the law.  It was hardly a matter of an elected body following the will of the voters in a transparent democratic process.

I agree.  The only silver lining that I can detect is that at least we have four Justices that took their duty to the Constitution seriously.  The problem is that we're supposed to have nine that do so.

That CBS story you mentioned about Roberts wobbling out of fear of political consequences is very good.  Quite disturbing, too, because as you say, the Court is designed to be separated from this sort of political pressure.  Here's a CBS piece describing Roberts' absurd evolution on this issue.

And what a mess this whole decision is.  The Court says that the supposed Constitutionality of this "tax" hinges in part on the "tax" not being high enough to force you to buy insurance.  Which means that if this "tax" (wink, wink) ever gets raised, are we going back to court again?  What if fewer people than ever decide to purchase health insurance and Congress feels compelled to raise this penalty tax in order to keep the insurance industry from falling apart?

It's amazing that this woman considers herself a liberal. Her dissent is an incredibly illiberal paean to intrusive federal power over its citizens. The cases she cites are almost universally the likes of Wickard, Raich, and other ones where the court upheld federal power to intrude into the lives of nonviolent individuals to confiscate their land or money, or throw them in jail for ordering their private affairs in a different manner from how congress dictated.

It's a shame that the term "liberal" has been wrested away from classical liberals like John Locke, Frederic Bastiat, and Adam Smith and handed to nasty statists like FDR and those who follow in his footsteps.  It was clear the definition had changed once you saw a "liberal" icon adopting a command economy, placing American citizens in concentration camps, and confiscating wealth.

[Benko]

The fact that Congress had to use all of the procedural trickery to get it passed in the first place is also something that I think undermines the legitimacy of the law.  It was hardly a matter of an elected body following the will of the voters in a transparent democratic process.

You see it that way, and I see it that way, but I doubt most of the media, or  Obama and the democrats in congress or many of the democrat electorate see it that way.  And that is part of the problem.

Edit: or perhaps they see/admit it was passed with "trickery" but don't think it matters.

[MachineGhost]

You see it that way, and I see it that way, but I doubt most of the media, or  Obama and the democrats in congress or many of the democrat electorate see it that way.  And that is part of the problem.

Edit: or perhaps they see/admit it was passed with "trickery" but don't think it matters.

I've been doing some more thinking and reading.  I think the outcome is a blessing in disguise because the "unintended consequences" (to anyone with economic illiteracy) will not go the way the progressive single-payer/universal coverage groupies approve of:

1. Roberts rewrote the law so that the mandate is a tax and not a legal penalty while preserving "lawful choice" (his words) of a citizen to pay the tax and do without health insurance coverage, and/or avoid the overpriced-low-deductible-government-mandated-minimum-coverage, or buy the overpriced-low-deductible-government-mandated-minimum-coverage.  This will have the effect that if there is still market demand for it, major castraphobic only coverage will still be available that was going to be outlawed by the overpriced-low-deductible-government-mandated-minimum-coverage monopoly.

2. The $2K per employee penalty for employers not providing coverage is substantially less than the cost of covering employees with the group-co-op-of-shared-sick-care-expenses-masquerading-as-bogus-insurance schemes.  This will have the end result of forcing employees to utilize the individual marketplace and result in finally allowing portable insurance coverage not tied to employers.

3. The tax penalty for not having health insurance is $95 in 2014, then $695 in 2016, then adjusted for inflation thereafter (on 2.5% or so of household income).  Paying the penalty and then not acquiring overpriced-low-deductible-government-mandated-minimum-coverage in favor of alternative health care insurance coverage and/or preventive self-coverage will still cost less overall (and have superior health outcomes).

4. Employers can now offer HRA's.  HRA's allow the employer to impartially provide tax-free reimbursement of health insurance premiums without also providing the group-co-op-of-shared-sick-care-expenses-masquerading-as-bogus-insurance that most naive employees seem to feel is an expected benefit of a job since World War II.  The employee must purchase their own health insurance policy in the individual marketplace.

5. Individual health insurance now costs less than half of the employer provided group-co-op-of-shared-sick-care-expenses-masquerading-as-bogus-insurance.

6.  Because of the "lawful choice", HSA's may still be available and will continue to be a powerful force of consumer-driven competition in driving down provider costs and increasing transparency.  Employees that expect "insurance" coverage from employers tend not to like HSA's because it requires them to budget for sick care expenses and act like responsible adults.

