News Federal Judge Strikes Down Part of Obamacare Law

[turbo]

The topic of this thread is the legal issue turbo, not a political one. You were gracious enough to post the opinion of the judge, not Fox News, not some politician, not from Hospital lobbies.

My point is that much of this thread has been a re-hash of the act itself, with little regard for the messy realities that will drive the appeal process regarding the mandate. IMO, a lot of people are going to be very surprised at who files amicus briefs and in support of which side of the appeal process as it plays out.

 

[mheslep]

I would add that no one is forced to buy health insurance under Obamacare. That characterization is false. However, they are charged for their risk to society for not having insurance.

Why do opponents of Obamacare want to continue giving these people a free ride? Get injured, then declare bankrupcy, or ditch the bill collectors, or just send in $10 a month for life, and dump the liability on the system. That's how it works now.

The 'risk to society' comes about in this instance because of various health entitlements and mandates on medical providers (e.g. EMTALA) set up by the federal and state governments themselves, creating financial risks. Furthermore, as the reach and scope of government grows there is literally nothing in life that can not be said by the same argument to have some impact on government safety nets especially when things go badly. The federal government is free to change the provision of the programs it created to address such risks, but it does not have leave because of the problems it created to mandate people to buy health insurance, buy that car, buy this house, or buy that birth control, even though all of these things will have some impact on the society at large. Why not? Because the constitution enumerates the things allowed by the federal government, and it does not include such, at least not as I see it, and now so does a federal judge along with thirty some state Attorney Generals. More importantly, the federal government can not require these things because we are a free people. What can't Mandate enthusiasts understand that?

Edit: Conclusion from the opinion, Judge Hudson, pg 37:

The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers. At its core, this dispute is not simply about regulating the business of insurance - or crafting a scheme of universal health insurance coverage - its about in individual's right to choose to participate.​

 

[talk2glenn]

The administration is (now) specifically claiming in court that the law contains no requirement to buy insurance, and contains no "penalty" at all, but merely a tax hike on selected people.

What are you talking about?

The obamacare mandate contains two separate sections:

First, Section 1501(a) of the "Affordability" (lol) Act imposes a statutory (read: legal, codified in the USC, with the same weight of law as any other statutory requirement at the federal or local level) requirement on all Americans to maintain health acceptable health insurance coverage.

No one, including the Administration, is arguing otherwise. This is fact.

Second, Section 1501(b) imposes a financial penalty on those who fail to comply with (a). Congress had no interest in seeing these cases decided in the courts, because this would be slow, expensive, and public, so they applied the penalty as an amendment to the Internal Revenue Code. The penalty is a tax, but the mandate is a law.

However, this does not change the fact: the tax is only imposed after someone breaks the law, in this case section 1501(a). Ergo, as a matter of fact (upheld by every court that's heard this case, regardless of the direction in which they ruled) it is a legal penalty and inexorably tied to the Commerce Clause - tax and spend authority is not sufficient to defend the mandate in sum.

And the subject of this thread is whether or not that "individual mandate" is a valid legally enacted law. The judge referred to ruled that it is not a valid law.

Au contraire. The judge ruled that the mandate was unconstitutional, but considering that enforcement does not begin until 2014, and given the governments inevitable appeal and the lack of any injunction against the Act's implementation in the mean time, the practical consequence is nil.

The judge himself said as much in denying to issue an injunction. This case is still very much open, and the law is still on the books.

 

[mheslep]

To assert a "penalty" is a "tax" as a fact instead of one of the fundamental arguments of this case is misinformation, and particularly unfortunate when we have the opinion at hand! In the opinion the US asserts that the two are essentially synonymous, Virginia drew attention to the differences, pointed out how the Congress had diliberately fallen back from tax to penalty for political cover. The judge agreed the two terms are not equivalent. The opinion dedicates several paragraphs to exactly this topic, specifically sections VI and VII, in section VII citing Supreme Court precedent:

"the two words [tax vs. penalty] are not interchangeable ... if if an exaction [is] clearly a penalty, it connot be converted into a tax by simple expedient of calling it such." - La Franca​

http://big.assets.huffingtonpost.com/health-care-ruling.pdf

 

[Al68]

Thank you! And the minimum mandated coverage will have support from health-care businesses that the folks on FOX won't tell you about.

