SCOTUS and Affordable Care Act

[Rocketman95]

Originally Posted by basso crucial distinction is the government does not force you to drive.

Government doesn't force you to get sick either.

[basso]

Originally Posted by Rocketman95 Government doesn't force you to get sick either.

but they charge you (under ACA) whether you do or not.

[pouhe]

Originally Posted by basso w/ the exception of defense, the rest are all local/state issues, not federal. crucial distinction is the government does not force you to drive.

Even crucialler and more distinctuously, you won't die from not driving.

[Air Langhi]

Originally Posted by basso w/ the exception of defense, the rest are all local/state issues, not federal. crucial distinction is the government does not force you to drive.

So the Federal Government doesn't pay for the roads?

[basso]

Originally Posted by Air Langhi So the Federal Government doesn't pay for the roads?

Not all roads. And again, there is no driving mandate.

[Air Langhi]

Originally Posted by basso Not all roads. And again, there is no driving mandate.

I agree the mandate is pretty dumb. Hopefully it forces Obama into offering Universal Healthcare, which I know you republicans hate.

[HI Mana]

Originally Posted by basso but they charge you (under ACA) whether you do or not.

Would you support the repeal of the Emergency Medical Treatment and Active Labor Act?

[Rocketman95]

Originally Posted by basso but they charge you (under ACA) whether you do or not.

Lot of Bruce Willises out there.

[basso]

Originally Posted by HI Mana Would you support the repeal of the Emergency Medical Treatment and Active Labor Act?

I'm not familiar with either act. How do they bear on the PPACA?

[Agent94]

Originally Posted by HR Dept Through taxes the gov forces Americans to pay for: -Schools and teachers regardless of whether or not they have children.

Schools are mostly paid for locally although they get some federal and state grant money. In Texas, school districts levy property taxes to pay for the schools. Each state can fund schools as they see fit.

-Police and Fireman whether they use thier services or not.

Again, these are paid for locally. How they get funded depends on where you live. It could be city, county or even volunteer.

-Roads, highways, and public transportation regardless of if/when one uses them.

Again mostly state taxes, except for interstate highways. The building of roads is a right enumerated in the constitution.

-Stadiums and arenas. Wars, ships, plains, and guns. Public defenders...

This is a real mishmash. Stadiums and arenas are locally funded. Wars, ships, planes, etc are federally funded. Again this is in the constitution.

If you drive a car the law requires that you purchase, from a private sector entity, automobile insurance. The law also requires vehicles to be inspected for safety, one must purchase this inspection from a private sector entity.

State laws.

In order to hold a concealed hadgun license, one must take a course and past a test. Typically offered by a private sector entity.

Another state law.

[Cohete Rojo]

Care. Medical Care. Health Care. Sometimes I wonder if people know the difference. It is funny that Democrats act as if war are indebting this country beyond its means and Republicans act as if food stamps are indebting this country beyond its means. Though I think both are right: food stamps for war profiteers need to go. Bazinga!

[Refman]

Originally Posted by Major I believe the argument that the government made was that the transaction is the use of the health care system - insurance is simply the method of payment. So their claim is that everyone uses the health care system regardless, and that is what is being regulated. Whether that has any merit, I have no idea.

So, if I live in Houston, and go to a doctor in Houston for a check up, where is the interstate commerce?

[Sweet Lou 4 2]

Originally Posted by Refman So, if I live in Houston, and go to a doctor in Houston for a check up, where is the interstate commerce?

Because your insurance company won't necessarily be in the state of Texas.

[Northside Storm]

This case is an interesting application of the Commerce clause that holds some precedent for how the Obamacare case should shake down---

http://en.wikipedia.org/wiki/Gonzales_v._Raich

Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), was a decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal purposes.

of course, witness the opinions here and how quick they will change depending on party scripture. Of course, way back when, the Federal government didn't turn into Skynet, so I expect it won't now.

The starting point for the Court's opinion was the fact that it was conceded that Congress had the power to control or ban marijuana for non-medical uses: Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress' commerce power. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents' challenge is actually quite limited; they argue that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause. Banning the growing of marijuana for medical use, the Court reasoned, was a permissible way of preventing or limiting access to marijuana for other uses: Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

LOL. If homegrown weed meant for home consumption can be regulated by the Commerce Clause because it has a "significant effect on supply and demand" in "national markets", you can bet your ass insurance policies offered across the states can be too.

