Affordable Care Act Supreme Court Hearings this week

[RIROCKHOUND]

Originally Posted by Jim in CT

That it hasn't been proposed doesn't mean it's unconstututional, that's why we have the Supreme Court.

So, if the SCOTUS upholds it as constitional, and you agree with it in principal, would you then support 'Obamacare'?

[scottw]

I feel bad for the Solicitor General...must be rough being laughed at in the Supreme Court when you are trying to defend landmark legislation...

someone mentioned Justice Thomas, I don't know about questions he asked or didn't ask but I'm sure he was wondering how it is possible that this legislation was signed by a President who some claim was a Constitutional scholar of some sort and sworn to uphold and defend the Constitution....passed by a Congress(needing every trick in the book employed) made up of many people with legal backgrounds and sworn, I think, to uphold and defend the Constitution,.... and now argued by a guy who, I guess, is supposed to have some knowledge of what he is arguing with regard to the Constution....

[detbuch]

Originally Posted by Jim in CT

The constitution is a list of enumerated powers. It specifically lists powers granted to the federal government, and it specifically says that everything else is left to the states.

I agree with you about what the Constitution says. But what judges say is often different than what the Constitution says. There is a famous "footnote" in the history of U.S. Constitutional jurisprudence. Footnote 4 written by Justice Harlan Stone for the 1938 U.S. vs Carolene Products which was used later to allow government to legislate against "unenumerated rights" of the People and for the non-enumerated powers of government so that Federal Government regulations would be reviewed on a "rational basis scrutiny." If government could show an even remotely rational basis for the legislation, regardless of any factual presentation or lack thereof, it would be upheld.

Having these types of things mandated by the feds might be more consistent and fair. However, the constitution doesn't say that it can be ignored to promote fairness or consistency.

You're right, the Costitution doesn't say so, but judges that have been educated in modern law schools are steeped in a progressive view of "instrumentalist" interpretation. That is, the Court is not simply a referee of Constitutional rules, but judicial decisions should be instrumental in achieving certain social goals or by treating all legal doctrines as instruments or means of serving the social objective that the judge deams appropriate. Several theories are used as a basis for such interpretation such as "realism," "monumentalism,"cognitive jurisprudence,"rule according to higher law," and "universal principal of fairness."

Johnny D is exactly correct, the analogy of auto insurance is a terrible analogy, because no one is forced to drive a car, and many peopl are not impacted by auto insurance requirements because they don't drive (lots of folks in big cities don't drive, and thus can avoid buying auto insurance without penalty). Obamacare requires every single human being to enter into a contract with a private company. Nothing like that has ever been proposed, I don't think. That it hasn't been proposed doesn't mean it's unconstututional, that's why we have the Supreme Court.

Actually, several people have been exempted from the mandate. But, when you argue with a progressive, you do so with someone who views "fairness," "equality," and equitable distribution of pain and gain through a centralized authority above any Constitutional consideration. When you point out that legislation may be unconstitutional, you will either get no response, or be led into a discussion of fairness, equity, or some contrived model of economic advantage. And usually, if not always, the instrument or means to achieve the goal is the Federal Government, which begs the question--are States necessary or are they (as well as the Constitution) an obstacle to good, efficient government?

[Jim in CT]

Originally Posted by RIROCKHOUND

So, if the SCOTUS upholds it as constitional, and you agree with it in principal, would you then support 'Obamacare'?

I support the notion that no one who gets sick, through no fault of their own, should have to suffer financially. I'd support a plan that solves that issue in an efficient way. I don't know if Obamacare does that. And there's a lot more to Obamacare than the individual mandate. If Obama was serious about reducing medical costs, and he is not, then he would have included tort reform as part of Obamacare. He won't do that, because his party is in the pocket of the Trial lawyers lobby.

Obama has attacked the health insurance industry, as if their whopping 6% profit margins are the problem. That's just ideological BS for the Spences of the world, just like his current war on the wealthy.

[Jim in CT]

Originally Posted by detbuch

Actually, several people have been exempted from the mandate. But, when you argue with a progressive, you do so with someone who views "fairness," "equality," and equitable distribution of pain and gain through a centralized authority above any Constitutional consideration. When you point out that legislation may be unconstitutional, you will either get no response, or be led into a discussion of fairness, equity, or some contrived model of economic advantage. And usually, if not always, the instrument or means to achieve the goal is the Federal Government, which begs the question--are States necessary or are they (as well as the Constitution) an obstacle to good, efficient government?

Very well articulated, sir!

