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"So The Mandate Falls? Big Deal."

By Big Tent Democrat, Section Supreme Court
Posted on Tue Nov 15, 2011 at 07:25:42 AM EST
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So says Sheldon Whitehouse:

Sen. Sheldon Whitehouse (D-R.I.), a former state attorney general who sits on the Judiciary Committee, said that the individual mandate might very well fall, but that the law’s defenders have gotten “overexcited” about it. The rest of the law will most likely survive, he said, preserving popular provisions that should help Democrats in the 2012 elections.

“So the mandate falls? Big deal,” Whitehouse said. “I think a family able to keep their sick kids on insurance even though they have pre-existing conditions, kids out of college able to stay on their parents’ policies while they look for that first job with healthcare — things like that are what will stick. Irrespective of what the Supreme Court says, that’s the things people really care about and are counting on.”

I think Whitehouse knows better than that. If the conservatives on the Supreme Court are willing to strike down the mandate, they'll take the rest of ACA with it. Other than Medicaid expansion, I'm not as enamored of ACA as others, to say the least. But Whitehouse seems to be readying a political argument against the conservatives on the Supreme Court and off of it.

My prediction remains a 2012 punt by the SCOTUS conservatives, dismissing the case on standing issues (the Anti-Injunction Act argument will be the vehicle I bet.)

Speaking for me only

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    "So The Mandate Falls? Big Deal." | 58 comments (58 topical)

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    The real reason behind the SCt taking (5.00 / 1) (#11)
    by scribe on Tue Nov 15, 2011 at 09:46:40 AM EST
    the ACA cases remains using its docket to answer the question "how can our five-justice majority best help Republicans in 2012?"

    Let's look at it dispassionately.  There are several possible outcomes.
    Outcome 1.  The Court decides it does not have jurisdiction because of the Anti-Injunction Act.  This act applies when the issue revolves around a tax, which the mandate is couched as.  If the Court decides this way, it can get played as "Obama and his Democrats raised your taxes and there's nothing that can be done to fix it other than elect Republicans."

    FWIW, this was the opinion filed by Judge Kavanaugh of the DC Circuit, a rabid conservative who helped vet judicial appointees and did other dirty work in the WH counsel's office in the Bush 43 administration before being rewarded with a seat on the bench.  Effectively, he's Silberman, TNG.

    Outcome 2.  The SCt decides the mandate is unconstitutional.

    This outcome leads to two possible results because there is no severability clause in the ACA.  For those who don't know, a severability clause is something ordinarily written into a bill which says "if any part of this act is found unconstitutional, all the parts not found unconstitutional will remain in full force and effect."  or words to that effect.   So, the two possible results then become:

    Outcome 2A. The Court decides the mandate is unconstitutional and the lack of a severability clause means the entire ACA is unconstitutional.  This allows the Court to pose as being both judicially modest (tossing a whole act because part is unconstitutional and there's no severability clause is deeply rooted in the common law) and strike a blow against Obama.  "All he did for you was waste a year plus on an unconstitutional boondoggle and you're still broke.  Vote Republican for jobs."  

    Outcome 2B.  The Court decides the mandate is unconstitutional but can be severed to leave the other parts.  This does two major things:  it prolongs the fight over Obamacare, giving Republicans that argument while also giving the Republicans a message similar to the one in 2A, and it allows the rich people (who the Repugs always protect and serve) to continue to benefit from the legalized graft contained in the unsevered portions of the ACA.

    Outcome 3.  The Court decides the mandate is constitutional.

    This is one which benefits Romney;  his Massachusetts bill was the template for the ACA, and the Repugs get to say how prescient he was and how, since all the Democrats can do is copy Republican ideas, why not buy the original and not the copy.

    Tossing the mandate under Outcome 2 will require a rewriting of Commerce Clause and Taxation Clause jurisprudence.  The kind of rewriting is one which the Republicans have long lusted after - ending the New Deal's constitutional underpinnings.  So, if by June 30 it looks like the Republicans will win the election outright or lose it outright, I'd expect this one.  It will allow Republicans to either complete dismantling the New Deal (if they win) or give them a new avenue to stymie Democrats if they lose.