The interesting sidebar of---the Republican national agenda tells me to bury drugs, but I hate the Commerce Clause---

Scalia's opinion Justice Scalia wrote a separate concurrence that had the effect of differentiating the decision from the previous results of United States v. Lopez and United States v. Morrison. Although Scalia voted in favor of limits on the Commerce Clause in the Lopez and Morrison decisions, he said that his understanding of the Necessary and Proper Clause caused him to vote for the Commerce Clause with Raich for the following reason: Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”

Give Thomas this, he dissented.

[Major]

Originally Posted by Refman So, if I live in Houston, and go to a doctor in Houston for a check up, where is the interstate commerce?

I'm not sure. I believe the Commerce Clause has been used for non-interstate commerce in weird ways in the past too. But you could argue that the payment system - insurance - crosses state lines, people use health care in other states, etc.

[basso]

Some useful background on what to expect tomorrow:

Federal appeals courts have ruled repeatedly on challenges to the new federal health care law, with conflicting results.* Now, it is the Supreme Court’s turn, to sort it all out.* It has selected four issues for review, and is expected to release*its ruling shortly after 10 a.m. Thursday.** An earlier post, found here, discusses the Court’s options.* The following post provides a guide*on*how to read the results when they emerge.* The blog will post a link to the full*ruling during*our Live Blog as soon as it becomes electronically available Thursday.* It also will be available on the Court’s website.* Traffic on both sites will be heavy.

——————————

Supreme Court decisions are issued in a predictable format.* What they say, though, is*far from predictable.** And, with the decision expected Thursday in the health care case, figuring out what it says will be complicated by the*near-certainty that the Court will not be unanimous.* While an opinion that speaks for a majority — that is, at least five Justices*– will be the one that controls the bottom line (what is actually decided),*any added opinions may better illuminate or even limit the scope of the outcome or, in fact,*help to create multiple outcomes.* Indeed, a case can be decided with less than five Justices agreeing on the reasoning, but at least that many have*come together on the bottom line.* That makes it even more important to find out what is in the separate opinions.


Obviously, then, this can be daunting, even for one who has experience in reading Supreme Court opinions, but especially for someone encountering an opinion for the first time.** Fortunately for both regular and new readers,*there is almost always a very helpful and much shorter discussion of what has been decided, and it comes out with the opinion itself — indeed, it makes up the opening pages of the *document.* It is sometimes called the “headnote,” but the Court calls it a “syllabus.”** Whatever its name, its function is clear: to describe, in dependably accurate terms, what the Court has decided and how the Justices have voted.* (People depend upon it to say what the Court has decided, but lawyers and lower court judges have to rely upon what is in the Justices’ opinions, not the headnote rendition, because the headnote is essentially a tip sheet, not a part of the ruling in any way.)

If the Court rushes out an opinion, it might not have a headnote with it.* But, with the health care decision having been under study for three months, there very likely will be a headnote.* It will have a quite brief opening section that provides background facts about the controversy, and briefly recites how lower courts ruled on it.* The thing to look for next is the truly vital part of the headnote: it usually begins with the word “Held,” written in italics, followed by a colon.** That is supposed to*tell, in brief form or in several paragraphs,*just what legal conclusion or conclusions were drawn by the controlling number of Justices.

If at least five joined in one line of reasoning that decided what was “held,” that is the majority opinion and it controls.* But if fewer than five used*reasoning that helps decide what was “held,” that*will be spelled out, after listing the Justices who agreed with it.* That is what is called a “plurality” decision.* Then there will be a recital of the reasoning of any other Justice, or Justices, who were persuaded to reach the same legal result but with different reasoning.* That, too, will list the names of those who agree with that rationale.* Together, that combination of two groups of Justices adds up to a majority, but only their*agreed*legal result is controlling, not the reasoning.* (Lower courts are left to figure out which line of reasoning to follow in applying the legal outcome in later cases.)

As the headnote recites the reasoning behind any legal conclusion, it often will use language that is actually in the Court’s opinion, but usually without quoting it verbatim; paraphrasing is standard.

