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MurphTheSurf3 On March - 26 - 2012

The Core of this challenge is whether the Mandate that everyone have health insurance is constitutional. There are secondary issues, but this is the heart of the matter.

If the Court upholds the mandate, the ACA goes forward as planned to the continued objections of many conservatives. Getting everyone into the pool sharing the costs of the entire system is seen as the only way to keep costs down and maintain the insurance system. Jurists across the country are leaning slightly in favor of this as the likely outcome based on previous efforts to regulate commerce.

If the Court finds the mandate unconstitutional, do they find it severable from the rest of the law? If not, that will strike the whole ACA down. This according to the jurists seems like the least likely outcome.

If, on the other hand, they do invoke severability, the ball is back in the White House’s court. At that point the White House will have to answer this question: Can health care reform be successful without the individual mandate?

Why is the Mandate essential? First, if we don’t require everyone to buy insurance, then insurance will be disproportionately purchased by those who need it, the likely sick, making it more expensive/unaffordable. This would lead many to discontinue coverage in a continuous cycle that drives the price higher and higher until no one but the very rich can afford insurance any more and the system collapses.

Second, if a person is not covered by health insurance then any bills he/she accrues must be paid by the individual. If he/she cannot pay the bills, then civil suits are one remedy. If there are insufficient assets for a suit to be successful, then the cost is either covered by the care giver (as a loss) or by the government (in direct aid to care givers).

However, if the entire system is under-financed then the ability to continue bearing losses or covering expenses via government subsidy is at risk.

So….What happens if the Supreme Court strikes down the individual mandate but rules that severability applies? Two options. The Obama administration washes its hands of health reform, proclaiming that it can’t be done without the individual mandate because costs will rise too rapidly and the insurance system will collapse. Or the Obama Administration forges onward with a modified system.

Option one is terrible politics with the President and his Democratic allies admitting defeat on one of the defining aspects of the Obama presidency. Moreover, it would have tremendous negative implications for the future of health reform initiatives generally.

Option two looks good politically but it could destroy the health insurance market and hurt Americans in the process. If it shapes up that way it would be an example of very bad leadership and be incredibly painful.

But, could it be done in a way that demonstrates sound leadership and minimizes the pain. New evidence suggests that the pain might not be as great as many fear. Simulation models from the Kaiser Foundation and John Sheils and Randall Haught of the Lewin Group have found that health reform without the individual mandate would result in fewer people being covered and insurance premiums increasing, but things would still be better than if we did nothing at all.

According to their findings, without reform 51.6 million remain uninsured. With mandate based reform 20.7 million remain uninsured. Without the mandate but with reform continuing 28.5 million remain uninsured. Premiums without reform rise by 15.9%. Premiums with reform (but without the mandate) rise by 12.6%.

However. the CBO is not nearly as optimistic with many more uninsured and the costs much higher but there would still be some improvement. The CBO expects that axing the individual mandate will mean 44 millon insured persons and a premium increase between 14 and 16%

If the Court finds the individual mandate unconstitutional, the White House will have more actuaries and health economists crunching numbers than you can imagine and the political pressure on the GOP will increase tremendously.

How so?

If the Supreme Court finds the ACA unconstitutional in any way THEN the Obama campaign will launch an Information Campaign that will feature all the features immediately endangered by the decision. The following, the campaign would say, are now on the chopping block—-

1) …insurance companies are prohibited from imposing annual and lifetime dollar limits on essential coverage.

2) …job-based health plans and new individual plans aren’t allowed to deny or exclude coverage for children (under age 19) based on a pre-existing condition including a disability.

3) …children under age 26, covered by their parent’s insurance if it covers dependent children at all.

3) …if income is less than the equivalent of about $88,000 for a family of four today, and employment doesn’t offer affordable coverage, families may get tax credits to help pay for insurance. (THIS IS 28.6 MILLION AMERICANS, by the way)

4) …pregnancy and newborn care, along with vision and dental coverage for children, is covered in all exchange plans and new plans sold to individuals and small businesses.



And then the White House will push what WOULD HAVE BEEN IN PLACE by 2014 when public exchanges and subsidies would have expanded the number of insured tremendously, health insurance premium oversight would increase and the protections now applied to children would be expanded to cover everyone. NONE OF THAT HAPPENS IF THE LAW IS STRUCK DOWN.