    Outcome 3 is the one right down the middle of existing precedent and requires no changes in constitutional interpretation.  If the Republicans choose this one, it doesn't mean there won't be a hue and cry.  The Kelo real property condemnation case a few years back - the one that had a massive propaganda outcry and people staking out Justice Souter's place in New England and trying to condemn it - was unremarkable because it was another right down the middle of constitutional law and existing precedent.  The hue and cry was purely an artifact of Republican propaganda.

    Outcome 1 and 3 will come out if it looks like the election will be close.  If the obvious candidate is other than Romney, figure on outcome 1 so repealing Obamacare can be a campaign issue.  If the obvious candidate is Romney, figure on outcome 3.

    Remember, sustaining the ACA is no great benefit to the ordinary people - it allows the government to require you to buy anything.  Under a similar theory, they could pass a statute to make you buy all your groceries at Walmart.

    Hmm (none / 0) (#18)
    by AngryBlackGuy on Tue Nov 15, 2011 at 10:41:54 AM EST
    An analysis that has ACA surviving a consitutional challenge and helping Romney more than it does Obama is  . . . an interesting take.


    Parent
    You fail to think like a Republican (none / 0) (#46)
    by scribe on Tue Nov 15, 2011 at 04:31:34 PM EST
    They will say anything, say it convincingly, and make people believe it.

    Intellectual honesty, plain old factual honesty, and consistency are things they have long since discarded.  Look at Gingrich.

    They will pitch it just like I said.

    Parent

    Hmmm (none / 0) (#57)
    by docb on Wed Nov 16, 2011 at 03:58:54 PM EST
    If Medicare payments are mandatory and Legal..it follows that so is the ACA Act constitutional!

    Now that would be logical but we do have the roberts activist court to deal with..Where there has been not one opinion that dealt with the RULE OF LAW and everything to do with conservative activist politics!

    So it is a crap shoot!  and clarence and roberts should be impeached for lying under oath!

    Parent

    Lets take an imaginary look at the Chief Justice (none / 0) (#37)
    by christinep on Tue Nov 15, 2011 at 01:35:58 PM EST
    CJ Roberts was born to the manor, so to speak. From what I recall, his background is all about privilege--in school, in work, in his father's business. The CJ was earlier involved with Repub Administrations and, in that capacity, authored some very Repub-leaning memoranda supporting their WH policies.

    Whether one agrees with him or not (and I most assuredly do not, especially in view of his clear preference for corporation rights--not just in Citizens United--vis a vis citizens &, potentially, even smaller government) there is something very apparent about this dapper, youngish Chief Justice. IMO, he is exceedingly smart.

    What might influence a smart jurist in a heated situation, a situation that will certainly provide a significant portion of his legacy in the history books and in the US? Smart but human? If it is simply those that brought him thus far, the Repubs, the short-term emotional need for the Repubs right now would be to say that the President was wrong, had wasted time, etc.  That would mean...ta, da...getting rid of the demonized mandate as unceremoniously as possible as the general election campaign begins in earnest.  But, there is a problem with bifurcating the Act that way & leaving the rest of the regulatory requirements.

    Actually, there is more than one practical problem. Tossing only the mandate leaves the wealthy insurance companies (and other businesses with a related interest in the mandate) up a creek. How can they cover the costs of the other requirements with a smaller pool of paying insurees while maintaining anywhere near the same profit level? Remember that the mandate really filled the gap as soon as the determination grew (first with Hillary Clinton, then Barack Obama) over the years since the early 1990s...the mandate was the need once it was determined by the majority of the elected Democratic officials in concert with the WH that a universal, sole provider system might not be appropriate in this country at this time.  OTOH, if the SCt tosses the whole thing, there is a likelihood for substantial unhappiness among the substantial numbers of people who have been starting to feel the effects of the regulatory side of the bill, the popular regulatory side of the bill...unhappy enough as to threaten destabilization & the election of a President again with a perceived "mandate" to put a strong competing Justice on the Court at the earliest moment.

