Will SCOTUS overturn HCR?
If Meghan McArdle’s projections are correct, you better hope not.
Maybe it would be better to defund it if possible in 2011, get some intelligent stopgap (is that an oxymoron?) measure in there, and then repeal the earlier bill in 2013 and replace it with one that emphasizes realistic private sector solutions that make sense, knowing that a perfect system can never be designed.
Good luck. What a mess, with no end in sight.
But I think we’re helped in our endeavor by seeing what’s happening to welfare states in Europe right now. The health care solutions offered by the left seem more fiscally dangerous than ever. Will the right step up to the plate? And will the voters give up pie in the sky?
No need to look across the pond. As Sally Pipes writes today in New York Post, “The future of US medicine under ObamaCare is already on display in Massachusetts.
Read more: http://www.nypost.com/p/news/opinion/opedcolumnists/mass_health_meltdown_is_your_future_qA65Dx77kppzP5lHJN23pN#ixzz0oyGh616O“
“We know what happens if the court simply invalidates the mandate: you get New York State, where the cost of insurance spirals out of control, until the few remaining people in the individual market are so sick that the death spiral bottoms out. “
Perhaps someone can explain McCardle’s rationale? Why would this necessarily happen? Is it that if everything else stays, this is the result? If the SCOTUS overturns the individual mandate as unconstitutional (which it is) why can’t the whole thing be rescinded?
Here’s the best explanation I’ve yet seen for why the individual mandate is unconstitutional:
Senate Storm Warning
“If Obamacare is upheld by the Supreme Court, it will be the end of limited government in this country.”
http://article.nationalreview.com/print/?q=ODU3ZDk1MTk0YTVlYjI5MzIxZDFkYTFiMDIxNjg1ZmY=
Geoffrey- I believe the statute likely has some sort of severability clause whereby if one section is struck down, the rest remain in effect. I’m not willing to search through the law to verify, but I think that is the likely answer.
Megan does not weigh the political effects of the Court striking down the provision; it might give full repeal even more momentum simply because the consequences are so disastrous.
As comments to the McArdle piece indicate, the problem is that the individual mandate requirement appears to be “severable.” Thus, invalidating the individual mandate will leave the rest of the monstrosity intact. The Frogleg comment, in particular, claims that the severability clause is found in Section 155 of the HCR.
LB100: I haven’t read the comments to McArdle’s post. But if the clause is severed, the bill becomes economically impossible. Of course, it always was, but now it becomes obviously so on the face of it, because the individual mandate is supposed to fund it. So, what would happen then?
I don’t agree with McArdle either. Charting the political future though a landscape of what-ifs is an absurd exercise. She leaves out/ignores lots of players, such as the burgeoning number of docs 1) leaving Medicare (to say nothing of ‘Caid), 2) providing very economic, cash pay only, services (which slashes office overhead by doing away with legions of insurance filers).
Without the individual coverage mandate/fine, the entire house of Obamacare cards crumbles financially. And that’s not a bad thing.
“And will the voters give up pie in the sky?”
Not the Democrats, their left-wing politics are their religion now; just like for the muslims, whose religion is all about their brand of politics. That’s how and why the left and the muslims are intimately linked now, and Burack Obama is their “point” man… It’s strictly a demographic contest from now on…
The end of limited government in this country?
Its already at an end. Our stats our so close to those of Greece and the rest of the EU so what’s the difference? Merely the fact that alot of people just aren’t aware of the fact. And the ship that is “enumerated powers” sailed away more than 60 years ago.
The argument that an “inactivity” cannot be regulated is not that hard to overcome. Since inaction (refusing to pool your money with others) has consquences as well as action, inactivity can easily be defined as something which can be regulated under the commerce clause.
And why should logic matter? Given the right set of justices anything can happen. Roe v Wade or Wickard v. Fillburn demonstrate that rationalization can be substituted for argument and imposed to reach a result.