Two likely results? If that info campaign is successful, the Obama campaign will be lifted as Americans suddenly realize ALL they have lost and turn on the GOP in large numbers. The White House, buoyed by public response will push ahead with reform without the mandate demanding that Congress find a way to fund the program fully. And the Health Care Reform debates begins again.


Written by MurphTheSurf3

Proud to be an Independent Progressive. I am a progressive- a one time Eisenhower Republican who is now a Democrat. I live in a very RED STATE and am a community activist with a very BLUE AGENDA. Historian, and "Gentleman Farmer."

104 Responses so far.

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  1. Another right wing justice argument debunked from an anonymous blogger.

    Why not mandate burial insurance, too, as Justice Alito asked? The burial counter-argument is the strongest criticism I’ve heard. Its strength helps uncover why health care is special:

    Burial Insurance vs. Health Insurance
    One-time expense v. Open-ended, uncertain expense
    Small cost for minimum service v. Potentially enormous costs

    Nature of minimum service is simple and commonly replicated v. Nature of basic services are complex and highly individualized

    Political branches have not identified unpaid burial expenses as major social problem v. Political branches have been debating solutions to this huge social problem for decades

    There really is no market like health care. Its unique status justifies the unprecedented individual mandate prior to point of sale.

    Based on the ‘limiting principle’ (admitting that the HC market is indeed unique) and the commerce clause, it should be a no brainer that the ACA is constitutional.

    • funksands says:

      KQ, that’s a good comment. Righties seem to have no trouble cooking up and eating these comparisons. My favorite is the hysterical “The US is an eyelash away from being Greece!!”

      Yes, other than being completely different, you are absolutely right.

  2. Nirek says:

    I wonder how many people will be affected by this law? Most of us already have insurance through our employer or the government or some other source. The very people who need insurance are the ones who will have to get it. This will save money (tax dollars) because the sick or injured will be covered by insurance so the cost won’t be passed on to us covered folks.

    Seems to me it is a win win to have everybody covered by insurance.

  3. MurphTheSurf3 says:


    A mom reflects on how a death panel could end up killing his son

    Spoke with a friend this morning. Her son has a respiratory illness which requires monthly hospital treatments (one weekend), daily meds, and a weekly at-home nurse practitioner delivered breathing treatment.

    He is five years old.

    Until the ACA, his family was desperate. The dad’s employer health insurance would not cover the illness since it was a pre-existing condition. He has worked in his current job for 4 years. The illness was discovered one month after he started work there.

    They have mortgaged their home, taken out private loans, done fundraisers. Mom, who has two other kids, works a phone sales job from home on commission.

    It was clear they were running out of options. The doctors and hospital were working with them but they too were running out of options and when the option run out, the boy dies. If he has treatment, he will live a long life, impaired but not extraordinarily so.

    On March 23, 2010 the Patient Protection and Affordable Care Act (PPACA) (i,e, Obamacare) passed and their lives changed for the better.

    The insurer is covering their costs. Their premiums are up but by comparison with their previous situation, that increase is affordable.

    As of yesterday, that all changed for them.



    They will do all they can to get their son relief and care, but the chances are that within a year or two, he will succumb to his condition.


  4. MurphTheSurf3 says:

    THE BROCCOLI ARGUMENT: The Key to the Whole Game?

    If the federal government can force you to buy health insurance, can it force you to buy broccoli. Or take out a membership a gym membership, a cell phone?

    They cut to the core of the debate over the constitutionality of the individual mandate,. Now commentators are busy trying to parse the words of the justices in an effort to predict their likely judgments.

    Recall that the justices come loaded for bear having read lots of summaries, background materials and particular amicus briefs. The key question: the powers granted the federal government by the Commerce Clause of the Constitution, which permits regulation of interstate business.

    This conservative court has struck down federal laws on guns near schools and violence against women that it found overstepped that authority. It has been stingy in the application of the clause.

    The issue is the method of regulation and funding. The conservative justices seemed skeptical that the government could require citizens to purchase anything.

    But even this court is likely to agree that the Commerce Clause gives Washington wide latitude to regulate health care, given its indisputable impact on interstate commerce. This why I think they will find that severability in the statute is allowed- the mandate can be stripped from the ACA while the rest of it stands.

    I was struck by a question from one of the court’s more liberal justices, Elena Kagan pointed out that the law doesn’t force a person to purchase the insurance. It just imposes an added tax on those who decline to do so, much as the government imposes taxes based on other decisions, such as selling stock.

