Archive for Thursday, March 29, 2012

Supreme Court appears split by ideology over health care

March 29, 2012


— Concluding three days of fervent, public disagreement, a Supreme Court seemingly split over ideology will now wrestle in private about whether to strike down key parts or even all of President Barack Obama’s historic health care law. The justices’ decision, due this June, will affect the way virtually every American receives and pays for care.

The court wrapped up public arguments Wednesday on the overhaul, which is designed to extend health insurance to most of the 50 million Americans now without it. The first and biggest issue the justices must decide is whether the centerpiece of the law, the requirement that nearly all Americans carry insurance or pay a penalty, is constitutional.

Wednesday’s argument time was unusual in that it assumed a negative answer to that central question. What should happen to other provisions, the justices and lawyers debated, if the court strikes down the requirement? If the justices are following their normal practice, they had not even met to take a preliminary vote in the case before all argument concluded.

Questions at the court this week showed a strong ideological division between the liberal justices who seem inclined to uphold the law in its entirety and the conservative justices whose skepticism about Congress’ power to force people to buy insurance suggests deep trouble for the insurance requirement, and possibly the entire law.

The divide on the court reflects a similar split in public opinion about the law, which Congress approved two years ago when Democrats controlled both houses. The justices’ decision is sure to become a significant part of this year’s presidential and congressional election campaigns, in which Republicans have relentlessly attacked the law.

Both liberal and conservative justices appeared on Wednesday to accept the administration’s argument that at least two important insurance changes are so closely tied to the must-have-coverage requirement that they could not survive without it: provisions requiring insurers to cover people regardless of their existing medical problems and limiting how much those companies can charge in premiums based on a person’s age or health.

Less clear was whether the court would conclude the entire law, with its hundreds of unrelated provisions, would have to be cast aside.

The justices also spent part of the day considering a challenge by 26 states to the expansion of the federal-state Medicaid program for low-income Americans — an important feature which alone was expected to extend coverage to 15 million people and which no lower court has rejected.

Solicitor General Donald Verrilli Jr. took a few seconds at the end of the Medicaid argument to make a final plea for the court to uphold the entire law, which he said would “secure the blessings of liberty” for millions of Americans by providing them with affordable health care.

Verrilli told the court that Congress had made a policy decision to fight the high cost of medical care through the new law. “I would urge the court to respect that judgment,” he said.

Paul Clement, the lawyer for the states challenging the law, retorted that it would be a strange definition of liberty to make people who may not want it buy health care insurance. And he called Congress’ threat to cut all Medicaid funding from states that refuse to expand the program “a direct threat to our federalism.”


just_another_bozo_on_this_bus 5 years, 11 months ago

This case has more to do with hardball politics than it does ideology. That's why there is so much discussion about taking the whole thing down, not just the mandate-- an idea originally put forward by Republicans through the Heritage Foundation.

jhawkinsf 5 years, 11 months ago

If the Republicans are getting their inspiration from The Heritage Foundation, perhaps they are getting their inspiration from the Constitution. And while the Supreme Court Justices came from diverse backgrounds that give them differing points of view, let's hope they too are getting their inspiration from the Constitution.

just_another_bozo_on_this_bus 5 years, 11 months ago

Oh, they'll dress it up with constitutional trimmings, but in the end, this is about raw politics first (it's an election year) and big money a very close second-- the insurance companies had no problems with Obamacare as long as they got their mandate. But if the mandate goes down, the whole thing goes down.

And the Republicans would like to see Medicaid go away completely. It's much easier to give the wealthy tax cuts if we just let the poor, the disabled and the elderly suffer and die.

jhawkinsf 5 years, 11 months ago

Putting this particular issue aside, I suspect you're like most people who, when the court makes a ruling that they agree with, praise them for following the Constitution and doing the "right" thing. But should they make a ruling that you disagree with, they become ideologues, puppets, lackeys of whatever special interest that is driving the debate. You're now a member of the 100%.

"they'll dress it up with constitutional trimmings" - They're the Supreme Court. Every decision they make, and every decision they don't make, is dressed up in constitutional trimmings. Like a chef who keeps making "food". What else would you expect?

Paul R Getto 5 years, 11 months ago

True. I loved it when they asked the guy representing the states if it was a coincidence that all of them suing had Republican governors.