Unfortunately, for the joy of reading sharply worded dissenting opinions, the headnote will not give the reasoning used by dissenters; it will only list the Justices who dissented.** The same is true for Justices who had their own reasons for supporting the result — in other words, they “concurred” in the result, but for their own reasons.* Their names get listed in the headnote, but not their rationale (unless, of course, their votes were necessary to convert a plurality into a majority).

Now, for the coming decision on health care, comes the real complication — in the headnote and in the Court’s opinion or opinions themselves — because there is not just one issue at stake; instead, there are four.

If the Court majority or plurality speaks through one opinion, on all four issues, there will have to be multiple discussions that start with the word “Held.”* The first could be what the Court “held” on whether it had the authority at this point to decide the constitutionality of the individual mandate to buy insurance or face an IRS penalty.* If the answer to that is that the Court did have power to decide the mandate’s fate,*the headnote will then move on to another “Held.”

That next one*likely would be the Court’s bottom line* on the mandate’s validity.**If the mandate is upheld,*there won’t be a “Held” on the fate of the remainder of the law, because all but one of the many other provisions of the new law*have not been challenged separately, so if the mandate survives, they do, too.**The one exception to that is the new law’s broad expansion of eligibility of the poor to sign up for medical insurance under the federal-state Medicaid law.* The*constitutionality of that has been challenged separately, so the Court has to rule on it even if the mandate is upheld.

If the mandate is struck down, there would have to be another “Held.”* It could say that the Court has decided to nullify everything else, too** That would be the simplest outcome, but the most devastating one because not one phrase or sentence of the huge law would remain intact if that is the bottom line on this point (this is called the severability issue).* But it also could say that the Court has decided only to nullify select parts of the remainder of the law, and perhaps state those in summary, or spell them out a little more fully.* That could be quite complex.** Then there probably would*be another “Held” for the Medicaid expansion alone, saying whether it is valid or not.** The states challenging that provision have made different arguments from those they used*to challenge the mandate.

For those readers who venture beyond the headnote, the majority*opinion (or, if it is a “plurality” opinion) may start with a fairly brief paragraph or two that summarizes what has been held.* One, however, cannot depend upon that being the opening, because some opinions keep the suspense open for a bit, summarizing it a bit later on.**But after the opening, the majority or plurality opinion is likely to follow a common format: background on facts and lower court rulings, and then point-by-point discussion of the questions being decided, with a full explanation of the reasons for the bottom line.* Along the way, there will be a recital of the reasons the challengers used to make their points, and the reasons the defenders used to answer.*The Court will say what its own reasons are.* *And there could be comments answering points that have been made by dissenters.* (Often, responses to dissenters are recited in footnotes, not in the body of the opinion.)

In the health care opinion (if there is a controlling one, either for a majority or a plurality),*it may follow the same sequence as the headnote on the “Held” points.* First could come the discussion of whether the Court has jurisdiction, under the Anti-Injunction Act, to decide the validity of the mandate.* If it finds such jurisdiction, it will then move on to the discussion of the pros and cons of the mandate, and choose an outcome.* If it finds that the Court does not have jurisdiction, the opinion will say why, and there would then need to be no discussion of the mandate or of the other parts of the law — except the Medicaid expansion.* Any challenge to the mandate thus would be put on hold until the mandate went into effect in 2014 (if not repealed by Congress in the meantime).

After that would come the Court’s discussion of the*Medicaid question.

What will seriously complicate the understanding of the Court’s ruling — on any of the four issues about the new law — will be whether the Court had to put together different combinations of Justices applying differing lines of reasoning in order to get enough votes for a bottom line, on each of the four issues.*** There could be Justices who think the mandate is valid, but that the Court does not have jurisdiction to decide it, or vice versa.* There could be Justices who want to strike down the mandate, but not all of its provisions, whereas others would cast aside the whole law, from end to end.

Another complicating point now enters.* Recall that the Court is not engaging the four issues as if it were the first tribunal to do so.** What is actually before the Justices is a ruling of the Eleventh Circuit Court, based in Atlanta.** That court’s decision included these “bottom lines,” or holdings:*it struck down the mandate (which meant it had accepted that*it had jurisdiction to review the mandate’s validity), and it ruled that*every other part of the new law remained intact, including the Medicaid expansion.