    That is a reasonable policy. Because if you don’t buy health insurance and you get into a car crash, the cost of treating your injuries will be shared by the rest of society. A study by Families USA estimated that the uninsured add more than $1,000 to the cost of a typical health plan. An added tax offers some compensation.

    Remember that the mandate was invented by conservatives as an alternative to a single-payer system proposed by Hillary Clinton. That’s what Canadians and Brits have, and they are healthier than we are, and happier with their system. It is essentially Medicare for all.

    We are stuck with a more awkward and complex system because conservatives would not go there. Now their guns are aimed at the mandate, which they call socialism.

    If they win this court case, what would they do about the roughly 50 million Americans who lack coverage? Their failure to answer that question speaks volumes.

    • The broccoli argument is so ridiculous. Broccoli, cell phones and gyms aren’t necessary for life to continue. People can surely live without those things, while healthcare is essential for decent life.

      I hate broccoli, never had a cell phone and work out at home (on occasion)and I am in pretty good shape, I am healthy. Why wasn’t car insurance mentioned? I know that is up to the individual states, but car insurance is also necessary to keep costs down and compensate people for auto repairs and protect them from law suits. So why do these RWs think health insurance is all that different. If anything, it is far more important than auto insurance.

    • I go back to the ant and elephant principle because that’s what we are doing when we compare food as a necessity to HC as a necessity.

      No one in the country walks out of their door and for circumstances beyond their control immediately needs $250K+ of any food stuff. While if you walk out your door and have a hear attack on your front lawn and they have to operate on you, literally within 24 hours you are $250K+ in the whole to our illustrious HC system if you don’t have insurance. And if you are not independently wealthy the providers will never see a fraction of that money.

      So how in the hell is HC not a unique market different than any other market in the country?

      The reason we don’t force people to buy a particular food stuff is that you have options to buy literally millions of types of foods you can afford even if it’s a need. Whereas with the HC industry your only option to be able to pay your HC bills is by buying or being covered by some kind of insurance.

      • MurphTheSurf3 says:

        Let me add that if you need food, our society has had programs in place to provide nutrition (The Supplemental Nutrition Assistance Program, food stamps; Assistance to Families with Deptendent Children; etc.). Privately funded charities have opened food pantries and soup kitchens.

        But efforts in recent years by the GOP to make access to those resources has resulted in less funding, more restrictions and a greater stigma by association.

        I regard the GOP effort to take down health care reform as a preemptive strike on an entitlement their plutocratic masters do not want to bear. The justices allied to them are reaching for reasons to justify their intention to slam the law.

        Your arguments are logical and in the real world. They do not care.

    • Usually when you put a mirror up to an argument and it’s valid in both cases your argument is valid.

      Now lets say instead of making you pay a tax if you don’t buy HC insurance the government made it like the interest tax break you get being a home owner. In that case everyone pays higher taxes until they purchase a private commodity, in this case that commodity is a home loan. Then and only then do you get a tax credit.

      Well hypothetically they could have passed the ACA with the same logic. Everyone would have to pay a 2% tax but if they bought private HC insurance (or had coverage other ways) they would get a 100% tax credit for that tax increase.

      No one for a minute would question the constitutionality of that law, yet the mandate does the exact same thing in a different way.

      Of course the Dems could never have passed a tax on everyone in this political climate so they had to do the mandate instead.

      • MurphTheSurf3 says:

        If the Dems had been able to pass such a law the GOP would have performed the necessary lateral arabesques to argue its constitutionality.

        If they can stand up and condemn the mandate program they created in response to Hillary Care’s model for a single payer, then they would happily find grounds to take on the tax and the tax credit.

    • choicelady says:

      The key issue is that in ONLY health care are doctors and hospitals themselves mandated to serve, and we, the taxpayers, mandated to PAY.

      That is why Kennedy’s last comment that it may put an intolerable burden on all of the above is striking. He understands that no one is mandated to feed anyone (OK -- except as we take moral imperatives. Not Sarah Palin or her Dominionist ilk.) No one is mandated to provide you with transportation. No one is mandated to have blue jeans. This is not about a commodity -- this IS about sharing the burden and accepting your responsibility. I INTENSELY dislike forcing people to buy private insurance which is why the High Risk Pool is critical -- it IS a public option. That opening wedge is important Constitutionally as well. It give you an option that is not forcing you to purchase a commodity, but the mandate of Medicare is exactly equal.