When that "unconstitutional" clause gets appealed to the Supreme Court (possibly before) I think you'll find that health insurance providers, and hospital groups will both file amicus briefs in support of the mandate...The one that will surprise conservatives who haven't been thinking this through is the health-insurance companies.

LOL. Why would that surprise conservatives who were pointing this out all along? I pointed this out many times on this forum myself. I pointed out that the largest insurance lobby in the country, representing all the big companies, was asking Democrats for this, while conservatives opposed it. We should be surprised at what we were trying to tell you all along while you refused to listen?

I heard a left wing radio host today call this "ironic". That takes some pretty twisted circular logic:

1. Dems push for this law, insisting on mandate provision, which benefits insurance companies.
2. Reps oppose it.
3. Dems claim Reps are "on the side" of insurance companies.
4. Now it's "ironic" that Reps oppose a provision that benefits insurance companies.

This completely takes the cake for being the most delusional logic of the year.

 

[Gokul43201]

What I think is ironic, or at least interesting, is that the one aspect of the legislation that Obama vehemently opposed until it came time to write the bill might be the one thing that gets kicked out of it.

While (at the time) I was happy to see him oppose the individual mandate, I was probably mistaken about why he opposed it.

 

[Al68]

What are you talking about?

The obamacare mandate contains two separate sections:

First, Section 1501(a) of the "Affordability" (lol) Act imposes a statutory (read: legal, codified in the USC, with the same weight of law as any other statutory requirement at the federal or local level) requirement on all Americans to maintain health acceptable health insurance coverage.

No one, including the Administration, is arguing otherwise. This is fact.

I was referring to the recent attempt of the administration to claim it was merely a tax, therefore claiming that no one was actually forced to buy insurance. I agree with you that it is in fact a penalty.

Au contraire. The judge ruled that the mandate was unconstitutional, but considering that enforcement does not begin until 2014, and given the governments inevitable appeal and the lack of any injunction against the Act's implementation in the mean time, the practical consequence is nil.

Do you know what Au contraire means? I never claimed that decision had any practical consequence, I claimed it was the subject of this thread. And "unconstitutional" means "legally invalid". So in effect you said "Au contraire" then agreed with everything I said, while disagreeing with claims I never made.

And why would the judge issue an injunction to prohibit enforcement of the law prior to appeal when the law won't go into effect until long after the appeal? There was nothing to issue an injunction against.

 

[Al68]

What I think is ironic, or at least interesting, is that the one aspect of the legislation that Obama vehemently opposed until it came time to write the bill might be the one thing that gets kicked out of it.

While (at the time) I was happy to see him oppose the individual mandate, I was probably mistaken about why he opposed it.

Yes, he claimed he didn't like the mandate, but actions speak louder than words. Reality is he and most Democrats, and the insurance lobby, supported the mandate while conservatives opposed it.

Does the fact that Dems claimed Reps were "on the side of insurance companies" make it "ironic" that conservatives are against the same provision they were always against? Delusional nonsense, plain and simple.

 

[Gokul43201]

Yes, he claimed he didn't like the mandate, but actions speak louder than words. Reality is he and most Democrats, and the insurance lobby, supported the mandate while conservatives opposed it.

I'm not giving him a free pass for reversing his stand on what (to me) was a more sensible position than the popular Dem version at the time.

Does the fact that Dems claimed Reps were "on the side of insurance companies" make it "ironic" that conservatives are against the same provision they were always against? Delusional nonsense, plain and simple.

I don't see the irony, but neither do I support the assertion that such an attitude can only be the result of delusion.

 

[Al68]

I don't see the irony, but neither do I support the assertion that such an attitude can only be the result of delusion.

Well, there are other possible reasons, like ignorance of the facts, but it was delusional logic in this case.

 

[Al68]

Another issue is whether or not the Obama administration should agree to take this straight to the Supreme Court, to save time, effort, and money. The administration says http://news.yahoo.com/s/ap/us_health_care_overhaul" , they should "follow the ordinary course of allowing the courts of appeals to hear it first so the issues and arguments can be fully developed."

