Obamacare's individual mandate, the heart of the law which makes the guaranteed issue (can't reject people for pre-existing conditions) and community rating (can't charge sick people more) work, appears on its way to being struck down. Scalia, Alito and Thomas are clearly against it, while Ginsburg, Kagan, Sotomayor and Breyer definitely for it. That leaves Roberts and Kennedy as the deciders. If either one voted in favor of the law, it would stand, but both expressed significant reservations about the constitutionality of the mandate during oral arguments yesterday. CNN's legal analyst and former Harvard Law Review editor Jeffrey Toobin said this morning he believes the individual mandate is "doomed".
Both Roberts and Kennedy seem to think that the individual mandate is an unprecedented expansion of government power. This is unfathomable to me, given the realities of Social Security and Medicare. It's settled that, if the government wants, it can take your money and set up massive federally-run systems with it. It can throw you in jail if you refuse to give up this money (payroll taxes). But the court appears on the verge of saying that the government can't require you to spend your money with the provider of your choice. It seems obvious that the mandate is less of a use of government power than Medicare. So why is Kennedy talking about the mandate as if it's a step down a slippery slope?
Roberts asked the government's lawyer if the government could use the precedent potentially set by upholding the mandate to force people to buy cell phones for use in calling 911 in an emergency. The difference here is that there is not a biological certainty that you will eventually need to call 911, as there is a biological certainty that you will need health insurance.
More generally, it's unbelievable that health insurance for 30 million people can be eliminated after only 6 hours of public discussion. Multiple reporters present for the arguments yesterday noted that the government's lawyer coughed at the start of his presentation, and apparently it "threw him off his game". If one guy having a tickle in his throat matters, the system doesn't work. It's too high stress/high stakes of a situation to be a good way to come to the right decision.
We'll see how it goes. Maybe Kennedy or Roberts were just looking for reassurance of what they already think. But I'm definitely not feeling good about things at the moment.
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2 comments:
Well, first of all, Toobin is an idiot. He said something like, "Well, today it was like the justices just assumed that striking down the mandate was a foregone conclusion." Well, considering that's what they were supposed to do. The days arguments were designed to deal with the possibility that the mandate could be struck down. That they made that assumption does not mean that it definately will.
I've been struck at how different the government's case has been from what I expected it to be. With the whole broccoli question, I thought the better argument would have been for them to say, "Well, since the market for broccoli stretches across the country, the interstate commerce clause would mean that it would be constitutional for the government to force you to buy it, but that's ok. It's perfectly constitutional for the government to do all kinds of terrible things, for instance set income tax rates at 100%, but it doesn't do that because the political implications would be disasterous. Just because something maybe harsh or radical doesn't necessarily mean that it is unconstitutional. The court can't defend the country from all bad laws, only unconstitutional ones." But instead they did everything they could to show how the insurance market is different than any other kind of argument, which didn't pass the old supreme court test of simplicity. Their argument was so complex that it gave the conservative justices all the room they needed to be able to strike down the provision.
That being said, I actually think that the court will uphold the law...which I would LOVE to tell you about over chicken wings sometime soon!
I agree about the "100% income tax thing. That's pretty much the answer Elena Kafan gave to the broccoli question during her confirmation hearing. I wonder if the Solicitor General figured he knows Kagan will make that argument in private and decided to go another way?
I'm in for wings (er, well, eating vegetables while you eat wings). Shoot me a call/text/whatever
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