30
   

Listening to the Supreme Court hearings on Obamacare. . .

 
 
georgeob1
 
  1  
Reply Wed 28 Mar, 2012 12:14 pm
@Thomas,
Thomas wrote:

Independent of this particular case, one aspect of Supreme-Court theatralics baffles me. It's not so much about the Supreme Court as about the press coverage. Why are skptical questions so often dubbed "hostile". Why does even the sober Brookings Institution report that Alito and Scalia 'assaulted' Verilli? It's a hearing, to clarify questions that the briefs left unclear. What questions other than skeptical ones are worth the judges' time to ask?


Interesting question. I suspect the answer is that it's a lot easier to get your story on the front page or to get a bit in the newscast script if one characterizes thoughtful disagreementt, or even questioning, as "an attack" or something like that. Moreover, on both sides of the political spectrum its often easier to project bad intentions onto your opponent, as opposed to merely a different world view or set of values.
0 Replies
 
georgeob1
 
  1  
Reply Wed 28 Mar, 2012 12:24 pm
@BumbleBeeBoogie,
BumbleBeeBoogie wrote:

"Federal powers clearly beyond what was contemplated in the constitution"

Many sections of the constitution could improve to meet the 21st century changes since the age of Madison. Do you or don't you agree?

BBB


No I don't agree. I don't see any basis on which to assume that human nature has changed significantly since the late 18th century. I do recognize that 19th & 20th century "progressives", ranging from Marx, Lenin & Bob LaFolette to Mao, Clement Atlee, Teddy Kennedy and now Barac Obama have assumed that they could shape human nature, creating one or another form of "new man", in pursuit of some imagined perfect social order. So far only tyranny and economic collapse has resulted from such efforts.
Cycloptichorn
 
  2  
Reply Wed 28 Mar, 2012 12:29 pm
@georgeob1,
Also, greatly increased equality and expanded rights for all. You forgot to mention that part.

What a bullshit account you present. And lumping Obama in with Mao and Lenin is risible.

Cycloptichorn
0 Replies
 
roger
 
  5  
Reply Wed 28 Mar, 2012 01:02 pm
@FreeDuck,
FreeDuck wrote:

Thomas wrote:

Ironically, one prominent line of questioning from the conservative judges was, "if the problem is that people under-insure on the free market, why didn't the government just provide healthcare and raise taxes to finance it?"


This is kind of my hope, that if they strike down the mandate then Obama goes back and gets Medicare for all.


Strangely, I don't think either of you will be greatly surprised to hear that I could agree, if the product were the result of serious thought, instead of trying to score points.
FreeDuck
 
  1  
Reply Wed 28 Mar, 2012 01:03 pm
@roger,
You are right. I'm not surprised. Wink
0 Replies
 
JPB
 
  1  
Reply Wed 28 Mar, 2012 01:36 pm
@roger,
I agree too, but the necessary discussion on hc rationing and "death panels" will be extremely political.
0 Replies
 
Thomas
 
  1  
Reply Wed 28 Mar, 2012 03:03 pm
I just finished the hearings on severablility. I'm pretty confident the Supreme Court will vote for it. (Meaning that, if the Court ends up striking down the mandate, the rest of the Affordable Healthcare Act will remain good law. It would then be Congress's job to make work whatever is left.)
Cycloptichorn
 
  1  
Reply Wed 28 Mar, 2012 03:09 pm
@Thomas,
Thomas wrote:

I just finished the hearings on severablility. I'm pretty confident the Supreme Court will vote for it. (Meaning that, if the Court ends up striking down the mandate, the rest of the Affordable Healthcare Act will remain good law. It would then be Congress's job to make work whatever is left.)


Medicare for all!

Cycloptichorn
0 Replies
 
roger
 
  1  
Reply Wed 28 Mar, 2012 03:10 pm
@Thomas,
Interesting as I understood the law did not include a severality clause.
Thomas
 
  1  
Reply Wed 28 Mar, 2012 03:13 pm
@roger,
Does it have to?
roger
 
  1  
Reply Wed 28 Mar, 2012 03:18 pm
@Thomas,
Not if you are the Supreme Court, I guess. I thought severality didn't apply unless it were specifically included. I haven't been through law of contracts in several decades, and possibly it wouldn't apply to legislation, anyway.