It seems to me, since the Supreme Court will almost certainly eventually hear the case anyway, there are many disadvantages of waiting and few advantages. If the administration's arguments to constitutionally rationalize the law aren't already "fully developed", they should have though of that prior to passing the law.

But I think that really means "maybe one of those right-wing extremist justices will croak before the case reaches them".

 

[WhoWee]

Another issue is whether or not the Obama administration should agree to take this straight to the Supreme Court, to save time, effort, and money. The administration says http://news.yahoo.com/s/ap/us_health_care_overhaul" , they should "follow the ordinary course of allowing the courts of appeals to hear it first so the issues and arguments can be fully developed."

It seems to me, since the Supreme Court will almost certainly eventually hear the case anyway, there are many disadvantages of waiting and few advantages. If the administration's arguments to constitutionally rationalize the law aren't already "fully developed", they should have though of that prior to passing the law.

But I think that really means "maybe one of those right-wing extremist justices will croak before the case reaches them".

This legislation is slowing creeping into place - the longer the review process - the harder to remove.

 

[Vanadium 50]

But I think that really means "maybe one of those right-wing extremist justices will croak before the case reaches them".

How is this different than FDR attempting to pack the court?

I think it's fairly clear where 8 of the 9 stand. The question is Kennedy. After rereading his opinion on Kelo v. New London, another case of government expanding beyond what were previously considered Constitutional bounds, I think that it's quite likely he will support ObamaCare. The standard in Kelo he used was "rationally related to a conceivable public purpose."

However, tactically, it is in Obama's interest to wait. The above is an argument that he will probably get his way, but after one more retirement, the odds improve.

 

[Al68]

How is this different than FDR attempting to pack the court?

Not much different.

The standard in Kelo he used was "rationally related to a conceivable public purpose."

Imagine that. Using a standard to determine constitutionality that isn't in the constitution. All too common since FDR.

 

[xxChrisxx]

If your experience was representative, there would be no insurance industry. Insurance companies are in business to make money, not lose it. Their margins may only be 2-4%, but that's profit, not loss, which means (insurance premiums) > (hospital bills) + (everything else covered by insurance).

That's just totally backwards. If what you said was the case, then why would any ever get insurance? Stop and think about it for a second. DUCY?

 

[WhoWee]

That's just totally backwards. If what you said was the case, then why would any ever get insurance? Stop and think about it for a second. DUCY?

Why is that backwards? If (over time) the premiums collected (and income from investments) are less than total costs the company would go out of business.

 

[Office_Shredder]

That's just totally backwards. If what you said was the case, then why would any ever get insurance? Stop and think about it for a second. DUCY?

Because insurance is supposed to be protection from when you get hit with a 6 digit bill, not a way to lower your healthcare costs. The problem is that people forget this for some reason.

You don't think, for example, that you save on car repairs what you spend on car insurance do you? (unless you have an accident)

 

[xxChrisxx]

What? The question obviously wasnt as simple as I thought. I'm on my phone atm, will post when I'm at a pc.

EDIT: Ok here we go.

Wow, you must have not seen a hospital bill lately! In my experience, (hospital bills) >> (insurance premiums)

If your experience was representative, there would be no insurance industry. Insurance companies are in business to make money, not lose it. Their margins may only be 2-4%, but that's profit, not loss, which means (insurance premiums) > (hospital bills) + (everything else covered by insurance).

Lisa was rather obviously talking about an individual not the insurance company. The reason why insurance premiums are lower than hospital bills is becuase of probability and risk. The insurance company makes an assesment to the liklihood of a claim on the individuals part. They take the total cost of a claim, and factor in the probability and then add a margin for profit.

Insurance only works because not all people who get insurance use it.

That was a pretty cut down explination becuase I have to go and cook my missus tea.

 

[mheslep]

...

I think it's fairly clear where 8 of the 9 stand. The question is Kennedy. After rereading his opinion on Kelo v. New London, another case of government expanding beyond what were previously considered Constitutional bounds, I think that it's quite likely he will support ObamaCare. The standard in Kelo he used was "rationally related to a conceivable public purpose."

