# Obamacare faces Supreme Court Challenge



## a_majoor (6 Apr 2012)

Notice the tone being taken with the Supreme Court of the United States (one of the three co-equal branches of government according to the US Constitution) now that Obamacare is facing serious challenge and in danger of being ruled against. Of course politics is a huge factor in this, if Obamacare is struck down the President has literally nothing to show for three years in office, and of course the possibilities oof richly rewarding friends and punishing enemies through control of 1/6 of the US economy would vanish as well.

The revival of constitutional principles has already been previously seen with Supreme Court support for the US Second Amendment, if they rule against Obamacare on Constitutional grounds (the limits of the Commerce Clause) then we might expect longer term challenges to other laws and programs on the basis of the US 10th Amendment (the Enumerated Powers clause)

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.":

http://www.nationalreview.com/blogs/print/295410



> *Obama v. SCOTUS*
> By Charles Krauthammer
> April 5, 2012 8:00 P.M.
> 
> ...


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## cupper (6 Apr 2012)

Like several pundits who closely follow the Supreme Court said the day after oral arguments were completed, no one has ever made money betting on the final decision based on what happened during oral arguments.

I'll wait for the decision to come down in June.

And for what it's worth, in my opinion, the Obama Administration went too far too soon, trying to fix everything at once.

BUT they also didn't go far enough, by not bringing in a single payer system.


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## a_majoor (6 Apr 2012)

Since the SCOTUS is going to rule based on the constitutional provisions, rather than any real or imagined benefits of the law itself, we should focus on that issue. One thing which was rather embarrassing was how weak the actual grounding of Obamacare was (the "Individual Mandate" essentially saying there were no limits to the Commerce Clause). Even worse was the endlessly repeated factoid that the President had once lectured on Constitutional Law, so should have quickly identified the danger:

http://www.breitbart.com/Big-Government/2012/04/04/Former-Obama-Student-Obamas-Ignorance-of-Constitution-Embarrassing



> Former Obama Student: Obama's Ignorance of Constitution Embarrassing
> 
> Prof. Thom Lambert of the University of Missouri Law School has responded with alarm to President Barack Obama's attack on the Supreme Court and the power of judicial review by recalling his own days as Obama's student at the University of Chicago.
> 
> ...


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## cupper (7 Apr 2012)

Thucydides said:
			
		

> Since the SCOTUS is going to rule based on the constitutional provisions, rather than any real or imagined benefits of the law itself, we should focus on that issue.



If only that were true. The Court considered 4 issues over three days of arguments.

Day 1 was devoted to the question of standing, and whether the "taxing" provisions could be challenged before they came into effect

Day 2 was devoted to the individual mandate and the commerce clause

Day 3 was devoted to two issues: first, could the rest of the law be separable from the individual mandate; and second, can the federal government unilaterally expand medicaid coverage without consent of the states.

What I find humourous in this latest uproar is the fact that it seems that only the conservatives can comment and criticize the courts over what is perceived as judicial activism. Bush has a whole bunch of Greatest Hits where he calls out judges that overruled his administration on various issues.


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## vonGarvin (7 Apr 2012)

cupper said:
			
		

> What I find humourous in this latest uproar is the fact that it seems that only the conservatives can comment and criticize the courts over what is perceived as judicial activism. Bush has a whole bunch of Greatest Hits where he calls out judges that overruled his administration on various issues.



My google-fu must be off.  I can't find any articles where Bush "calls out judges that overruled his administration on various issues."


Could you help me out here?


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## Edward Campbell (7 Apr 2012)

Technoviking said:
			
		

> My google-fu must be off.  I can't find any articles where Bush "calls out judges that overruled his administration on various issues."
> 
> 
> Could you help me out here?




Try this, TV.


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## cupper (7 Apr 2012)

Thank you Mr. Campbell. I was afraid that I would have to resort to posting a link to the Daily Show and lose all cred.


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## Edward Campbell (7 Apr 2012)

All it proves is that Obama is just a big a dipstick as Bush ever was.


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## vonGarvin (7 Apr 2012)

In that first clip, G.W. Bush says that "new laws" ought not to be created by the courts, but they ought to stick to interpreting the constitution.  Second clip, same thing (complaining about judges making laws instead of interpreting them).  Third clip: "servants of the law, and not legislate from the bench".  