      I have a major “thing” about helmet laws for motorcycles. It’s not that you are required to wear them in CA. It’s that people think it’s OK not to wear them and damn the consequences.

      Unless and until we DO have “death panels” that say -- you screwed up, no insurance? Too bad. Until we are allowed to let people die by the side of the road, and oh, well… Then you are forcing all of us to care for little old you. That is GOOD -- we cannot become a nation that lets people die. But it’s bad because like ‘right to work’ laws -- free riders abound. Shove it off on someone else to pay! Let me get mine but without MY accepting any responsibility here.

      I think Kennedy’s last comments will lead him to vote with the administration. He, at least, thinks no you cannot let people die, and yes there has to be some direct involvement of individuals in the maintenance of the system that protects them.

      Could be wrong. Been wrong before! But I think that message of relieving the burden of individual needs from the whole of society -- of the “stone soup” principle of everyone putting what they have into the communal pot of soup we then all can use -- that may well prevail.

      But -- we shall see.

      • MurphTheSurf3 says:


        We are, as a society MANDATED to provide medical care…which makes health care a massive exception to our usual set of rules…and as a result an exception in law must be made for the Health Care Insurance Mandate….

        In that light, Kennedy is a possible vote in favor of the mandate. I agree. Good thinking on your part as the result of good reading/listening. Thanks.

      • bito says:

        And stone soup tastes better knowing that you added that can of green beans into the pot. It does for me.

  5. funksands says:

    Wow, lot of very smart people posting very smart things on this story. Now for a change of pace…

    The wild verbal gesticulation by some of the conservative justices about where the limits of Congressional power to compel activity might be a good thing?

    If they don’t really have an idea of whether or not Congress has the power to compel this, don’t they have to fall back on EVERY court’s supposed default position?

    Doesn’t ever court have the default assumption that EVERY law passed by Congress is constitutional unless it is blatantly NOT so?

    Or has the Roberts Court evolved beyond that?

    • Funk, the Commerce Clause in the Constitution really does settle this whole argument. It clearly states that Congress has the power to regulate commerce in some situations. I would think that the ACA is one of those situations.

      • choicelady says:

        I agree, KT. Since this, a noted above, is a unique “consumption” issue, and since we all of us are on the hook at both state and federal levels for uncompensated care, there is reason to think the Commerce Clause holds sway.

        I was VERY heartened by Kennedy’s summation. And wouldn’t ya know -- hardly ANY of the media reports mentioned it.


      • funksands says:

        KT, I think it does too. Today really feels like the the conservative justices harrumphing and showing how displeased they are about this law…before they allow it anyway. At least that’s what I tell myself.

        • MurphTheSurf3 says:

          Wishful thinking?

          Don’t know.

          I put nothing past this Roberts Court. Nothing.

          So have they evolved? I have my doubts.

          Will the application of the common good principle and the commerce clause be a sufficient reason to rule in favor of the mandate and the overall ACA bill? Perhaps your description of these guys showing their feathers and strutting about is compelling. I hope it is accurate.

          • I don’t think common good has been argued heavily only because they don’t need it.

            The two arguments I’ve heard justifying the mandate are the ‘limiting principle’ (meaning the HC market is unique and their is no slippery slope that the government will all of a sudden force you to buy other things) and of course the commerce clause that gives the Feds jurisdiction to act in the HC market at all.

          • choicelady says:

            I think the common good issue enters none of the minds of the 4 conservatives, but the issue of forcing taxpayers to provide tax coverage for uncompensated care -- that’s heavily on them all.

            • You’re right CL. I don’t look to seeing the conservative justices as really caring about the “common good.”
              Although, the “common good,” aspect of the mandate may be something to use to point out the overall morality of the mandate.

  6. escribacat says:

    All these negative predictions are literally making me sick to my stomach. What about those of us who need the damn legislation to get insurance? Screw us then, eh, rightwing justices?

    • MurphTheSurf3 says:

      What will be the backlash if the public wakes up to what will be lost and what will never come to be if the conservative justices act for the GOP?

    • Chernynkaya says:

      E’cat, today is a good day to stay away from the media. They are turning this into another horse race and ginning up preemptive outrage. I just watched as TPM started the day with headlines like “Tough Questions from Justices” and now shriek “DISASTER for the Left!!!!”