I agree, looking backward it appears the SCOTUS vote would be 5-4 in favor of the mandate. However, I think the standard he uses there is an exceptionally week argument, which in the past might have muddled by, but now week arguments are going to be met with a demand: "where would your reasoning find something that is not rationally related to the public purpose?" Judge Hudson's opinion already rejected similar argument from the government as lacking any "logical limit".

Virginia AG Cuccinelli posited that a federal government mandate requiring every citizen buy a gun would be perfectly acceptable (and cheaper than healthcare) under such reasoning.

 

[talk2glenn]

And why would the judge issue an injunction to prohibit enforcement of the law prior to appeal when the law won't go into effect until long after the appeal? There was nothing to issue an injunction against.

An injunction would have prohibited enforcement of the law pending the governments appeal. In the absence of an injunction, the insurance mandate is still, technically, a standing legal requirement, the judges finding of unconstitutionality not withstanding.

I was referring to the recent attempt of the administration to claim it was merely a tax, therefore claiming that no one was actually forced to buy insurance.

I'm not aware of such a claim. Has the President or a member of his staff at any time claimed that the mandate was a tax? If your referring to the presence of such language in the attorney's briefs filed with the court, 2 points:

1. The attorneys were probably referring to part (b) of the Act, which is (technically) a tax but is treated as a penalty in matters of fact.

2. Attorneys have an ethical obligation to present any defense, however desperate or absurd, in the legal protection of their clients. This does not make it the position of the client or the primary argument by the attorneys. It just represents a desperate fallback - if the court rules that the mandate isn't defensible under Commerce, they can say "well what about the power to tax". That does not make the argument reasonable or valid. It's just what attorneys do. It's sort of like an attorney at a dui trial claiming you started drinking after the fact - in practice, its not a reasonable defense (and won't get you off), but if you've got nothing else...

I believe much of the confusion over the administration's position stems from these two facts. Clearly, the mandate wasn't intended to be a tax - it says as much in the text of the Act.

Look at the language of Hudson's ruling, itself (emphasis mine):

This Court is therefore unpersuaded that Section 1501(b)(1) is a bona fide revenue raising measure enacted under the taxing power of Congress.

The Judge was referring to part (b), which the government does maintain is a tax (and, technically, it is), but that the court and congress both consider a penalty because its intent is to coerce compliance with part (a), and not raise revenue. Part (a) is a mandate, a legal requirement, and part (b) is an enforcement position.

Does the fact that Dems claimed Reps were "on the side of insurance companies" make it "ironic" that conservatives are against the same provision they were always against? Delusional nonsense, plain and simple.

The "insurance mandate" was, philosophically, a principally conservative cause until 2006, or even 2008, with liberal groups in opposition. See the Republican healthcare reform proposal under Gingrich in, I believe, 1994.

It was a conservative cause intended principally to insulate the industry against the cost premiums associated with any reform. Sorry, but true - they were for it before they were against it. Too bad, to. I don't see how private health insurance in the United States can survive without a national mandate. They will probably have to implement it state-by-state with a federal funds incentive if it's struck down in this case (as with other national standards, like the BAC limit or education targets). The exception has historically been the libertarian wing of the party, but they never represented a majority or even near-majority; that may be changing.

See here:

http://www.politicsdaily.com/2009/08/24/individual-mandate-flies-under-the-radar/5

 

[Gokul43201]

But I think that really means "maybe one of those right-wing extremist justices will croak before the case reaches them".

Who do you have in mind? I think there are more favorable judges (Breyer, Ginsberg, Kennedy) that seem close to "retirement" than there are unfavorables (Scalia).

 

[mheslep]

The "insurance mandate" was, philosophically, a principally conservative cause until 2006, or even 2008, with liberal groups in opposition. See the Republican healthcare reform proposal under Gingrich in, I believe, 1994.

It was a conservative cause intended principally to insulate the industry against the cost premiums associated with any reform.

The support by the odd Republican like Richard "wage and price controls" Nixon does not make a federal insurance purchase mandate a "conservative cause".

Sorry, but true - they were for it before they were against it.

Who is they? Why not try letting others decide what is true after posting facts and argument, not assertion?

Too bad, to. I don't see how private health insurance in the United States can survive without a national mandate.