Neo-
I don’t know the intracacies of the HCR (too depressing to contemplate), but another comment to the McArdle piece (Bob Lyman) claims invaldiation bring a New York style system: “. . . in the unlikely but interesting event that SCOTUS does invalidate the mandate, we get NY until the politicians do something.”
The end of limited government in this country?
“Its already at an end. Our stats our so close to those of Greece and the rest of the EU so what’s the difference? “
Not to entirely dismiss your point Curtis but doesn’t limited government include more than just economic factors?
There is, after all the small matter of the Constitution and even though progressives are trying to move from hobbling it to completely eviscerating it, perhaps we shouldn’t acknowledge their victory quite yet?
“why should logic matter? Given the right set of justices anything can happen. Roe v Wade or Wickard v. Fillburn demonstrate that rationalization can be substituted for argument and imposed to reach a result.”
Yes, those cases do demonstrate that to be so. However logic does matter to many, such as Republicans, Conservatives, Libertarians, a number of Independents and even a few life-long, ‘old school’ Democrats. Which means that everyone has a ‘line’ the crossing of which is intolerable… Radical liberalism, or whatever we call it, must cross that line for far too many. We are rapidly approaching that ‘tipping point’ in which the consensus is rapidly emerging that, “enough is enough”…
So, perhaps it’s not so late that all hope must be abandoned?
Commercial clause ans state rights are obviously incompatible. Any state legislative act has at least some effect on interstate commerce, so every such act can, in principle, be nixed by federal government. Unless commercial clause being severly cut to size so only very narrow its interpretation considered legitimate, state rights already is a fiction. It is well known fact that bad cases create bad laws, and Civil Rights Act, however necessary it was in his time, made a big hole in integrity of American constitutional law.
Sergey: “Any state legislative act has at least some effect on interstate commerce, so every such act can, in principle, be nixed by federal government.” Your logic is correct, but that’s not how the law developed.
Parker v. Brown, 317 U.S. 341 (1943) was all about federal regulation of interstate commerce. It established an important exemption from the Sherman Antitrust Act for state governments, which exemption is long-established, often cited, good law.
In a nutshell: In 1940, 95% of the raisins sold across America were produced in California (probably still true). So many farmers had gotten into the business, producing so many raisins, flooding the market, lowering the price, that nobody was making any money and the industry was failing. The California legislature passed a law creating an agricultural marketing program for raisins that restrained competition among the raisin growers by establishing production quotas. That restricted the supply of raisins in interstate commerce — which raised the price of raisins and preserved the raisin growing industry of California. Unquestionably, this program as mandated by state law was a violation of federal antitrust law. So, some producers sued.
The issue was whether the Sherman Antitrust Act had pre-empted all other legislation in that area. The Court noted that “Occupation of a legislative ‘field’ by Congress in the exercise of a granted power is a familiar example of its constitutional power to suspend state laws,” citing a lot of precedents.
However, the Supreme Court found “nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature.” Significantly, the Court said “In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.”
I’m pretty sure that every state in the union has a department that regulates the commerce of health insurance. None of these state bodies, except Massachusetts, have mandated that people purchase health insurance. But as Massachusetts illustrates, they could. Even if the Court were to (absurdly and dangerously) find that the inactivity of not purchasing health insurance constitutes “commerce,” that inactivity is already controlled by the states. I don’t think the HCR expresses any purpose to nullify the control of that area of “commerce” by the states.
Thanks GB! I’d like to say I am not abandoning hope. I’m just getting started.
My hope isn’t to merely remain entrenched, but to take back territory. Hence the idea that what we need to take back is limited government. While we have a good corp of right thinking people, the government isn’t one of those places and the government, especially the federal government, is not “limited” as that term is constitutionally understood.
However, good things are happening especially with the younger generation who now, in the majority, oppose abortion, feel they have been shafted by the government, and will turn more conservative as events show the lie of big government’s promises. Whether that process will be allowed to occur without some sort of coup or takeover–that’s the question.
Big irony for the democrats: We stand strong on immigration, abortion, and economic growth. In twenty years, they all vote republican because they are a conservative group.