    Nope.  I think there are a lot of unknowns. For me, I am intrigued about what the greater influence on a Chief Justice who, presumably, would not want to hand over an election issue to Dems that would guarantee diminishment of his 5-4 lead now.  

    Parent

    The short response to your comment (5.00 / 1) (#47)
    by scribe on Tue Nov 15, 2011 at 04:33:26 PM EST
    is that Chief Justice Roberts doesn't give a sh*t.  He doesn't have to.  In his position, he sets the narrative and the narrative is what he wants it to be.  He owes no one anything and gets to make it up as he goes along.

    Parent
    An even shorter response: Federalist (none / 0) (#48)
    by oculus on Tue Nov 15, 2011 at 04:53:11 PM EST
    Society.  

    Parent
    Oh, oculus, see response to scribe plus (none / 0) (#53)
    by christinep on Tue Nov 15, 2011 at 05:24:37 PM EST
    let me add that husband then also referred to the Federalist Society. Yep. To which I said: Didn't the related Heritage Foundation beget the concept of the "mandate" years back when the Foundation wanted to avert a possible move toward single payer.

    I do admit to both of you--scribe & oculus--that you both, together with my husband, have a better chance at being accurate than my analysis. My own oops! My take: That the Chief Justice's background & view of himself in terms of history may lead him to go with upholding the mandate.

    Parent

    Scalia and Alioto honored guest at (none / 0) (#55)
    by oculus on Tue Nov 15, 2011 at 06:57:39 PM EST
    Federalist Society dinner.  Plaintiffs' law firms attended too.  LAT

    Parent
    Well, yes...your first sentence is (none / 0) (#52)
    by christinep on Tue Nov 15, 2011 at 05:18:41 PM EST
    exactly what my husband said. My comeback (slightly optimistic or more) was/is: While that may be his position as to the greater good, etc., perhaps he gives a s*** about his very own place in history/how he is described/what plaudits he gets or not.  Wishful thinking I know, but I suspect he cares first, foremost about himself (& maybe somewhere in there the moneyed class from which he emanates.) As a Gatsby figure, his self-inclination may lead him to his narrative that may accord best with his own view of himself & his life-connection with his background.

    Parent
    Bingo! (5.00 / 1) (#13)
    by Robot Porter on Tue Nov 15, 2011 at 10:19:47 AM EST
    My prediction remains a 2012 punt by the SCOTUS conservatives, dismissing the case on standing issues (the Anti-Injunction Act argument will be the vehicle I bet.)

    Yup, this is their usual cowardly SOP.  And I fully expect them to use it again.

    Where does that leave the ACA then? (none / 0) (#31)
    by BobTinKY on Tue Nov 15, 2011 at 12:08:22 PM EST
    Does SCOTUS vacate all lower court holdings on ACA b/c lower courts imprudently granted standing, leaving ACA fully intact for the time being?

    As it stands circuits are split, no?

    Parent

    Whatever the Supreme Court decides (none / 0) (#35)
    by Peter G on Tue Nov 15, 2011 at 01:13:12 PM EST
    will supersede all lower court decisions on the same subject, yes.

    Parent
    I just (none / 0) (#1)
    by Ga6thDem on Tue Nov 15, 2011 at 07:40:06 AM EST
    don't see the ACA really holding up over time. The Medicaid expansion is already on the table to be cut. I suppose if the mandates fall, then the preexisting conditions will go too.

    Obama looks worse and worse as times go by that he spent over a year on this POC legislation.

    IMO Medicaid will be cut rather than (5.00 / 1) (#2)
    by MO Blue on Tue Nov 15, 2011 at 07:51:53 AM EST
    expanded. Preexisting conditions may stay but the push is for junk insurance with high out of pocket expense so that actual care is too expense for a lot of people.    

    Parent
    ACA (none / 0) (#3)
    by AngryBlackGuy on Tue Nov 15, 2011 at 08:03:09 AM EST
    Hasn't even kicked in yet and it's being written off.  All it takes to reverse the entire narrative are two things:

    1. ACA winning at the supreme court or the postponement.

    2. Obama winning in 2012

    If ACA kicks in while he is in office, his ability to sell the changes (and the fact that most of the changes will do a lot to help the bottom of the 99%) will change the narrative dramatically.