There are many, many aspects of society where the actions or inactions of individuals impact others (diet, parenting), but the nation does not find the need to abolish or even protect private industry as a consequence.
http://www.roadmap.republicans.budget.house.gov/Issues/Issue/?IssueID=8516

 

[Gokul43201]

The "insurance mandate" was, philosophically, a principally conservative cause until 2006, or even 2008, with liberal groups in opposition. See the Republican healthcare reform proposal under Gingrich in, I believe, 1994.

The precursor to the 1994 Consumer Choice Health Security Act was the nearly identical 1993 Republican counter-proposal to Clinton's Universal Healthcare plan. The 1993 bill also contained the individual mandate, the no denial for pre-existing conditions clause, as well as nearly every other major aspect of the Obama healthcare bill.

Here's a comparison of salient features:

Read the rest here: http://www.kaiserhealthnews.org/Graphics/2010/022310-Bill-comparison.aspx

Link to 1993 bill summary, sponsors, and other info: http://thomas.loc.gov/cgi-bin/bdquery/z?d103:SN01770:

 

[talk2glenn]

The support by the odd Republican like Richard "wage and price controls" Nixon does not make a federal insurance purchase mandate a "conservative cause".

Who is they? Why not try letting others decide what is true after posting facts and argument, not assertion?

Other have beat me to it. Also, I believe (but am not certain) that McCain spoke in favor of an insurance mandate at some point as recently as the '08 presidential campaign. The insurance industry is, as a point of fact, a major donor to the Republican party. This is not coincidental.

There are many, many aspects of society where the actions or inactions of individuals impact others (diet, parenting), but the nation does not find the need to abolish or even protect private industry as a consequence.
http://www.roadmap.republicans.budget.house.gov/Issues/Issue/?IssueID=8516

Indeed there are, m. However, most of those aspects are not nearly regulated to the extent that healthcare (and health insurance) are.

The insurance model is sustainable only if insurance companies can pick and choose their clients and their rates to manage risk. Regulation restricts both of these elements. The only way a private company that must insure the sick and cannot discriminate in pricing (so-called community ratings) can survive is if it has a lot of otherwise healthy people on its rolls, who are paying for expensive and unnecesarry coverage.

To accomplish the former, the government needs to mandate insurance coverage, and push low-cost, low-coverage plans out of the market.

This is economic fact. For a working example, see the German healthcare model. They combine a minimum coverage mandate with private (but very heavily regulated, comparable to post-obamacare levels in America) insurance providers.

EDIT: I should add that I'm not defending a mandate philosophically or legally. It has its problems on both counts, but I'm just talking practically. Further, I don't mean this as a defense of the Obama reform bill; I think it sucks, to be blunt.

 

[turbo]

EDIT: I should add that I'm not defending a mandate philosophically or legally. It has its problems on both counts, but I'm just talking practically. Further, I don't mean this as a defense of the Obama reform bill; I think it sucks, to be blunt.

Part of the reason it sucks is that it doesn't force down health-care costs. Baucus needed Snowe's vote to get the draft bill out of committee, and he caved in on the public option. As Snowe has said back here in Maine, the public option would be too cost-effective and could drive private insurers out of the market. Thanks to our senior senator the public option is dead and mandated coverage is alive.

For a little background, Maine is a very rural state, and a large percentage of our citizens are self-employed (fisherman, loggers, truckers, etc) and perhaps an even bigger chunk are employed seasonally, in jobs that pay NO benefits, including hotel, motel, restaurant, rafting and fishing guides, snow-makers and lift-operators for the ski resorts, etc. A public option would have taken a huge load off our state's financial problems and given small businesses an assist in keeping skilled seasonal or part-time workers, but once again she has sold our citizens and small businesses down the river.

When I pointed out that the insurance companies and hospitals would come out in favor of the mandated coverage via amicus briefs during the appeals process, it was spun into "Sure, it was the Democrats doing the bidding of the big health-care companies." Such blatant revisionism and spinning is pretty standard on this particular forum, but it is verifiable fact that if Snowe had joined the Dems on the Senate Finance Committee and passed a draft that included a public option, we wouldn't be having this conversation. Thanks again Olympia!

 

[Gokul43201]

... if Snowe had joined the Dems on the Senate Finance Committee and passed a draft that included a public option, we wouldn't be having this conversation. Thanks again Olympia!

