Federal Judge Strikes Down Part of Obamacare Law

[Mech_Engineer]

In my opinion, Social Security IS unconstitutional. Problem is, there are so many people invested and dependent on it it's hard to think of a way out. It's the elephant in the room no one wants to talk about; it's day will come though, probably when it goes into chatastrophic bankruptcy (as it is it's just started paying out more than its bringing in...)

My plan for getting us (as a country) off Social Security:

1. New workers enetering the marketplace do not have to pay for SS. Instead, they get tax breaks for 401k or other individual retirement savings plans.
2. Current workers (like me) that have paid some into SS but are more than 10 years away from retirement can pull out their SS investments as tax-credits on their returns, up to some maximum per year until they're out. This money can be invested in an IRA or 401 for a significant tax benefit. It will cost the gov't money yes, but that's the price we pay for getting into such a mess.
3. Retirees currently on SS (or people close to retiring) can keep their SS benefits as promised by the government. They were told they could depend on it, and that commitment will be honored.

15-20 years from now, problem fixed. Move on.

 

[CRGreathouse]

15-20 years from now, problem fixed. Move on.

Those would be a painful few years...

 

[Mech_Engineer]

Those would be a painful few years...

Who says they aren't already painful? We need to start soon: it will come down to a set amount of pain, either in one big bang, or spread out over a few years.

 

[CRGreathouse]

Who says they aren't already painful? We need to start soon: it will come down to a set amount of pain, either in one big bang, or spread out over a few years.

I have no personal objection to your plan: it would benefit me. But I'm concerned about those who would just miss the cutoff, as well as the years in which the government has funding obligations but no income stream for it.

 

[Mech_Engineer]

I have no personal objection to your plan: it would benefit me. But I'm concerned about those who would just miss the cutoff, as well as the years in which the government has funding obligations but no income stream for it.

And what about 20 years down the road when SS is bankrupt and the gov't has financial obligations to everyone?

 

[russ_watters]

Thanks for the response. So, any problem with constitutionality might be resolved if healthcare were nationalized?

Yeah, it worked for SS, right?

If the USSC does rule this unconstitutional, I wonder if Dems will push for such a "fix".

[edit: not correct] Unlikely, since if they thought they could get it they already would have - and they tried it in the '90s. But that's always been the ultimate goal, has it not? Ted Kennedy referred to it as "the cause of my life": http://www.newsweek.com/2009/07/17/the-cause-of-my-life.html

 

[russ_watters]

In my opinion, Social Security IS unconstitutional.

As a matter of law and current fact, it had its day in court and was ruled Constitutional. As a matter of history, the interpretation under which it was ruled Constitutional seems to be far more liberal than the founders would have concieved-of. But either way:

Problem is, there are so many people invested and dependent on it it's hard to think of a way out.

More to the point, old people vote and young people don't and old people are getting paid to vote for keeping SS unchanged. If there's a better example of leaning on the throttles when the bridge is out ahead, I've never heard of one.

It's the elephant in the room no one wants to talk about; it's day will come though, probably when it goes into chatastrophic bankruptcy (as it is it's just started paying out more than its bringing in...)

The reality for people who are retired now or will retire soon is that they will see SS largely unchanged until they die. The reality for someone in their 20s and 30s is they are being told by financial advisors to invest and plan for retirement under the assumption that they'll get nothing from SS. While I am well aware of that reality, it is difficult to swallow simply handing-over such a huge fraction of my pay to others. Old people are stealing from me!

My plan for getting us (as a country) off Social Security:

Retirees currently on SS (or people close to retiring) can keep their SS benefits as promised by the government. They were told they could depend on it, and that commitment will be honored.

15-20 years from now, problem fixed. Move on.

We're on the same page except for this one. Everyone should make sacrifices and even if we slash the benefits for current retirees and up the retirement age in advance of a phase-out, their sacrifice will still be substantially less than ours.

Those would be a painful few years...

Who says they aren't already painful?

They're not half as painful as they will be if we don't start making changes. Right now, we're accelerating toward the ravine and massive changes will be required to prevent the economic collapse rivaling the Great Depression.

 

[Zefram]

Is anyone familiar with the health IT component of of the American Recovery & Reimbursement Act?

Yes. I'm pretty familiar with the HITECH Act.

 

[Gokul43201]

Those would be a painful few years...

For which of those three groups (plus the one missing group in M_E's list, namely workers less that 10 yrs from retirement) do you think this period would be painful?

It is trivially unpainful (relative to status quo) for group 3, and I don't think it is necessarily more painful for group 1 than any subsequent period. I have no opinion (for now) on the pain inflicted upon group 2 (and the missing group 2.5).

Edit: Missed post #74. There's just too many posts to read!

 

[Mech_Engineer]

We're on the same page except for this one. Everyone should make sacrifices and even if we slash the benefits for current retirees and up the retirement age in advance of a phase-out, their sacrifice will still be substantially less than ours.

The way I see it, the only way to completely remove the "you hate retirees on fixed incomes" counter-argument is to leave them supported, and phase-out anyone that isn't yet dependent on SS because they made no other retirement plans...

 

[Ivan Seeking]

What should be done about people with conditions that preclude them from being insured? If they can't afford care that will manage their condition (e.g. diabetes, high blood pressure, whatever), then it is likely they will end up in a very expensive emergency room situation at some point, effectively on the taxpayers' dime.