    It is easy to blast a program set to go into effect in 2-3 years.  Much harder to take away benefits desperately needed by millions.  Just this month we learned that the ranks of the uninsured are swelling due to unemployment.

    ACA has a very good answer to those issues.

    Parent

    Maybe (5.00 / 1) (#4)
    by Ga6thDem on Tue Nov 15, 2011 at 08:15:36 AM EST
    you think you can sell this stuff to most people but not to me. I already have experience with the ACA and the parts that have been enacted. Are you aware that right now doctors and hospitals are asking patients for money up front before they will do surgery? I just got out of the hospital a week ago and before I even was in the right state of mind the hospital sent someone up to my room to collect a "down payment".

    The ACA does not pay for colonoscopies if the doc finds a polyp or if the mammogram finds something. It is full of loopholes because it was written by lobbyists and mandating that people buy junk insurance and then telling them that they are going to have to pay the deductible up front before they get treatment is going to make no one happy. I think you are completely deluded into thinking that the ACA is going to deliver treatment for people who were previously not allowed to participate. It is not. It changes nothing on that account. It still keeps the medical system based on ability to pay.

    Parent

    I already have experience with ACA too (none / 0) (#14)
    by AngryBlackGuy on Tue Nov 15, 2011 at 10:30:48 AM EST
    My brother-in-law  is now covered by his mom's insurance and instead of asking others to help him cover the costs while he struggles to look for a job, ACA provides that he is covered.  That's a real life impact and it's an impact that is saving our family real money that is needed elsewhere.

    There are lots of stories out there.  The numbers overall say it is helping and will only help more in the future.

    Parent

    And (5.00 / 2) (#19)
    by TeresaInSnow2 on Tue Nov 15, 2011 at 10:43:42 AM EST
    your brother in law is going to be forced to buy junk insurance when he achieves the age of 27.  If that makes you happy, well bully for you.

    You taut one of the two parts of the law that are decent (they are very small parts) and then say it's all wonderful.

    It's not.  It's crap.

    Parent

    I guess (5.00 / 1) (#22)
    by Ga6thDem on Tue Nov 15, 2011 at 10:53:35 AM EST
    you don't realize that's just a band aid. When that person reaches 27 they are going to be in the same boat as they were before the ACA was enacted. With more and more companies discontinuing medical insurance benefits he may never be able to get insurance again.

    Parent
    Last time I saw you (5.00 / 1) (#26)
    by sj on Tue Nov 15, 2011 at 11:17:44 AM EST
    tell this story you said he was your brother, not your brother-in-law.  Since I think of my brother-in-law as my brother, I'm perfectly comfortable with that characterization.  

    I note this only because you have stated something to the effect that you never consider anyone's history when you "evaluate" a comment.  Many of us, on the other hand, do.

    Parent

    ga6thdem is 'covered' too (5.00 / 1) (#27)
    by ruffian on Tue Nov 15, 2011 at 11:30:08 AM EST
    The point is that the insurance companies and health care providers are still free to define what 'covered' means right up until the time you actually use the insurance.

    Parent
    That's (5.00 / 1) (#33)
    by Ga6thDem on Tue Nov 15, 2011 at 12:17:33 PM EST
    what a lot of people don't get. People think that as long as you have insurance everything is going to be fine. It's not.

    Parent
    Obama insurance legislation (none / 0) (#43)
    by MO Blue on Tue Nov 15, 2011 at 03:15:44 PM EST
    effect on the individual market.

    CBO and JCT estimate that the average premium per person covered (including dependents) for new nongroup* policies would be about 10 percent to 13 percent higher in 2016 than the average premium for nongroup coverage in that same year under current law.

    *The nongroup market includes people purchasing coverage individually either in the proposed insurance exchanges or in the individual insurance market outside the insurance exchanges.



    Parent
    but of course the ACA (none / 0) (#58)
    by The Addams Family on Thu Nov 17, 2011 at 11:17:57 AM EST
    does ask "others" to cover the costs of your brother-in-law's health insurance:

    My brother-in-law  is now covered by his mom's insurance and instead of asking others to help him cover the costs while he struggles to look for a job, ACA provides that he is covered.