      I can always find reasons why things will turn out badly--that’s my nature. But I can also see when I’m being manipulated. For all I know this SCOTUS hearing is in no small part political theater. The 5 RW Justices know everyone is watching and may be playing to the Repubs. They may be asking tough questions to appear “very serious” but they may also be actual jurists who understand precedent and the Constitution. Thomas aside, I think they are--even Scalia. Anyway, that’s my take for the moment.

      • choicelady says:

        I agree, Cher. Es-cat -- I think you’re OK. Really.

      • MurphTheSurf3 says:

        Why do the justices have to pay attention to the impressing the right wing? why do they have to play to the GOP when they have lifetime appointments? Just asking, not being critical. You may have an insight here I am missing.

        • Chernynkaya says:

          Murph, I don’t believe that the Justices live in a rarefied bubble. Look at Thomas--he is active in the Tea Party via his wife. Scalia is always speaking at some RW event or other. Roberts less so, but he too is on the circuit. Of course, it’s not the same as having to be elected to anything, but they are not immune to public opinion nor are they immune from ideologues. And while it’s extremely rare, they might think about the threat of impeachment. Roberts had to at least respond to the calls for ethics investigations for Thomas. I don’t think he especially like having to do that.

          And as much as I despise the Tea Baggers, I have to hand it to them--they know how to threaten, especially since they are backed by corporate interests.

          I’m not saying the Court is the same as an elected official--they certainly have a job for life for exactly the reasons that they SHOULDN’T feel beholden or subject to threats. But at the same time, they are egoists and human. I just think they know the country is watching and they are not above grandstanding in this case.

      • escribacat says:

        Thanks for talking me down, Cher. I’ve tried to get over the habit of getting emotional about political events (and this IS a political event, not a legal event). I will avoid the news because this one hits too close to home and it’s extremely upsetting. I need a dumb movie to watch this evening — how about “Gidget” or “The Ghost and Mr. Chicken.”

      • SallyT says:

        Cher, I do think a lot of this is theatrical. I have heard the Justices ask questions in the past that would lead you to think they are going to vote one way and they turn around and vote the opposite. You can call me Sarah Palin for now because I can’t name an exact case to point to for an example but I do recall my thinking at the time that lead me to think this now. :roll:

        • MurphTheSurf3 says:

          Correct. The justices play devil’s advocate all the time. They come into the chamber having read a great deal, having been briefed by their clerks, and having reviewed amicus briefs in summary form (or in full form after reading the summary).

          The arguments from the attorney’s are interrupted regularly with questions, observations and judgements.

          It is hard to know why they are asking what they ask. Is it to poke holes or to make the attorney show that the case is supportable in oral argument as well? Does it give away position? At times but not always.

        • Khirad says:

          Ditto that. I remember the last time (what was that?!) I heard Kagen challenging someone who she ended up siding with. Sometimes it’s Devil’s Advocate to strengthen the case. I’m not sure that’s what Roberts was doing and I’m not banking on him, but he’s the only one apart from Kennedy that’s even remotely possible.

      • My favorite meme is this will look bad for Obama because he’s a constitutional scholar if they find the law unconstitutional. Sure technically it will be unconstitutional because ideological right wing judges say it is but that does not mean another court would have ruled in favor.

        I mean we all know the Citizen United ruling was unconstitutional.

        I saw someone bring up the point that the SCOTUS of the 20’s would have called SS unconstitutional so it’s all relative to the court you have.

        • MurphTheSurf3 says:

          Constitutionality has never been an objective standard. Recall that antebellum Supreme Court upheld slave owner rights regularly.

        • escribacat says:

          I read somewhere that Ginsberg or Sotomayor brought up Social Security but got shouted down. Maybe I made up the shouted down part.

          • MurphTheSurf3 says:

            Listened to the hearing recording and yes both raised the issue asking if both of these programs would also be considered to wide a reach if they came before this court. They were not shouted down, but they were walked over by Roberts who intervened with secondary questions.

  7. choicelady says:

    One site, The People’s View, assesses the likely outcome at 7-2 in support of ACA. It’s worth taking a look http://www.thepeoplesview.net/2012/03/why-individual-mandate-is-probably-safe.html

    The other fallback is expansion of the existing “public option”, the High Risk Pool. It is unarguable that the government can mandate enrollment in a public plan. We did it with Medicare. By making that broader and more comprehensive -- eliminating the waiting time without insurance and expanding the base -- it would serve everyone well as a non-private commodity requirement. Purchasing something in the private market by mandate is the crux of the “if they can insist we buy insurance they can force us to buy broccoli” anger. That would go. Already the large numbers of people taking up the High Risk Pool has reduced premiums in CA from $500 per month in San Francisco down to $400. With millions more, it might well drop further and make a flat assessment percentage possible as we have done with Medicare.