In the current bruhaha, President Obama said "I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."  Forget for a moment that the law was passed by a majority of seven (7), the court is currently attempting to see if the law passes the litmus test of being constitutional.  They are not creating new laws.  

So, that clip, though it makes for great sound bytes, is not even close to the same thing that Mr. Obama is saying.  Mr. Bush may be a dipstick, but in those clips, his complaint was of judges creating new laws, not of interpreting laws.  The Supreme Court of the USA has, as I understand things, struck down laws as being unconstitutional in the past, so this would not be an "unprecedented" step.


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## Edward Campbell (7 Apr 2012)

The business of "making law" from the bench goes back, at least, as far as Huburt de Burgh, who was was _justicar_ of England during the minority of Henry III, and the complaints sound just about the same ... nothing new to see here, folks, move along.


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## tomahawk6 (7 Apr 2012)

The issue here is Can Congress Require Citizens to Purchase Health Insurance ? The democrats never considered that their law could possibly be unconstitutional. Some democrats argue that state governments require operators of motor vehicles to have a license and insurance.If you dont want to drive ,you dont need a license or insurance. This was a bad law. Few read it. Last survey I saw showed 77% of the public against it. IF it is found to be unconstitutional there wont be rioting in the streets.

A better approach would have been to make it optional.Put everyone that wants the insurance either into Medicare or Medicaid [those under 55].Simple and straight forward.I like our current system and dont see a need for change.Remember that alot of state's have state sponsored insurance for those who dont have it.But its not free.


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## Brad Sallows (9 Apr 2012)

"Judicial activism" is not really at issue in this dispute.  "Judicial activism" is when a judicial branch reads in (creates) new laws.  A decision to vacate legislation created by a legislative branch is not "judicial activism".  I am frankly surprised at the calibre of intellect attributed to some of the public figures attempting to make the argument that "judicial activism" is afoot.

The closest this dispute might come to "judicial activism" is if the Court decides to vacate more than the provision in dispute, but less than the entire act (ie. if the Court attempts to decide what portion of the law can be salvaged while deciding what additional portions must be jettisoned).  And of course, part of what was gone over in oral argument was whether the Court should or even could (2,700 pages to comb over) attempt to do so.


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## cupper (9 Apr 2012)

And throwing out 100 years of election finance law in one fell swoop by granting corporations the same status as a person isn't judicial activism?

To quote Judge Judy: Please, don't piss on my leg and tell me it's raining.

The right claims judicial activism as creating new laws that appear to not follow their interpretation of the Constitution, the left claims judicial activism is overturning laws that are constitutional based on their interpretation of the Constitution.

The conservatives are pissed that the liberals are using their own line against them, and they can't say a thing about it without looking like complete hypocrites.


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## Brad Sallows (10 Apr 2012)

I think the corporation-as-a-person in law threshold was crossed a long time ago, and the Court doesn't get to make up cases: it generally waits for cases to be brought before it.

Judicial activism is when the bench usurps the role of the legislature: creating new law.  Overturning prior law and precedent is just business as usual.  Some argue for the involvement of partisanship, but good luck trying to draw boundaries around that (not as to the existence of partisanship - the judges are human - but rather as to proving the influence of partisanship, or trying to distinguish between partisanship and the honestly held belief in a particular interpretation of law).

The Court is, in fact, the interpreter of the Constitution.  Even the Democrats said so when questions of constitutionality of PPACA were raised during the legislative process.


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## cupper (10 Apr 2012)

Sooo...

When lower courts overturn voter initiatives banning same sex marriage, by deeming it to be unconstitutional, that's not judicial activism according to your definition?

(Careful.... It's a trap!)


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## Bird_Gunner45 (10 Apr 2012)

cupper said:
			
		

> Sooo...
> 
> When lower courts overturn voter initiatives banning same sex marriage, by deeming it to be unconstitutional, that's not judicial activism according to your definition?
> 
> (Careful.... It's a trap!)



I dont hear many dems whining about that particular ruling.  BOTH sides benefit from judicial rulings at certain times.  Obama just needs to suck it up and accept his wins (same sex marriage) with his losses (possibly health care)


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## Brad Sallows (11 Apr 2012)

I'm not sure exactly what you mean.  Are you referring to something that directly becomes legislation, or something that is the trigger for legislation to be developed?