    Parent
    You just learned this month that (5.00 / 2) (#5)
    by caseyOR on Tue Nov 15, 2011 at 08:19:08 AM EST
    the ranks of the uninsured is swelling because of unemployment? WTF! Anybody who was paying even half-@ssed attention saw that a long time ago. That is not news.

    And just what does the ACA do for the unemployed? Medicaid is underfunded now, and sits squarely in the sights of the Super Committee, right up next to Social Security and Medicare. States are slashing their Medicaid rolls because there is no money to pay the state's share. So, there goes the fantasy that because of the Medicaid expansion progressives just had to hold their noses and vote for the ACA.

    If the mandate holds, then the unemployed will be forced to buy health insurance whose premiums they cannot afford to pay; insurance with deductibles and co-pays that they cannot afford pay either.

    Yeah, it's really going to be a boon to the unemployed.

    Parent

    caseyOR (none / 0) (#15)
    by AngryBlackGuy on Tue Nov 15, 2011 at 10:34:34 AM EST
    Stop trying so hard.  I said "we" learned this month because of new survey out that was much more comprehensive.

    What does ACA doe for the unemployed. Let me give you one thing as a true or false.

    True or false:

    It substantially offsets the cost of COBRA for some unemployed workers who lost their jobs between September 1, 2008, and May 31, 2010, by covering 65 percent of their COBRA premiums.

    If true, you overstated, no?  There is plenty more, but you only need one fact to show that statements like ACA does nothing to help are way overblown and likely not based in reality.

    Parent

    Yes (5.00 / 4) (#20)
    by TeresaInSnow2 on Tue Nov 15, 2011 at 10:46:48 AM EST
    Overstated.  Also, the COBRA subsidies have expired.  They are no longer available.

    Parent
    And they were (5.00 / 3) (#24)
    by Ga6thDem on Tue Nov 15, 2011 at 10:56:25 AM EST
    only good for six months in the first place and that's if you could EVEN AFFORD the cobra while being unemployed.

    Parent
    Most people on UE (5.00 / 3) (#21)
    by nycstray on Tue Nov 15, 2011 at 10:51:27 AM EST
    can't really afford even a reduced COBRA payment. And at this point in time, only 48% of the UE are collecting. The rest are just plain outta luck (and insurance).

    "We" could figure this out without a new survey.

    Parent

    What Obama is selling on Medicaid (5.00 / 2) (#6)
    by MO Blue on Tue Nov 15, 2011 at 08:29:35 AM EST
    in his personal negotiations.  

    Medicaid: Significant reductions in the federal contribution along with changes in taxes on providers, resulting in lower spending that would likely curb eligibility or benefits. This was to yield about $110 billion in savings. Boehner had sought more: About $140 billion. But that's the kind of gap ongoing negotiation could close. link

    BTW, Obama chose to delay implementation until after the 2012 election. IIRC Medicare was implemented in a year and if the ranks of the uninsured are swelling, they are swelling because of the choices that Obama made. If as many people are uninsured or are under insured after the health insurance legislation goes into effect as before Obama began his push to swell the insurance industry coffers, it will because Obama chose not to implement a universal health care plan in a cost effective manner.  

    Parent

    Yes, ACA's positive potential (5.00 / 1) (#10)
    by KeysDan on Tue Nov 15, 2011 at 09:35:14 AM EST
    for expanding Medicaid was always offset by its political vulnerability, compounded by both state and federal participation.  And, ACA has given (cf. Erskine Bowles testimony to Super Committee, for example) cover to shrinking Medicare, with a change in eligibility to 67 from 65.  That age group now has ACA is the argument.

    Parent
    Sorry, but it's going to take more than (5.00 / 1) (#7)
    by Anne on Tue Nov 15, 2011 at 08:55:06 AM EST
    the Supreme Court upholding the mandate, and Obama being re-elected, for "the narrative" to change.  

    Why?