    In other words -- all is not lost, IMHO even if the justices provide a political rather than legal ruling. And they might -- think of who they are and what they did on Citizens United and Gore v Bush. And the latter was not even THIS court. But there are reasons to believe they won’t, that since the mandate originated with the (ugh) Heritage Foundation, that they won’t overturn it even for their best buds. Scalia and Thomas -- oh sure. The others? Not so likely since killing the private market mandate could very readily push us into a form of single payer. Conservatives would like that not at all.

    So we will have to see what they say, but there are reasons to understand that with the public option already in place, all might not be so bad.

    • The big problem with that CL is the HRP PO would become a huge money pit. For one thing even $400/month is an individual rate and is too high for that huge group of people that would get more generous subsidies in the exchanges so to make it work the government would have to fund the HRP to a much greater extent. So every budget period you have to beg the House for more money whereas the tax subsidies for the exchanges are written into the law. I forget where I saw the study but the whole HRP concept would actually make cost increase faster that no HCR under some models.

      The worst part is destroying the mandate destroys the ability of the exchanges to have lower premiums beyond the subsidies because you don’t have an adequately expanded risk pool.

      The way Kennedy is attacking the ACA mandate I see it being struck down. To be honest he has not been a true swing vote for quite a while and has sided with the conservatives much more often than not. Right now it looks like Roberts is the only possible swing vote and he’s attacking the mandate as well.

      • MurphTheSurf3 says:

        You are asking the questions that come to my mind. Who pays for it and how does the pool keep from becoming just the worst risks? I will add another concern. The pool expansion will require further legislative action which will be blocked in the House and the Senate as currently composed. Yes? So does this raise the stakes even higher for the elections.

    • AdLib says:

      Hey CL, I agree and am not as concerned that the SCOTUS would overturn any section of the ACA including the mandate. They could but it would be such a radical turn for some of the 5, even though they are Republicans, I doubt they can find enough justification for their own satisfaction to set such a destructive precedent that would substantially weaken our federal government’s ability to govern.

      For me, the argument against the mandate seems terribly weak. The proposition is that government should not be able to force a citizen to buy something. The premise is that someone who chooses not to buy insurance is not participating in commerce and thus is not subject to Congress’ ability to regulate commerce.

      They complain that government shouldn’t be able to regulate what a citizen does just by being alive.

      By saying that however, they would seem to hand the argument over to Obama.

      By being alive, out of necessity, one IS participating in the health care industry because every living person, at some time, will need medical care. By necessity, to just be alive is to participate in the business of health care.

      Their flawed argument would be akin to saying, just because I own a car, doesn’t mean I’ll ever have to pay for maintenance or repairs. It’s just plain wrong, of course you’ll have to change the oil, have a tune up, replace a tire or battery if you own a car.

      So, if I choose not to pay for my repairs and if the law required repair shops to service my car in an emergency, my not paying means that the repair shop has to charge everyone else more to make up for that loss.

      So for these alleged “personal responsibility” frauds, that term means just the opposite, “Personal irresponsibility” and in essence, stealing from others.

      The fact is clear that those who claim not to be participating in commerce, are in fact not only participating in it but greatly affecting it and causing the price of goods and services to keep rising.

      My question is, if these people insist on making the rest of Americans’ health care costs go up, how can they say they’re not involved in commerce?

      Scalia and Thomas could justify opposing a cure for cancer, they are lost causes but would Kennedy, Alito and Roberts be able to delude themselves so enormously and destroy whatever remains of their reputations and legacies by denying a fact as plain as this one? And destroy the balance of power between the branches of government?

      I don’t think all of them could or would so I agree with the potential of a 7-2 decision and am even prepared for a 5-4 decision, with Kennedy being the most likely swing vote.

      If the mandate was overturned and the SCOTUS essentially stated that it would now be superior to the reasonable decisions of elected government, our democracy will be seriously wounded and will stagger from this point forward until the balance of the SCOTUS is changed and has a moderate to Progressive majority that could undo such damage.