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## cupper (11 Apr 2012)

Brad Sallows said:
			
		

> I'm not sure exactly what you mean.  Are you referring to something that directly becomes legislation, or something that is the trigger for legislation to be developed?



I'm referring to the judge who overturned Proposition 8 in California which eliminated same sex marriage, because it was found to be unconstitutional in that it discriminated against same sex couples.

Your argument was that the courts are not being activist when they strike down laws on the basis of being unconstitutional. They are only being activist when they interpret in such a way as to have the perceived effect of creating a new law.



			
				Bird_Gunner45 said:
			
		

> I dont hear many dems whining about that particular ruling.  BOTH sides benefit from judicial rulings at certain times.  Obama just needs to suck it up and accept his wins (same sex marriage) with his losses (possibly health care)



But you hear every socially conservative family values advocate screaming bloody murder about how this debases the concept of marriage, how the judge was not exercising judicial restraint, and was being an activist judge by over ruling the majority (slimmest of mind you) of the electorate who voted in favor of Prop 8.

And I'm not convinced that Obama personally considers any of the pro same sex marriage judgements to be a win. I think he'd rather not fight that fight and have Congress finally deal with it.


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## Bird_Gunner45 (11 Apr 2012)

cupper said:
			
		

> But you hear every socially conservative family values advocate screaming bloody murder about how this debases the concept of marriage, how the judge was not exercising judicial restraint, and was being an activist judge by over ruling the majority (slimmest of mind you) of the electorate who voted in favor of Prop 8.



And this is different from the Liberal cry/suckyfest that will occur if Obamacare is shut down how?  

The judiciaries job is to interpret the legality of laws.  Sometimes both sides try to overstep their bounds.  Sometimes it's good for libs, sometimes it's good for conservatives, but at all times it's good for democracy to have a check and balance.

That said, Obama, as a constitutional lawyer, seems to have a weak grasp on the constitution, which would be troubling to me if I were American.


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## ModlrMike (11 Apr 2012)

To get the discussion back on track:

I think the most pressing question is: does the government have the authority to tell the populace how and where to spend their money?

I say no. Others contend that the greater good trumps individual rights. Personally I think the most fundamental change to health care in the US should be tort reform. But that would require the lawyers who occupy the house and senate to agree... and how likely is that?


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## cupper (11 Apr 2012)

ModlrMike said:
			
		

> To get the discussion back on track:
> 
> I think the most pressing question is: does the government have the authority to tell the populace how and where to spend their money?
> 
> I say no. Others contend that the greater good trumps individual rights. Personally I think the most fundamental change to health care in the US should be tort reform. But that would require the lawyers who occupy the house and senate to agree... and how likely is that?



Tort reform has been shown to have only a minimal effect on overall health care costs. the CBO estimated that it would reduce the overall costs by about 0.5%

http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/106xx/doc10641/10-09-tort_reform.pdf 

A more realistic fundamental change should be moving to a federally regulated single payer system. It addresses many of the complaints on both sides. It provides for cost controls by limiting the pay outs. It reduces or eliminates the inherent administrative costs that exist in the current insurance based system. It eliminates the issues of coverage, portability and affordability. It would also allow the Federal Government to negotiate directly with the drug companies for pricing under Medicare and Medicaid.

Like I said previously, Obamacare (which, by the way the Dems are now using as a rallying cry rather than a derogatory reference) tries to do too much too soon, but missed the opportunity to resolve the biggest issues by going single payer.

And that is the fault of the Dems. They dismissed GOP efforts to amend the bill, opting to go it alone rather than work to get a lesser bill passed with bipartisan support. And here we are today speculating the outcome of the Supreme Court deliberations.


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## Brad Sallows (11 Apr 2012)

If Prop 8 was overturned for being unconstitutional, it doesn't look like judicial activism.  There may be dispute as to its constitutionality, but the entire point of the court system is to resolve disputes.

The Democrats were too chickensh!t to raise the necessary taxes, so the individual mandate was born.


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## tomahawk6 (11 Apr 2012)

The individual mandate is a funding mechanism.It is also the gateway to everyone being added to medicare or medicaid,depending on age.


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## cupper (12 Apr 2012)

Brad Sallows said:
			
		

> If Prop 8 was overturned for being unconstitutional, it doesn't look like judicial activism.