The different bottom lines to which the Supreme Court will be aiming are those three — jurisdiction, mandate, and the fate of the rest of the law — plus the fourth, separately: the Medicaid expansion.* Thus, the Supreme Court’s bottom lines will say whether it*agrees or disagrees with (affirms or reverses) the Circuit Court’s bottom lines.* There could be differing combinations of Justices who come together on each of those bottom lines.

The headnote will be very helpful in sorting out those combinations.* But for the reader to be confident of understanding*how the Justices were arrayed, it will be a good idea to read all of what the Justices have written — and perhaps to have at hand*a notepad or a computer to tote up the voting alignments section by section and issue by issue.

*

Posted in Nat'l Fed. of Ind. Business v. Sebelius, H.H.S. v. Fla., Fla. v. H.H.S., Analysis, Featured, Health Care, Merits Cases

Recommended Citation: Lyle Denniston, A reader’s guide to health care ruling, SCOTUSblog (Jun. 27, 2012, 1:25 PM), http://www.scotusblog.com/2012/06/a-...h-care-ruling/

[Kyrodis]

Originally Posted by basso I'm not familiar with either act. How do they bear on the PPACA?

EMTALA requires hospitals to provide emergency healthcare to anyone regardless of their ability to pay. By prohibiting hospitals from discharging patients until they've been stabilized (or unless they consent), but not giving them an avenue for reimbursement, some would argue it's the reason health care costs have skyrocketed.

[basso]

Originally Posted by Kyrodis EMTALA requires hospitals to provide emergency healthcare to anyone regardless of their ability to pay. By prohibiting hospitals from discharging patients until they've been stabilized (or unless they consent), but not giving them an avenue for reimbursement, some would argue it's the reason health care costs have skyrocketed.

And how does this law bear on the questions before the court? Did the government cite this statute in it's arguments? If not, why not?

[Sweet Lou 4 2]

The entire law will be struck down tomorrow in a 5-4 decision. It will cement Roberts legacy not as an activist judge - that's not accurate, but rather as the most partisan SCOTUS in perhaps modern American history.

As a judge you said he was against bitter partisan 5-4 votes, he's been in the majority of all of them. And, he has voted to champion conservative (tea party) causes in 90% of rulings.

He has shaped American politics for generations. The conservative court before Roberts appointed George Bush president, and now the have fundamentally changed how elections will happen, providing a big boost to republicans by letting them tap unlimited corporate money, to give them more power than actual real people.

The health care decision is done. And Americans already see the SCOTUS as a Republican institutions. Only 44% approve of the court, an all time low below that of Obama. And only 1 in 8 people feel the court makes decision based on legal analysis vs. personal political opinions.

So people see the Court as a partisan part of gov't, something that wasn't true 30 years ago.

The polls want the heath care law overturned. And I see the SCOTUS as merely another populist instrument, i think Roberts will manage things to have the whole thing thrown out - it is his legacy at stake, and the easiest way for him to be celebrated is to make the public and his conservative friends/supporters happy.

[basso]

More background:

Liberals claim that to strike down Obamacare would run counter to decades of Supreme Court precedent about the scope of the congressional power to regulate commerce among the states. Conservatives, while unenthusiastic at best about the precedents, argue that to affirm Obamacare would go beyond them. So how should this case be distinguished from those precedents?

Michael Greve’s new book The Upside-Down Constitution, which I recently reviewed for NR, provides a compelling answer: Unlike the governmental actions at issue in those previous cases, this one involves a commandeering of individuals that cannot be considered “proper” under the Constitution. His argument is that most of the cases we file under the heading of the “commerce clause” would better be analyzed as “necessary and proper clause” cases. He begins with Gonzales v. Raich, a 2005 case affirming the power of Congress to prohibit the cultivation and possession of marijuana even for non-commercial distribution within a state.


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Justice Scalia concurred in that result, which has led people who have not read the opinion closely to assume he might vote to uphold Obamacare. Writes Greve:
Justice Scalia observed that purely local, noncommercial activities, aggregated or not, cannot possibly be interstate commerce. The question is whether the federal regulation of those activities is necessary and proper to the regulation of that commerce. . . . The central inquiry . . . is whether the federal regulation of some activity, regardless of its “economic” or purely in-state nature, is nonetheless “necessary and proper” to the regulation of commerce among the several states. Each part of that inquiry has, or should have, independent meaning.