Richard Payton 5 years, 11 months ago

If the bill fails what's next a bill for more medicare additions. Now that would be socialized medicine wouldn't it?

jhawkinsf 5 years, 11 months ago

Listening to NPR while driving yesterday, they spoke about a provision in this bill that would increase Medicaid by 44%. While 100% of the funding would come from the feds., should states choose not to participate, they would lose all Medicaid funding. Various states are arguing that the coercive nature of this has reached such an extreme, that it is itself an overly broad mandate being placed on the states. As a member of the 50% that does indeed pay federal income tax, I would like to say that a 44% increase seems very high. It seems to me that my burden will likely go up with that high a jump. If a 44% increase is really necessary, something I'm not convinced of, but if it could be reasonably argued that it is necessary, then I would be in favor of the increased tax burden be shared by everyone. Everyone.

Paul R Getto 5 years, 11 months ago

Not that I know of, but we already have DP's. They are called insurance actuaries.

Kristine Bailey 5 years, 11 months ago

Why did the Senate take out the Sever Ability Clause? Either they were playing chicken with the Courts, or they were they were so full of themselves they thought they could do no wrong.

Windemere 5 years, 11 months ago

I like the idea of a safety net in the abstract. And am not an expert on this bill or the complicated issues of health care & insurance. But seems to me that a lot of people have legitimate fears about 1) how Obamacare opens the door to increased power of the federal govt to affect our personal lives and choices 2) how easy/cheap it is for individuals to pay a fee and skirt the system (and still get "free" healthcare when they need it, since no one is turned away at emergency rooms) 3) how there simply is not enough of an incentive for people to lead healthier lives, and Obamacare makes that problem worse (I have a problem paying for the healthcare of people who chose unhealthy habits and to the extent that Obamacare leads to that, it's bad) and 4) that our country has not yet tried to makes changes that could allow a more free market-oriented solution to work, e.g. allowing insurance companies to sell policies freely across state lines. When one makes something "free" demands goes up and often supply goes down. And when one introduces more competitiion to a market, usually prices go down. Can't we get back to fundamentals and try to have a less heavy-handed, Federal govt top-down way to addressing health care?

Cait McKnelly 5 years, 11 months ago

"The GOP Healthcare strategy: pray a lot." I fully expect this to go down 5 to 4 along party lines just as Citizens United did. Then Clarence Thomas' wife will get a big fat bonus check and they will go buy another vacation home. Ironically, Scalia bi***ed about reading the 2700 pages of the AHA. This came in from a friend: "Many lawyers like myself worry that the Supremes will have to revive precedents dating to 1937 and 1942 to overturn the AHA. Google "Wickard v. Filburn" to see how much Right-Wing Extremists say about Wickard. They Hate It, which shows you how Extreme they really are."

jhawkinsf 5 years, 11 months ago

"Many lawyers like myself worry that the Supremes will have to revive precedents dating back to 1937 and 1942 to overturn AHA."
Does it really matter if we go back to 1937 or 1942? Does it really matter if we go back to 1787?

Cait McKnelly 5 years, 11 months ago

Yes it does matter. If the Supremes reach that far back to justify what they do then they place a lot of law- good law, decided in the last 70 years, in jeopardy. You wish to go back to 1786 when slavery was legal? Then go for it.

jhawkinsf 5 years, 11 months ago

Brown v. Board of Ed. went back 58 years, reversing Plessey. Are you saying that was in error? Or are you saying 58 years is fine, but 70 is not?

Cait McKnelly 5 years, 11 months ago

Brown was decided under the Fourteenth Amendment, not the Commerce Clause. Your argument doesn't wash.

Paul R Getto 5 years, 11 months ago

Should be an interesting 5-4 vote one way or the other. If they go 'activist' they will have to overturn lots of precedents, but they did that with Citizens United. Perhaps this is an activist conservative court after all?

jhawkinsf 5 years, 11 months ago

Not all precedent need be upheld. Separate but equal was the law of the land, until it wasn't. In that case, the pendulum had swung too far one way and the Supreme Court rightfully swung it back the other.

Cait McKnelly 5 years, 11 months ago

As was pointed out to me, "separate but equal" was decided under the Fourteenth Amendment, not the Commerce clause. You're arguing apples and oranges.

jhawkinsf 5 years, 11 months ago

I never intended for my comment to be limited to just the Commerce Clause. I was speaking generally of Supreme Court precedent. Interestingly, stare decisis comes to the public's attention most often now when Supreme Court nominees go before the Senate and it is asked most often in regards to Roe, a topic I know you are interested in. And while all nominees say they hold the concept of stare decisis in high regard, I doubt they would ever declare that principle as absolute.
Sometimes, a reversal of precedent is necessary.

kugrad 5 years, 11 months ago

It is sad that this case will likely be decided on politics and not the rule of law.

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