If it doesn't look like judicial activism, why is the right whining that it is?


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## a_majoor (12 Apr 2012)

cupper said:
			
		

> A more realistic fundamental change should be moving to a federally regulated single payer system. It addresses many of the complaints on both sides. It provides for cost controls by limiting the pay outs. It reduces or eliminates the inherent administrative costs that exist in the current insurance based system. It eliminates the issues of coverage, portability and affordability. It would also allow the Federal Government to negotiate directly with the drug companies for pricing under Medicare and Medicaid.



Given the rather alarming problems inherent in our "single payer system" (long wait times, lack of modern technology such as MRI and PET machines, drug shortages [exacerbated by bulk buys discouraging alternative vendors from going into the market], dirty hospitals, etc.) I would not advocate for that at all.

I have personal knowledge of this as well, my mother in law waited nearly a year just to see a specialist for joint replacement surgury (she is still waiting for the surgury date after the consulootation) and I have sat in an emergency room waiting room for hours with my daughter while she had a severe asthma attack. I'm pretty sure lots of other Army.ca members can attest to various horror stories as well.

The primary flaw in single payer is there is no visible connection between the patient and the provider, which eliminates most forms of incentive both ways. Patients can demand anything since they don't have to pay for it directly, while providers have few incentives to actually provide care; most health care funding in Canada seems to be eaten up by bureaucracy. How else can you explain the reletively static outcomes despite literally billions of dollars poured into "healthcare" over the years?


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## Edward Campbell (12 Apr 2012)

By its very nature any single payer system means rationing. It violates an individual's _right_ to use his private property (his money) for his own benefit.

Most European countries, especially the ones that have better medical outcomes and spend a lesser share of GDP on healthcare than does Canada, have mixed system: _universal_ public insurance covers everyone for most medically necessary services, but rationing is the (only available) tool to control supply in the face of essentially infinite demand; private insurance (or just gobs of cash for the super-rich) allows many (most?) Europeans to jump the public queue.

The very worst model for America is Canada; the very worst model for Canada is America. Europe offers some good models for both Canada and the USA; Singapore offers an excellent model for Canada but it is probably too _public[/u] for American tastes.
_


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## Brad Sallows (12 Apr 2012)

"Single-payer" does not have to mean "single-payer for everything" or "exclusive payer".

>If it doesn't look like judicial activism, why is the right whining that it is?

Because to a lot of folks, "judicial activism" = "I don't agree with/approve of the decision".  There is a thread discussing variations of what "judicial activism" means [at volokh.com].  It has become so widely interpreted in meaning that it is almost useless except as a pejorative like "facism" or "racist".  But of all the meanings, "I don't like the result" is simply banal.

[a link to the discussion would help]


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## cupper (12 Apr 2012)

Would you rather fight with your insurance company over the fact that the emergency room visit was not an emergency and therefore they won't cover it? Of have to submit several requests to get a medication that your doctor has prescribed, because you insurance company has a policy of denying initial requests hoping that you won't appeal it. Or have your insurance company deny your request because their medical reviewer says you don't meet any of the requirements for said prescription, even though your doctor has provided back-up that you do meet a sufficient number of those same requirements?

Having spent my first 36 years in the Canadian system, and the last 10 in the US system, I've seen both the good and the bad of both. The ideal is a single payer system, where the patient is partly responsible by either co-pays or paying a portion of the bill.


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## cupper (12 Apr 2012)

Brad Sallows said:
			
		

> "Single-payer" does not have to mean "single-payer for everything" or "exclusive payer".
> 
> >If it doesn't look like judicial activism, why is the right whining that it is?
> 
> Because to a lot of folks, "judicial activism" = "I don't agree with/approve of the decision".  There is a thread discussing variations of what "judicial activism" means.  It has become so widely interpreted in meaning that it is almost useless except as a pejorative like "facism" or "racist".  But of all the meanings, "I don't like the result" is simply banal.



I agree with you whole heartedly.    There must be something wrong. :dunno:


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## a_majoor (12 Apr 2012)

cupper said:
			
		

> Having spent my first 36 years in the Canadian system, and the last 10 in the US system, I've seen both the good and the bad of both. The ideal is a single payer system, where the patient is partly responsible by either co-pays or paying a portion of the bill.