There are two ways to reduce this cost: either all laws forbidding emergency rooms from turning away patients should be repealed, and let these people die on the street, or provide them with some sort of coverage that they (1) are entitled to buy and (2) isn't priced so high that they are unable to buy it.

You can do this one of two ways: either by requiring the private sector to cover these people (with government subsidies if necessary); or offer a public option. The latter was dead in the water before it even got started. As a result, we got the rather mediocre Obama plan which no one seems to like very much and which may even be unconstitutional.

Or we kick the can down the road for another 20 years (and say "too bad" to those who need coverage and can't get it), just like we did when Hillarycare failed.

Which is a key issue and one the opponents of Obamacare continually ignore.

 

[Ivan Seeking]

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.

 

[Vanadium 50]

One could argue that such conditions should be tested for prior to birth, and if found, offer an abortion, but I think many opponents of Obamacare wouldn't like that very much, either!

Offer? Why not require? The legal theory here is that the government can mandate that an individual purchase a service. In for a penny, in for a pound.

 

[russ_watters]

I would add that no one is forced to buy health insurance under Obamacare. That characterization is false.

That characterization is how it was sold to the public and the court. Seems to me like you're arguing against reality.

 

[Mech_Engineer]

I would add that no one is forced to buy health insurance under Obamacare. That characterization is false.

Buy health insurance, or pay this fine. This sounds like being forced into healh insurance to me...

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 point isn't that I want to give people a free ride, I advocate personal responsibility. The government shouldn't have the responsibility to take care of us a) because people should be free to do what they want and live with the consequences, and b) if the gov't can FORCE us to buy health insurance (a private product) what can't they force us to buy? What if a few years down the road they use the same argument to make everyone buy hybrids in the name of global warming?

 

[talk2glenn]

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.

Indeed. And no one is forced to not drive drunk, either. However, they are charged for their risk to society for doing so.

This argument is inane. In the real world, it is now a matter federal law (with enforcement beginning in 2014) that every American obtain acceptable, to the United States government, private health insurance. If you do not, you are breaking the law, and subject to civil penalty.

This is reality.

At least have the sensibility to acknowledge that before proceeding with your arguments. Reminds me of the silliness of the "can Assange be charged" thread.

 

[Al68]

Indeed. And no one is forced to not drive drunk, either. However, they are charged for their risk to society for doing so.

Failure to meet a government requirement is equivalent to driving drunk? Horrible analogy. Especially when the penalty imposed is for failure to meet specific arbitrary requirements, not for any demonstrated risk to society.

And no, my failure to disclose my private business to government does not constitute such a demonstration.

This argument is inane. In the real world, it is now a matter federal law (with enforcement beginning in 2014) that every American obtain acceptable, to the United States government, private health insurance. If you do not, you are breaking the law, and subject to civil penalty.

This is reality.

At least have the sensibility to acknowledge that before proceeding with your arguments.

What are you talking about? 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.

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.

 

[mheslep]

This is probably an extremely silly question (and it comes without reading the ruling of the Fed Court, so it's also a lazy question): how is forcing someone to buy health insurance any more unconstitutional than forcing them to (for instance) purchase social security through a tax?

Your question is astute, not silly, and is discussed in the opinion. The government's argument in the case was two fold: i) the commerce clause gives the government the power to compel purchase of health insurance, and judge if you don't buy that, then ii) this requirement is really a tax, even though the government denied this in the discussion leading to the creation of the health care act, and the power then comes from the general welfare clause and the power to tax:

On a third front, the Secretary defends the Minimum Essential Coverage Provision as a valid exercise of Congress's independent authority to lay taxes and make expenditures for the general welfare. Contrary to earlier representations by the Legislative and Executive branches, the Secretary now states unequivocally that the Provision is a tax, published in the Internal Revenue Code, and enforced by the Internal Revenue Service

The judge answered both in the brief: no you don't have the authority under the commerce clause and no this is not tax.

 

[turbo]

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.

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. Hospitals will because they would like to provide fewer free services to indigent patients, who drive up ER costs with non-emergency complaints, for one. Also, hospitals would love to have everyone that walks in the door be able to provide a card proving some level of coverage from a payer that they can bill, even if that coverage won't pay for all the costs of treatment.

The one that will surprise conservatives who haven't been thinking this through is the health-insurance companies. I believe they will file amicus briefs for the mandate because the mandate will get them 10s of millions of new clients. Clients that would re-fuel the drive to create a real public option if there is no other reasonable way to get coverage for them. Also, the insurance companies are well-aware that if people are allowed to opt into Medicare, as a way to address this situation (a real possibility that has been suggested before) the experience level of the Medicare pool and the average treatment costs will fall, since younger, presumably healthier people would join up. Neither situation would be good for their profits.

Ultimately, how all this will turn out will rest on the opinions of a very few people in the court system.

 

[Mathnomalous]

The one that will surprise conservatives who haven't been thinking this through is the health-insurance companies. I believe they will file amicus briefs for the mandate because the mandate will get them 10s of millions of new clients.

Good lord, thank you for pointing this out.

 

[mheslep]

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

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.

Ultimately, how all this will turn out will rest on the opinions of a very few people in the court system.

A very few people being nine and only nine judges. As it should be. So with that acknowledgment hopefully we can dispense with discussion of how The Man is going to rig the outcomes, at least here.

 

[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.