    Because the mandate won't go into effect for several more years, and in the meantime, premiums, co-pays and deductibles continue to rise, coverage continues to be reduced, and actual access to care has not improved.

    Which is setting a benchmark for when - if - the mandate does go into effect; if you think a mandate is going to get insurance companies to reduce premiums or provide more coverage for the premiums being paid, I would respectfully suggest you are dreaming.

    Every time I read comments that boost an Affordable Care Act that won't be fully operational for another 2+ years, by reminding us of the millions who desperately need its benefits, I have to ask myself if you see any disconnect at all between the obvious need to help people NOW, and the decision to pass legislation that would delay those benefits.

    I'm guessing it all makes sense to you, but for many of us, it is a hallmark of much of Obama's "historic" legislation: whatever you do, push it past a major election, but make sure to take credit for it now.

    That's getting old, ABG.

    Which is, no doubt, how you feel about my reminding you of some basic facts.  But maybe you are on some kind of delayed delivery system where, for example, you are just now finding out that unemployment is increasing the ranks of the uninsured?

    Whatever the reason why this seems to be news to you, here's more news: insurance isn't care.  Not now, not in whatever year ACA is fully - if ever - implemented (if Obama gets re-elected and the Congress doesn't bleed Dems in 2012, I would put money on the mandate and other "desperately needed" aspects of the legislation being delayed, probably beyond the 2014 mid-terms).

     "Pay these premiums and don't bother to call me in the morning" has never cured anything that I'm aware of.


    Parent

    Anne (5.00 / 1) (#16)
    by AngryBlackGuy on Tue Nov 15, 2011 at 10:37:47 AM EST
    The response is easy:

    They could not pass ACA in a way that would have the benefits implemented immediately.  Some of the changes take years to set up and others could not be passed based on various budgetary hurdles to the legislation.

    Do I wish ACA were effective now? Yes.

    But the idea that it is worthless because it is not takes a very short sighted view of the breadth of the legislation and the fact that some of the changes in it are likely to survive for decades to come.

    Parent

    Funny comment. ACA hasn't (5.00 / 1) (#8)
    by observed on Tue Nov 15, 2011 at 09:14:31 AM EST
    kicked in and you have called in the most significant piece of progessive legislation in 50 years ( or is it 70?)

    Parent
    The fact that it hasn't kicked in yet (none / 0) (#17)
    by AngryBlackGuy on Tue Nov 15, 2011 at 10:40:06 AM EST
    has nothing to do with the significance of the legislation.

    Nothing at all.

    If the time between effectiveness and implementation had been 6 months, would the legislation be materially more or less revolutionary? Of course not.

    It's the single largest positive change to our healthcare structure of our lifetimes and that would be the case whether it was implemented immediately or 2-3 years down the road.

    Even the critics who like Krugman who don't love it understand its materiality.

    Parent

    Also, ABG... (none / 0) (#38)
    by christinep on Tue Nov 15, 2011 at 01:47:54 PM EST
    The CNN poll reported in the past several days that the ACA is now approved by a majority of those surveyed. The last extensive poll by CNN on this subject showed a low-50s opposition (June); and, this poll shows a 52% approval of the ACA (November.)  The interpretation by the pollsters is that their tracking has been showing gradual growth in approval as some of the more popular parts of the law take effect.  (In fact, there are a number of corroborative narratives that suggest the attack against the Act was made early, hard, & emotional for that very reason: That, as the provisions of the Act were realized, people actually found that the Act was preferable to their earlier situation.

    Parent
    As I understand the mandate (none / 0) (#9)
    by BobTinKY on Tue Nov 15, 2011 at 09:27:08 AM EST
    if one does not have health insurance one pays more in federal income tax.

    If I don't have a home mortage, I pay more in income tax.  If I don't have an IRA or 401k I pay more in income tax.  There are any number of other actions I can take, or products I can buy, which would lower my federal tax burden.

    How is the ACA mandate any different?

    Like Whitehouse, I don't care if the mandate falls, it would probably be a better law.  If insurers raise their costs as a result then as I see it we are on a much faster track to single payer.  If SCOTUS also cuts down pre existing conditions & age 26 dependency, that won't go over so well & may also lead more quickly to single payer.