Well now we have more than one payer  :nod:

Actually cupper, you have the essential outline of what I would see as a better way; the patient _does_ pay for basic services (ideally through withdrawls from a Registered Medical Savings Plan, similar in concept to an RRSP). Since the patient funds the RMSP themselves, they have incentives to keep the outflows to a minimum, which include living a healthy lifestyle, shopping for the lowest cost products and services and so on. The accumulated MRSP continues to grow, so if you start young you will ideally have a large enough nest egg to pay for your medical needs as you reach your years of declining health.

A free insurance market (eliminating the notions that your coverage is tied to your employer or you are limited to purchasing insurance from a small number of suppliers in your own state) would handle more intricate needs (much of the abuse of insurance may be tied to gaming the system, especially if they can get Medicare or Medicaid to pay vs the shareholders), and finally a layer of catastrophe coverage, which may or may not be government funded.

Eliminating the monster bureaucracy would mean the "capture" of taxpayer health care dollars would no longer take place, market forces would operate in a meaningful fashion and patients and providers would have positive incentives to change their behaviour.


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## cupper (12 Apr 2012)

Thucydides said:
			
		

> Well now we have more than one payer  :nod:
> 
> Actually cupper, you have the essential outline of what I would see as a better way; the patient _does_ pay for basic services (ideally through withdrawls from a Registered Medical Savings Plan, similar in concept to an RRSP). Since the patient funds the RMSP themselves, they have incentives to keep the outflows to a minimum, which include living a healthy lifestyle, shopping for the lowest cost products and services and so on. The accumulated MRSP continues to grow, so if you start young you will ideally have a large enough nest egg to pay for your medical needs as you reach your years of declining health.
> 
> ...



They already have medical savings plans in the US. They way they work depends on the type you have. (I won't bore you all with the in's and out's)

I don't agree with having an insurance market. The incentives for the insurance companies are to make a return for shareholders, not provide services to the consumer. Thus you are back to the current system in place. And having multiple insurance companies providing the same services creates huge administrative costs for health care providers. When I refer to a 'Single Payer' system, I'm essentially calling for the government to be the insurance company, eliminating private insurance involvement completely. I am in favor of user fees which are banned in Canada.

People need to remember that health care is not like buying other commercial products. You don't always have the ability to shop around, and the majority of patients really are not capable of understanding the intricacies (@#$% Boston!  :tempertantrum: ) of medical treatments, and what is necessary, what is not, what has a better outcome, and what is the most cost effective path. And when it is a definite emergency situation, you don't have time.

What is interesting is that when you ask people down here what they want for a system, they describe an ideal where they don't need to deal with insurance, but are still willing to pay for some portion of their health care costs. When you ask if they would be willing to pay a tax for that type of healthcare, they say no way, we're taxed too much as it is. But when you tell them that the tax would be equal to or less than what they pay for insurance, they are more receptive to the idea.


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## a_majoor (13 Apr 2012)

You benefit from a market in every other kind of good and service you seek out, and _all_ market participants are out for their own good (either maximizing shareholder value, increasing profit or paying the lowest price). There is no particular reason to suspect that insurance companies like Kaiser Permanente is any less aggressive in its market and shareholder activities than Ford, Boeing or the guy who weeded your lawn. This is hardly a new idea, Adam Smith first codified it in "The Wealth of Nations".

In fact, a large pool of competing insurance providers would have _less_ bureaucratic overhead than Medicare or Medicaid  or insurance companies today for the simple reason that administrative costs would eat into profit and shareholder value. If a shakeout ends up with one or two monolithic providers (like an insurance version of Google.com), then the lack of competition would be the actual reason for poor customer service and growing "overhead", and legislation would need to be drafted to make entry into the market fairly simple in order to maintain a pool of competetors.

Now there is another issue which hasn't been addressed here (and probably should be taken to another thread anyway), which is the role of the regulatory system in driving up costs. How much overhead do doctors, clinics, hospitals and insurance companies need to deal with the regulatory aspects of dealing with the government? One of the chief arguments against Obamacare outside of the constitutional arguments in the Supreme Court is it would rapidly drive up costs due to increasingly complex regulatory measures (and indeed, many people who currently have health coverage would find themselves dropped under Obamacare as business and insurance companies pushed them into Medicare or Medicaid to control their own costs).


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