[mosholu]

Detbuch:
I believe all judge's decisions regardless of the time period are informed by their own political beliefs and inclinations and if you look at the Supreme Court there have been periods where different ideologies have held sway with different degrees of impact.
General comment:
If in fact the idea that mandating health insurance by requiring those who do not have it to pay a penalty fee then I think that the issue becomes one of restructuring the law so that those who do not have health insurance pay a higher rate of tax or there is a deduction of the cost of that insurance for those who have paid for the insurance. One of the big problems with health care that is behind the heath insurance law is that the uninsured do not have the means to gain access to preventive medicine and over time they in turn result in larger payments for all users of the health care system in the US. While adding another deduction/credit to the tax goes against my idea that deductions should be eliminated and all rates reduced the "tax" objection to the bill seems to me one that could be worked around.

[spence]

Originally Posted by RIJIMMY

no, I dont.
Nor do I know anyone who didnt use food stores, some form of transportation, eat at restaurants or buy toilet paper.

Big difference, with all of those items there are already set costs. The argument made by the Administration is that the price of health care is heavily influenced by how one pays for it.

-spence

[spence]

Originally Posted by Jim in CT

Once again you miss the point entirely. It doesn't matter, as far as the constitutionality of the law is concerned, that everyone will use healthcare at some point.

It matters because if people are going to use health care they are going to participate in interstate commerce regardless if they're paying for it or not. If everybody is participating then there's no real argument that someone can really opt out.

Jim, I actually read the entire transcript from yesterday...have you?

-spence

[detbuch]

Originally Posted by spence

Big difference, with all of those items there are already set costs.

The price of all those items do not have a "set cost." A great portion of the costs are a result of various government regulations and taxes. The price of manufactured goods have built-in tax and regulatory costs that range all the way from the production or growth of the basic materials required to manufacture the final product including the regulations and payroll taxes and social security and medicare and local and state taxes that each of those producers pay and are part of the price of material they ship to the ultimate manufacturer, and the same costs are included in the companies that transport the materials to the ultimate manufacturer, and the same costs that the ultimate manufacturer has to pay its employees again all added to the cost of the product and often the same government costs that private shippers pay and are part of their fee to deliver to retail outlets and, finally, the retail outlet has the same types of governmental regulatory and payroll taxes, etc. that factor in to the final price of the product a great portion of which can be the accumulation of all the taxes and regulations payed along the way to manufacture and sale. It has been estimated that 50 to 60% of the price of manufactured items is in the taxes and fees paid overall. And various localities have different regulations and tax structures as well as differing levels of clientele for products so that prices of the same goods are different in different places, and there are sales and clearances and fluctuating economic conditions that affect the prices. Prices for most products have been rising lately due to multiplicities of factors, not the least of which is government intrusion

The argument made by the Administration is that the price of health care is heavily influenced by how one pays for it.

-spence

The price of health care is also very heavily influenced by government regulation and mandate. In the case of the Federal Government, much of the mandates are unfunded. It was the Federal Government, in the first place, that forced hospitals to accept emergency patients that have no insurance. It is Federal regulation and collusion that artificially raises the price of drugs to be much higher than necessary. And if the government thinks that a mandate can require uninsureds to pay for insurance, that means it believes that those people could have purchased insurance before the mandate, so it shouldn't have forced hospitals to accept them unless they payed for the uninsured health care they received just as any customer must pay for the product it buys in any other transaction. And the force of local laws would be sufficient for such transactions. As for those that cannot afford to buy insurance, won't their costs still be shifted to those who are insured, even if the government picks up the tab for them in which case the cost is shifted to the tax payer. And isn't the so-called shift in costs that occurs now overestimated--the article that I posted in the other thread relates a study that estimates the cost shift not to be $1,000 for an average policy, but an annual cost of about $80. So the government creates problems, then expands its power in order to "solve" the problems--in this case with a "solution" that is even more expensive for most, and in the same stroke changes the fundamental relation of the individual to the government. Government power expands, individual freedom contracts. But it is all for the better and is more efficient, and the power of government pervades into all aspects of our economic lives, which is virtually all aspects.

If all commerce can be "regulated" by the Federal Gvt., which this mandate would give it the power to do, I ask again, in this thread, for the fourth time, are States and the Constitution necessary? Are they not obstacles to efficient centralized government? Would it not be better to just abolish them?

[detbuch]

Originally Posted by mosholu

Detbuch:
I believe all judge's decisions regardless of the time period are informed by their own political beliefs and inclinations and if you look at the Supreme Court there have been periods where different ideologies have held sway with different degrees of impact.

Not as much as one would conclude by how the Court has adjudicated for the past 75 years. The period between the FDR Court to now is the time when adherence to the text of the Constitution was deliberately discarded in favor of desired political outcomes. There are various reasons for that, the main being the prevalence of progressive philosophy in our universities and educational institutions and the efforts of progressive politicians which culminated in the FDR administration all-out attack on the Constitution. This is all well documented and easily researched. That only "radical" Tea Party types and conservative talk radio, and "radical right wing" politicians discuss it, is due, again, to how our elites in the media, and the rest of us for that matter, have been educated, and the gradual acceptance of generations of the status-quo. Current generations have known only this, and accept it as correct.