What's your opinion, or what would it have been if it weren't under consideration by the SC?
0 Replies
 
georgeob1
 
  1  
Reply Wed 28 Mar, 2012 03:19 pm
@Thomas,
Thomas wrote:

I just finished the hearings on severablility. I'm pretty confident the Supreme Court will vote for it. (Meaning that, if the Court ends up striking down the mandate, the rest of the Affordable Healthcare Act will remain good law. It would then be Congress's job to make work whatever is left.)


If you are right (and I suspect you are) then the Congress that deals with the residue of the law will be one of a very different composition from the one that enacted it.
Thomas
 
  1  
Reply Wed 28 Mar, 2012 04:24 pm
@BumbleBeeBoogie,
BumbleBeeBoogie wrote:

"Federal powers clearly beyond what was contemplated in the constitution"

Many sections of the constitution could improve to meet the 21st century changes since the age of Madison. Do you or don't you agree?

I agree. Obscured by a cloud of civil religion around it, the US Constitution is flawed and desperately needs updates. To name just the first that come to my mind:
  • The equal-rights amendment never got enacted. But it should. Discrimination against women is unacceptable, and yet the courts have disagreed over time about the extent to which the 14th Amendment protects them against it. I think it's important to have the Constitution clarify the matter once and for all.

  • The Fourteenth Amendment protects people against discrimination, but only if the discriminator is a state or local government. Nothing in the Constitution explicitly protects individuals against discrimination by the federal government. (To compensate, the Supreme Court has made up an 'equal-protection component of due process' under the 5th Amendment. The legal reasoning that led it there is pitiful.)

  • Nothing in the Constitution explicitly guarantees voting as a fundamental right. Nor does anything guarantee that elections be secret, equal, and free.

  • The Constitution's text says very little to police the line between permissible and impermissible limitations that Congress may impose on civil liberties during wartime. The void is filled with Supreme-Court opinions, issued in times of panic. Instead, sober minds should think about this before the emergency, and condense their thinking into Constitutional amendments.

At the moment, being a Constitutional originalist who cares for human rights is an exercise in masochism. (I'm speaking from personal experience here.) The answer to your question, then, is yes. Yes, the constitution could very much improve through 21st-century changes.
0 Replies
 
Thomas
 
  2  
Reply Wed 28 Mar, 2012 04:39 pm
@georgeob1,
georgeob1 wrote:
If you are right (and I suspect you are) then the Congress that deals with the residue of the law will be one of a very different composition from the one that enacted it.

And if you are wrong about the latter part (and I hope you are), then the Congress that deals with the residue will hopefully make a proper job of it: Democrats propose a VA-for-all system modeled after Great Britain's National Health Service. Republicans then collapse into an epileptic seizure. Once they recover, both sides will compromise on a Medicare-for-all system, modeled after Canada's Medicare or France's Health-Insurance Agency . One can always hope, can't one? Smile
slkshock7
 
  1  
Reply Wed 28 Mar, 2012 07:09 pm
@Thomas,
Don't fool yourself, Medicare for all will also be resisted tooth and nail. A Repub Congress might just permit a small expansion of Medicare to cover those who can demonstrate no other means of getting health insurance.
0 Replies
 
edgarblythe
 
  1  
Reply Wed 28 Mar, 2012 07:42 pm
Looks like the entire health care enactment may be toast, from what I have been reading tonight.
0 Replies
 
Thomas
 
  2  
Reply Thu 29 Mar, 2012 10:07 pm
@Irishk,
Tom Goldstein, as quoted by Irishk, wrote:
The reality, Goldstein said, is that Verrilli had a hard case to make that relied on the intricacies of health insurance economics. He needed to demonstrate that someone's decision not to buy health insurance is, in fact, an economic "activity" that Congress can regulate under the Commerce Clause. Try making that sound snappy.

Here is how one economist made it sound snappy:

Paul Krugman wrote:
Let’s start with the already famous exchange in which Justice Antonin Scalia compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter. That comparison horrified health care experts all across America because health insurance is nothing like broccoli.

Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.

Full article.

Just put yourself in Verilli's position. You're the top lawyer of the richest and most powerful national government in the world. You're arguing a multi-billion-dollar case. You know it will turn on the anomalies of healthcare economics. Shouldn't you make your case with at least as much impact as an academic economist moonlighting in journalism? Failing that, shouldn't you at least call that economist, or economists like him? Yes, you should. But Verilli didn't.

This shows me that he is either incompetent, or that his boss never cared for the mandate in the first place. (Which figures---he was the last Democratic candidate to endorse it in 2008.) And it's not just the oral argumnt. The distinction fails to come across in their breifs either. (Brief here, reply brief here. Both files are PDFs) This is a failure of the entire legal team. And Americans may end up wasting multiple hundred billion dollars a year because of it.
Irishk
 
  2  
Reply Fri 30 Mar, 2012 10:27 am
@Thomas,
I think some of Goldstein's sympathy for Verrelli perhaps stems from the fact that he, himself, has argued a couple of dozen cases before the Court and realizes the difficulties therein.

He continues to defend him, although he does make certain to point out the brilliance of the challengers' arguments as well.

Tom Goldstein does have a dog in the fight, since he's representing AARP in support of upholding the statute, and he still contends that although it could go either way, he still gives the government a 60%-40% chance to prevail.

And, not to derail your thread, but he's also a huge proponent of transparency in the Court, so is understandably majorly ticked off at the RNC, as this scathing post on his blog indicates:

The RNC Shoots Itself in the Mouth
wandeljw
 
  2  
Reply Fri 30 Mar, 2012 10:42 am
@Thomas,
Verrilli did discuss the anomalies of healthcare economics in this exchange with Scalia:

Quote:
JUSTICE SCALIA: Wait. That's -- it's both "Necessary and Proper." What you just said addresses what's necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we've held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure.
The argument here is that this also is -- may be necessary, but it's not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left? If the government can do this, what -- what else can it not do?
GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that -- this is a regulation -
JUSTICE SCALIA: No, that wasn't my point. That is not the only constitutional principle that exists.
GENERAL VERRILLI: But it -
JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that's a principle?
GENERAL VERRILLI: Of course we do, Your Honor.
JUSTICE SCALIA: Okay. That's what we are talking about here.
GENERAL VERRILLI: And the way in which this Court in its cases has policed the boundary that -- of what's in the national sphere and what's in the local sphere is to ask whether Congress is regulating economic activity with a substantial effect on interstate commerce.
And here I think it's really impossible, in view of our history, to say that Congress is invading the State sphere. This is a -- this is a market in which 50 percent of the people in this country get their health care through their employer. There is a massive Federal tax subsidy of $250 billion a year that makes that much more affordable. ERISA and HIPAA regulate that to ensure that the kinds of bans on pre-existing condition discrimination and pricing practices that occur in the individual market don't occur.
JUSTICE SCALIA: I don't understand your point -
GENERAL VERRILLI: This is in -
JUSTICE SCALIA: Whatever the States have chosen not to do, the Federal Government can do?
GENERAL VERRILLI: No, not at all.
JUSTICE SCALIA: I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not.
GENERAL VERRILLI: But this -- but, Your Honor, this is -- what the Court has said, and I think it would be a very substantial departure from what the Court has said, is that when Congress is regulating economic activity with a substantial effect on interstate commerce, that will be upheld. And that is what is going on here. And to embark on -- I would submit with all due respect, to embark on the kind of analysis that my friends on the other side suggest the Court ought to embark on is to import Lochner-style substantive due process -
Thomas
 
  1  
Reply Fri 30 Mar, 2012 12:42 pm
@wandeljw,
wandeljw wrote:
Verrilli did discuss the anomalies of healthcare economics in this exchange with Scalia:

I agree he discussed it, but what do you think about the manner in which he discussed it? If you were a skeptical Supreme-Court justice, would Verilli's discussion persuade you?
 

Related Topics

 
Copyright © 2020 MadLab, LLC :: Terms of Service :: Privacy Policy :: Page generated in 0.03 seconds on 08/05/2020 at 05:22:53