7. We'll now have a more productive society as people can stop worrying about losing their job, staying in a useless job, and/or not having any sick care expense coverage due to emergencies or chronic conditions.  As the tax only effects 20% of the popoulation, in all likelihood they will be going on Medicare as the income limit caps are raised, assuming any state decides to opt to do so.  With more coverage and state-based risk pooling, the backdoor of expensive emergency room access should results in overall lower net costs.

8. Best of all, the interstate commerce clause finally got swatted down!  The titanic wave of liberty loss from relentless government overregulation and intervention since FDR cartelized up the country may finally be turning.

One big negative that I see is with the Federal govenrment providing premium subsidies to every socio-economic segment, the individual market premiums are likely to increase and outpace inflation over time ala Sallie Mae.  It's simple supply and demand as well as rent seeking behavior.  More "free" money chasing fewer goods/services that can be currently produced is inflationary.

[MachineGhost]

http://www.forbes.com/sites/aroy/2012/0 ... g-workers/

[doodle]

The Constitution (like the Bible, or any other written document) is subject to a variety of interpretations. At the end of the day though it strikes me as simply a piece of paper that expresses how people should organize a government based on predominantly rich old dead white guys philosophical views and assumptions about mans "nature".  It does not express inviolable truths about how man must live, but rather puts forward one type of model. When I hear people up in arms about such and such constitutional clause or article, I think about those firebrand preachers who proclaim that we should all abide by the strict rules laid out by God our creator in the Deuteronomic Code.

[doodle]

I think one very big change that has happened in American society that is causing us to have to reevaluate private citizens relationship with their government is the breakdown of community. Your community used to be a source of security, but this no longer exists. People are thus forced to search for security from their government. In other words the role of government has had to expand to fill in the gaps where our private gated and sheltered communites have withdrawn from their social obligations. I was reading John Adams biography a while ago and I was impressed by the part that talked about how both he and his father ( as leaders in the community) were expected to take in and care for other members of the community who had no where to turn for help.

[hoost]

The Constitution (like the Bible, or any other written document) is subject to a variety of interpretations. At the end of the day though it strikes me as simply a piece of paper that expresses how people should organize a government based on predominantly rich old dead white guys philosophical views and assumptions about mans "nature".  It does not express inviolable truths about how man must live, but rather puts forward one type of model. When I hear people up in arms about such and such constitutional clause or article, I think about those firebrand preachers who proclaim that we should all abide by the strict rules laid out by God our creator in the Deuteronomic Code.

Yes, but the Deutoronomic Code is not the law of the land; the Constitution is supposed to be.  It's not a piece of paper that expresses an opinion of how a government should operate; when it was written, it explained how our government would operate.  I don't think even the people who signed the Constitution thought it was perfect; they all had differing opinions and it represented a lot of compromise.  It doesn't even discuss how men must live, it discusses how the Federal government of the United States operates and places constraints on that government.  I don't think even the people who are upset about the Constitution not being followed think it's perfect, but they recognize that there is a process by which to amend that Constitution and feel that that process should be followed.

[doodle]

Yes, it expresses how our government "would" operate based on our founding fathers ideas about how they thought it "should" operate.

I agree there is a process to amend the constitution which we should probably get around to doing rather than trying to constantly reinterpret an eighteenth century documents language to deal with 21 st century problems. This process would be simplified if there weren't a group of people constantly exalting this document as sacrosanct and trying to stop any form of social evolution.

[hoost]

I think one very big change that has happened in American society that is causing us to have to reevaluate private citizens relationship with their government is the breakdown of community. Your community used to be a source of security, but this no longer exists. People are thus forced to search for security from their government. In other words the role of government has had to expand to fill in the gaps where our private gated and sheltered communites have withdrawn from their social obligations. I was reading John Adams biography a while ago and I was impressed by the part that talked about how both he and his father ( as leaders in the community) were expected to take in and care for other members of the community who had no where to turn for help.

I also see this correlation, but I wonder if the cause was private citizens or if the cause was government; i.e. which came first?  If people know the government is already "taking care of" the poor, it seems to me that they would feel less of an obligation to do so.  Or did people, at some point or over time, just become cold-hearted?  Maybe it's a combination of the two?  Of course, it's not something you can ever prove one way or the other, so we'll never know.

[doodle]

I don't think it is a chicken and egg issue necessarily, but rather a gradual evolution that took place as we evolved from a small agrarian society to a urban post industrial society. As societies grow larger and more complex new methods evolve to deal with problems.