    How it's different (5.00 / 2) (#23)
    by TeresaInSnow2 on Tue Nov 15, 2011 at 10:55:42 AM EST
    You're either forced to buy junk insurance (because that is all that is being offered on the individual market) or pay a tax PENALTY of $750  regardless of income (unless your income is so low you can have it waived).  That's how it's different.

    When you buy a house, you have an opportunity to buy something good.  When you buy an IRA you have something for your future.  When you buy junk insurance, the money gets sucked up into insurance companies that can deny or reduce your payments for them for whatever reason they deem.  And no, this hasn't chanced with the so-called ACA.  The loopholes are still there.

    Parent

    Even if it is stupidly set up (none / 0) (#29)
    by BobTinKY on Tue Nov 15, 2011 at 12:03:12 PM EST
    & regressive, though I suspect well to do folks purchase insurance anyway and the tax is of no moment regardless of amount, I dont; see much difference between any other tax credit program that is out there.  You do this (e.g., buy efficient hot water heater, solar, hybrid car) you get a tax credit. Sure buying all those things is voluntary but the fact is you pay more in taxes as a result of not buying them.

    Yes I completely agree the tax imposed that you are relieved from is regressive, nevertheless the tax credit for having purchased insurance does not seem, from a Constitutional legal review perspective, much different than other tax credits and programs.  

    I am not in favor of the mandate, or ACA as whole.  I support a single nation-wide risk pool of insured with insurance provided by the Government, states, fed or regional compact of states; or private insurers with regulated rate of returns each supplying a franchised slice of the single risk pool like a public utility.  I do, however, want to understand the argument for the ACA being unConstitutional.  I don't see much of one.

    Parent

    Forced to buy or pay penalty (none / 0) (#32)
    by BobTinKY on Tue Nov 15, 2011 at 12:10:58 PM EST
    isn't it the threat of penalty which forces you to buy?

    Parent
    Also (5.00 / 1) (#25)
    by TeresaInSnow2 on Tue Nov 15, 2011 at 10:57:56 AM EST
    Even if you are at a level where you pay no taxes (due to child deductions etc.) you still have to pay this penalty.  That's the difference.

    Parent
    Pretty regressive (5.00 / 1) (#28)
    by BobTinKY on Tue Nov 15, 2011 at 11:52:58 AM EST
    hadn't thought much about that as I in any event am fortunate to have had insurance through work.  

    I kind of agree with Whitehouse though, if the mandate fails the law is improved.

    Parent

    If the mandate fails... (none / 0) (#39)
    by kdog on Tue Nov 15, 2011 at 02:10:18 PM EST
    what are the rate increases gonna look like to cover the insurance co's increased costs for the good stuff in the law...I can't even imagine.  

    Employers will be dropping their plans, or jacking the employee contribution to unaffordable levels.

    Parent

    uh, isn't that what's been going on (5.00 / 1) (#40)
    by nycstray on Tue Nov 15, 2011 at 02:47:35 PM EST
    for quite some time . . . ?

    And the mandate will protect us how?

    Parent

    Yes... (none / 0) (#41)
    by kdog on Tue Nov 15, 2011 at 03:10:02 PM EST
    but it will get worse if ACA forces the crooked rates are always rising like yeast...but forcing health ins. co's to accept those with pre-exisitings and cover dependents till age 27 will bring increases to new heights.  The CEO ain't giving up the yacht, ya know?  That much is certain.

    The mandate, in theory, would keep the ins. co raking it in by forcing everybody to buy insurance...healthy customers at the end of Longshank's lance.

    That being said I'm not a mandate fan...I resent being forced into bed with insurance companies by law...be they health or auto.  It's a license to steal and sets scary precedents...next we'll be forced to contribute to a 401k scam.  

    If you're gonna force me to pay for something I might not want, at least do it the traditional way, tax me and have the government run it...not an insurance company with a CEO making 7-8 figures.

    Parent

    Bad edit... (none / 0) (#42)
    by kdog on Tue Nov 15, 2011 at 03:11:58 PM EST
    at the top...s/b "yes the rates are always rising..."