Greve then quickly summarizes the implications of this approach.

Wickard, despite its preposterous analysis, was rightly decided: grant Congress the power to limit the interstate supply of wheat and other commodities, and the power to suppress local evasion follows directly, albeit depressingly. On the limiting side, neither the Gun Free School Zones Act in Lopez nor the civil remedies provision at issue in Morrison was plausibly related, let alone necessary, to anything having to do with interstate commerce. Thus, even on very deferential judicial premises, the decisions were right. Raich turns out to be a hard case: is the prohibition against the mere possession of marijuana — neither commerce nor interstate — nonetheless “necessary” to a legitimate Commerce Clause objective and a set of interstate transactions? Plainly, Congress may suppress the shipment of marijuana and other drugs into states that do not want them. But the effect of local marijuana cultivation and consumption, under state-imposed restrictions, may be sufficiently remote to warrant the inference that the federal prohibition was simply targeted at suppressing policy competition among states (which differ greatly with respect to their “medical marijuana” policies). Justice Scalia deferred to the judgment of Congress; Justice Thomas believed not a word of it and therefore dissented. Reasonable minds will differ about the outcome and the appropriate level of judicial scrutiny, but at least they will differ over the right question.

But necessity is not the end of the analysis. Assuming that the individual mandate in Obamacare is “necessary” for carrying into execution the power of Congress to regulate commerce among the states, is it “proper”? The structure of the Constitution suggests a negative answer.

Federal laws generally presuppose some affirmative private act as a predicate for compelling further private actions; and the constitutional provisions that suggest a federal authority to “commandeer” private parties are few, institutionally cabined, and calculated to ensure the operation of the government’s own institutions (such as the armed forces and the jury system) — not, as under [Obamacare], to protect the profitability of private corporations. The form in which the government exercises its authority counts a great deal in the “proper” analysis.

The parallel that jumps out is to Printz v. United States, the 1997 case in which the Court — with Justice Scalia writing for the majority — held that the federal government may not commandeer the states, as provisions of the Brady Act, a gun-control law, had attempted to do. In this case the Court found that the constitutional structure implied the impropriety of congressional means of imposing its will.



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Nor do the parallels end there. As has often been observed of the individual mandate, Congress had alternative means of achieving its end. (Congress could, for example, condition states’ receipt of federal funds on their cooperation in the gun-registration scheme.) The Constitution prohibits the states from doing many things, but only allows Congress to issue affirmative commands to the states in specified instances. This pattern implies the presumptive impropriety of additional commands.
The apparent point is to ensure, to the extent any constitution reasonably can, accountability. The constitutional baseline is that the federal government should not be able to blame the failure of its regulatory schemes on poor implementation by the states, and states should not be able to blame their administrative failures on unrealistic demands by the federal government. The Constitution cannot prevent governments from bargaining around this baseline to frustrate this goal, but it can force some transparency on the process.


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In limiting commands from the federal government to individuals, the Constitution serves similar purposes. Congress cannot keep the costs of its ideas for health-care policy off the budget by simply ordering individuals to pick them up. Liberals have noted the supposed irony of the fact that a single-payer program would survive the constitutional scrutiny now being brought to bear on the mandate. The constitutional rule at issue nonetheless limits government by forcing Congress to confront the costs of any such scheme.
In this context Akhil Amar’s recent argument for the constitutionality of Obamacare can be seen to miss the point. Amar notes that the Militia Act of 1792 forced individuals to procure arms. Amar rather oddly assumes that the act was passed pursuant to the Second Amendment’s stipulation that the militia be “well regulated”; therefore a command can be a proper regulation. In actuality (as Adam White points out) the act was passed pursuant to Congress’s Article I power to call forth, arm, and organize the militia. And the fact that the Constitution explicitly allows the government to issue affirmative commands to individuals in highly limited circumstances does not argue in favor of the proposition that it has a general power to issue such commands; it argues against that proposition. (The militia clauses, incidentally, further suggest the parallel between commandeering of individuals and of states, as they authorize both.)

In sum and in short: The constitutional line of propriety runs between proscription and prescription. None of the New Deal cases, whatever one thinks of them, moves that line. And the mandate falls on the wrong side of it.

— Ramesh Ponnuru is a senior editor at National Review.