Though there were some differences in Constitutional interpretation before FDR, they were not major deviations from the Constitution and the greatest problem was the slavery issue. Not that there were not attempts to expand Federal power beyond Constitutional enumerations, some of which may have succeeded to some degree, but there was no great (except for slavery) disagreement on Constitutional authority between those of opposing parties. Even Grover Cleveland, a Democrat, vetoed hundreds of bills (I think it was hundreds--it was a lot) because he considered them to be unconstitutional. Judges were not forced to consider a barrage of assaults on the Constitution because there weren't that many. And when they adjudicated, there was far more faithfulness to Constitutional text and intention.

[Jim in CT]

Originally Posted by spence

It matters because if people are going to use health care they are going to participate in interstate commerce regardless if they're paying for it or not. If everybody is participating then there's no real argument that someone can really opt out.

Jim, I actually read the entire transcript from yesterday...have you?

-spence

Spence, in your previous post, you didn't make a reference to the Commerce clause. you implied that the individual mandate was justified because of how many people participate in healthcare. I was reacting to what you posted.

[detbuch]

Originally Posted by spence

It matters because if people are going to use health care they are going to participate in interstate commerce regardless if they're paying for it or not. If everybody is participating then there's no real argument that someone can really opt out.

Jim, I actually read the entire transcript from yesterday...have you?

-spence

No, most health CARE is not interstate. Some products that are used may have crossed state borders and such products can be "regulated"--whatever that means. But the actual care, unless the hospital is straddling a border, is usually intrastate, not interstate. A great deal of health care is only consultative with no products being used or exchanged. In any event, the B R O A D, expansive, "interpretation" of "commerce," "regulate,." and "interstate," is not justified in the text of the Constitution, neither was it intended according to the extant documents of ratification and explanations given in letters and statements later by the founders. But that is, apparently, not important to you. Valid arguments about what such broad interpretation and the power it grants to the Central Government, and the fundamental change in the relation between the citizen and the government also seem to be of no importance to you. What seems to matter only is a solution to a problem regardless of what precedence that solution gives to government to "regulate" every aspect of our lives. No matter even that much of the problem is created by government in the first place--the same government that presumes to fix it. Nor does it seem to matter to you that the solution, along with the train of solutions over the past 70 years, destroys the foundation, the structure of limited, representative government built specifically to ensure individual lilberty, and replaces the structure with an amorphous, unlimited administrative apparatus. An apparatus that will replace individual sovereignty and more "efficiently" solve all our "collective" problems. I ask again, of what use are 50 different State governments and an unadhered to Constitution to such an apparatus?

[scottw]

Originally Posted by spence

It matters because if people are going to use health care they are going to participate in interstate commerce

-spence

it was statements like these and other tortured definitions of convenience that found the Solicitor General being laughed at on the floor of the Supreme Court the last few days.

from : MOTHER JONES

Obamacare's Supreme Court Disaster
—By Adam Serwer

The White HouseSolicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.

Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism's biggest domestic accomplishment since the 1960s—and one that may well have doubled as its eulogy.


that's from BIG Obamacare supporters

[scottw]

Originally Posted by detbuch

If all commerce can be "regulated" by the Federal Gvt., which this mandate would give it the power to do, I ask again, in this thread, for the fourth time, are States and the Constitution necessary? Are they not obstacles to efficient centralized government? Would it not be better to just abolish them?

clearly, based upon statements by people here, the answer is either.."no", the States and the Constution are not necessary in their minds/views ....or....."maybe", but they are so woefully uninformed on States Rights and the Constitution that these considerations never enter into any of their arguments

it's depressing........fortunately, it's been shown the last few days that you can try to argue around and around the Constitution and logic and common sense, but it's tough to argue through it...


Madison- Federalist #45
"The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."


JUSTICE KENNEDY: "And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way."


interesting, this would appear to represent, and I think what is really the essence of the "Fundamental Change" that we were promised by this President, which may/should be a change that he has no authority to promise

[justplugit]

Originally Posted by scottw

it's depressing........fortunately, it's been shown the last few days that you can try to argue around and around the Constitution and logic and common sense, but it's tough to argue through it...

Gotta luv your statement.
Common sense is not so common.
It comes from an open mind, experience and practical knowledge.

[Mr. Sandman]

“Fathom the hypocrisy of a Government
that requires every citizen to prove
they are insured....


but not everyone must prove they are a citizen.”