If Snowe had done what the rest of the Rupublican party did, she wouldn't be getting singled out for criticism. Moreover, Snowe went so far as to propose a trigger mechanism for allowing a public option to kick in, but had to abandon that idea when it won no traction (and was rejected soundly by Collins, and others on the gang of six).

 

[turbo]

If Snowe had done what the rest of the Rupublican party did, she wouldn't be getting singled out for criticism. Moreover, Snowe went so far as to propose a trigger mechanism for allowing a public option to kick in, but had to abandon that idea when it won no traction (and was rejected soundly by Collins, and others on the gang of six).

All true. Unfortunately, public scrutiny comes with the job.

When she was asked if Lieberman's claim that a public option would be costly (his reason to threaten to filibuster it) she said no, but that it that it would be too competitive and cost-effective and would hurt private insurers. She floated the "trigger" idea, but who would set the targets for coverage and cost-reduction and who would set the targets for the relevant time-frames? That idea died in committee for lack of planning, precision, and clarity.

Thus, we have the older GOP mandated-coverage idea tacked onto what could be a pretty good bill. The Dems on the Finance Committee didn't want to abandon the public option, but it was the only way to get Snowe to help pass the draft out of committee.

 

[Al68]

An injunction would have prohibited enforcement of the law pending the governments appeal. In the absence of an injunction, the insurance mandate is still, technically, a standing legal requirement, the judges finding of unconstitutionality not withstanding.

No, it's not a current legal requirement, and won't be until 2014. Should the judge have issued an injunction that wouldn't have any effect until 2014, but expires at the time the appeals court rules? Knowing that the injunction would expire prior to it having any effect? That would have been bizarre.

Attorneys have an ethical obligation to present any defense, however desperate or absurd, in the legal protection of their clients. This does not make it the position of the client...

Yes, it does make it the legal position of the client. Actually the other way around: The attorney presents, often advises, but does not determine the legal position of his client.

...or the primary argument by the attorneys. It just represents a desperate fallback...

That I agree with.

Sorry, but true - they were for it before they were against it.

I won't argue that one. Republicans are the most anti-libertarian major party in the U.S., except for the Democrats. And it's irrelevant to my point, which was that it's absurd for turbo-1 to claim that conservatives should now be surprised that insurance companies favor the Obamacare mandate, after they went out their way to point it out. The back-story is a previous very long thread here on the subject where I repeatedly pointed out and showed that insurance companies supported the mandate, as well as most of the rest of the bill.

Too bad, to. I don't see how private health insurance in the United States can survive without a national mandate.

I don't know what definition of "private" you're using, but by the normal definition (policy terms determined by the private parties), private health insurance has been outlawed.

 

[turbo]

And it's irrelevant to my point, which was that it's absurd for turbo-1 to claim that conservatives should now be surprised that insurance companies favor the Obamacare mandate, after they went out their way to point it out.

I pointed out that conservatives wanted to mandate minimum coverage years ago. The difference now is that "conservative" media and their mouthpieces are trying to paint Obama with that mandate, when it was their stalking horse Olympia Snowe that killed the public option in the draft coming out of the Finance Committee and made some kind of compulsion mandatory. Is everybody tone-deaf?

Please go back to the "conservative" health-care plans of the 1990s and 2000s and show us how the GOP would have lowered health-care costs and have never invoked mandated coverage. You can't.

P&WA is a free-for-all for unsupported claims. Perhaps we can get some more stringent standards here, though, it might be too much for Evo to deal with.

BTW: It was a common rally-cry among the GOP to call mandated coverage "personal responsibility" back then. How do you force a single mother with two children, who is working a part-time job at WalMart with no benefits to buy health-care when she needs food-assistance, fuel-assistance, and other public support to keep her little family alive (not just out of poverty).

 

[Al68]

I pointed out that conservatives wanted to mandate minimum coverage years ago.

No, you didn't in the post I responded to. You claimed that they would be "surprised" that insurance companies favored the mandate. That's the claim I was responding to. Big difference.

Such blatant revisionism and spinning is pretty standard on this particular forum...

Yep.

P&WA is a free-for-all for unsupported claims.

That's obvious.