Obamacare Showdown: Preview, Part 3
This is the third in my series of posts about the major issues at stake in next week’s arguments at the Supreme Court regarding the constitutionality of Obamacare, or, the Affordable Care Act (ACA). Yesterday, I discussed the “individual mandate,” the part of ACA that creates a legal duty to obtain health insurance. Yes, the government has some arguments up its sleeves and, sadly, can rely on some New Deal-era precedents, as well as more recent cases (like the medical marijuana case, Gonzales v. Raich) to support the mandate. But of course, I think the opponents of the mandate have the better of the argument.
If the Court does strike down the individual mandate, what happens to the rest of ACA? The law is over 2,700 pages long – suffice it to say there’s a lot in there besides the individual mandate. However, the individual mandate is the part that is supposed to make the whole thing affordable. By requiring younger, healthier individuals to get health insurance, ACA aims to broaden the insurance pool and thus bring down premiums. (Of course, many others have pointed out that Obamacare will do no such thing; in fact, premiums are rising in anticipation of 2014 ... but I leave the policy arguments aside for now).
It’s very common for federal statutes to include a so-called “severability clause,” which states that if any provision of the law is found to be invalid, the rest of the law will continue in operation. But the ACA does not have a severability clause, so there is no clear answer as to whether Congress intended the healthcare law, or parts of it, to survive even without the individual mandate. In one ruling, Senior U.S. District Judge Roger Vinson held that Congress intended all of Obamacare to hang together. Therefore, since Vinson found the mandate was invalid, he also concluded that the entire statute must fall. On appeal, the Eleventh Circuit agreed that the individual mandate is unconstitutional, but the Court held that the rest of the ACA could survive. The fact that Congress failed to insert a severability clause, said the Court, is not decisive. At SCOTUS, the states' briefs have generally picked up Judge Vinson's argument that the components of the ACA are too inter-connected to be upheld if the mandate is struck down.
The administration, as usual, is tripping over itself. On Tuesday it will argue that the mandate is "necessary and proper" because it is an integral part of a "comprehensive regulatory scheme" to regulate the market for health insurance. But on Wednesday, the mandate will suddenly be not so integral to the whole scheme, but will instead be a free-floating provision that can be severed from the rest of the law.
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Jan '11
Re: Obamacare Showdown: Preview, Part 3
I hate to, but must mention an op-ed from Linda Greenhouse, the (former) NY Times legal editor. It's rhetoric at its smallest, but it does reflect the way "They" are thinking.
Greenhouse, as poor thinkers do, latches onto one tangent and wallows in it. In this case, she spends considerable ink mocking the opposition's description of the mandate as "unprecedented." She then heroically defends the notion that something unprecedented could be worthwhile. How brave!
She then mangles the issues: "The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually ..."
No. The mandate is intended to eliminate free riders who can afford to pay, so that their premiums will cover the poor who can't. Greenhouse is using the cost of the free healthcare received by the poor to accuse non-buyers of "costing us $43 billion." The non-buyers cost very little compared to what it costs to cover the poor.
Jul '11
Re: Obamacare Showdown: Preview, Part 3
Excellent point KC. Adam, thanks for the breakdown. It has helped considerably. I have no faith in the system at all but those who do should pray for it to work. There are three national issues this November that I am watching too. The senate, the white house and California's soak the rich initiatives( I consider that a national issue). I want them to either all go for conservatism or all go against it rather than a mixed bag. Obamacare's constitutionality will set the tone.
Edited on March 23, 2012 at 2:45amRe: Obamacare Showdown: Preview, Part 3
Thanks KC. Logic is not Greenhouse's strong suit. Doc Jay - agreed. But of course, the mainstream media is doing its best to argue that a decision striking down Obamacare will actually be bad news for conservatives because....well, because then we'll have to decide what we want to "replace it." Yeah, what an awful position to be in.
Oct '11
Re: Obamacare Showdown: Preview, Part 3
Yeah, or there's the strange idea that repealing Obamacare would be bad because then conservatives wouldn't turn out to vote in November. I think that's debatable, but I'd rather get Obamacare thrown out as unconstitutional and then take our chances in November than have it upheld as constitutional, that's for sure.