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    Which may lead t single payer (none / 0) (#56)
    by BobTinKY on Wed Nov 16, 2011 at 03:18:54 PM EST
    employers are not happy with their insurers anymore than employees.  It may break the camel's back and lead to real meaningful fixes.

    But like christinep I think SCOTUS upholds the mandate, either expressly or through the standing dodge.

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    How is the ACA mandate any different? (none / 0) (#12)
    by Abdul Abulbul Amir on Tue Nov 15, 2011 at 09:56:11 AM EST
    .

    You don't pay more income tax.  You pay a penalty.

    .

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    DO apartment dwellers (none / 0) (#30)
    by BobTinKY on Tue Nov 15, 2011 at 12:04:49 PM EST
    who rent for $1000/month pay tax penalty relative to the homeowner with a $1000 mortgage, most of which can be deducted at the homeowner's marginal rate?

    I sure felt like I was paying a penalty when I was renting.

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    The bigger question is (none / 0) (#34)
    by Buckeye on Tue Nov 15, 2011 at 01:00:23 PM EST
    What will President Romney do with the ACA?  It is actually a good question.  We know Romney is fine with it, the ACA is essentially his work.

    But...would the GOP (assuming they hold the house and take the senate) push Romney to repeal or greatly roll back the ACA?  And if so, does he just appease the base and go along.  Or will Romney punt and make excuses letting it take hold?  I have a feeling based on his actions during the primaries that Romney will not put any time or political capital to reversing it.  I also think he is going to get blasted with lobby money from big insurance and pharma to keep it.  I also think he does/will get some sense of pride knowing he was the architech of America's health care system.

    Who knows.

    Well (none / 0) (#36)
    by Ga6thDem on Tue Nov 15, 2011 at 01:18:52 PM EST
    he actually says he'll repeal it but I consider that promise dubious at best since like you say he's likely to get a ton of money from the lobbyists who have an interest in keeping it.

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    He waffled on his support (none / 0) (#45)
    by Buckeye on Tue Nov 15, 2011 at 04:08:21 PM EST
    of Ohioans effort to opt out of the mandate.  He also said he would issue an executive order to give states the ability to op out.  That can't be done and Romney has to know that.  so even though he says he will repeal it, I do not see any real interest from him.

    Of course, why should we doubt him.  I mean Romney is not the type to flip flop after saying something just to get elected...right???

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    Inside the Obama WH re mandates: (none / 0) (#44)
    by oculus on Tue Nov 15, 2011 at 03:20:47 PM EST
    Poor lede but interesting article

    More depressing :) (none / 0) (#50)
    by Militarytracy on Tue Nov 15, 2011 at 05:07:15 PM EST
    I think providers are about ready to blow, and the patients are about ready to blow.  I dunno what to make of any of this anymore.  I used to think it was creepy when doctors made so much money it was almost ungodly but now I look at what they are paid by Tricare and it is fricken so sad it isn't even funny.  And a bunch of guys who love what they do will save Josh's life again with brand new scoliosis procedures they all invented and they will save his feet and they will be paid crap for it :(

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    A friend just let me know her company (none / 0) (#51)
    by oculus on Tue Nov 15, 2011 at 05:12:46 PM EST
    will no longer offer health care plans to retired (read down-sized) former employees.  

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    Strike it down (none / 0) (#49)
    by Militarytracy on Tue Nov 15, 2011 at 04:59:44 PM EST
    And I promise I will go crap on Wall Street!  Punting....yeah....cuz let's not give everything a reason to finally blow sky high and then have the entire Conservative movement be crushed under the weight of the furious 99%.  If they punt, isn't that the final admission that the U.S. Supreme Court is supremely political and deciding and upholding law and order...well not so much.

    The Cretin 5 on SCOTUS will fail ACA... (none / 0) (#54)
    by pluege2 on Tue Nov 15, 2011 at 05:28:45 PM EST
    ...not on any Constitutional grounds, but because failing ACA will help to unseat obama.
    .

    "So The Mandate Falls? Big Deal." | 58 comments (58 topical)

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