      • MurphTheSurf3 says:

        I agree with all you say but today’s SCOTUS action seems to indicate that most of the justices do not. The crux appears to be that the means of financing the entire system, and of bringing costs down in the ACA, the Mandate, is a bridge too far; an application that is not justified and for which precedent would be very damaging.

        Kennedy certainly made it clear that he was troubled by the means.

        My guess right now is that the court strikes down the mandate but permits severability.

      • IDK from what I’ve read today it’s definitely going down 5-4 because conservatives simply cannot put the Constitution before ideology. They have been attacking the mandate as limiting personal freedom sounding just like a teabagger pol. :roll:

        Of course these are the same people that want to control woman’s bodies.

  8. lowskiesgirl says:

    While I can agree that the mandate is necessary to keep premiums low, why is everyone forgetting regulation of healthcare costs? If an MRI in the Netherlands costs 1500eur without insurance, there is no reason the same MRI in Kansas should cost $6,000.

    • MurphTheSurf3 says:

      Cher’s thinking on this is sharper than mine. When I read her response all I could think is…me too.

    • Chernynkaya says:

      The ACA only addresses costs for Medicare and those in the insurance exchanges. It is not in the scope of the program to regulate private doctors fees or hospital costs for privately insured patients. It is not the same system as Europe’s. We are not there yet--not universal health care. All it can do is reduce the costs of care for people who sign up for the program.

      The ACA contains measures to encourage health
      care providers to band together in accountable care
      organizations (ACOs) to better coordinate services
      for a group of patients, resulting in higher-quality
      care at lower costs.

      It also controls waste and fraud, but again, only in Medicare and Medicaid and for those who sign up for the program.

      • lowskiesgirl says:

        Which is absurd. Please don’t lump healthcare in Europe into one system. There is no ‘European health care system’. There is the Dutch program, the UK program, the French program, and so on.

        I live in the Netherlands, which is a lovely marriage of govt. regulation and private enterprise. Having lived under both systems, I’m acutely disappointed at the total lack of pricing regulation for the general population. Huge mistake.

        • MurphTheSurf3 says:

          I lived in Belgium and Germany. Both have a mixed system with special provisions for those who are visiting or temporary residents. Seemed the best to me since I also spend time in Canada and the UK

        • Chernynkaya says:

          I realize there are several forms of health insurance in Europe. I wish we had something like them. I also wish a lot of things. This discussion, however, is about what we have here, now. And yes, it’s ridiculous that we don’t have a better system. Was that your whole point? If so, you’re correct. But that hardly matters at this point. Since you live in the Netherlands, you might not be aware of the monumental battle that took place to get merely this far.

          • lowskiesgirl says:

            I said I lived in the Netherlands, not that I was Dutch. I’m American actually, so yes, I’m well aware of what is, has been, and is not available in the US.

            And since I have lots of family and friends in the US, I’m well aware of what’s at stake in this case. I just wish my family and friends were.

            I still see it as a significant failure to have left out the regulation. I’m not a fan of single-payer, but there you go.

            • MurphTheSurf3 says:

              Lowskiesgirl….welcome to the Planet.

            • MurphTheSurf3 says:

              “And since I have lots of family and friends in the US, I’m well aware of what’s at stake in this case. I just wish my family and friends were. ”

              Best quote of the day for me.

              You capture something very important here. It is so easy to manipulate, mislead and misdirect the uninformed.

              It is what the opponents of Health Care Reform are counting on.

            • SallyT says:

              Hello lowskiesgirl, I understand your frustrations in living in a different country and how things there are compared to here. It lets you see how narrow our own country can be on certain issues. I have never lived outside of the US but I can relate with you in just wishing some of my friends would move out of the MidWest for awhile here. They would see that life can be more open and appealing along with certainly less racists in different sections of this country as well. Sometimes you just want to yell, “WAKE UP! :)

            • AdLib says:

              Hi lowskiesgirl and welcome to The Planet!

              Keeping in mind how plutocratic our Congress has become, it is surprising to me that the regulation was passed which mandates insurance companies use 80%-85% of premiums on healthcare or they have to refund the overage.

              The pay per service model that currently exists in the US, encourages over usage of services and promotion of costlier medical care. With a system focused more on preventative medicine, as the ACA supports, those costs should decline.

              As for regulating the cost of services nationally, I don’t see how that can be done Constitutionally without a single payer system. Of course, for example, Medicare could limit what they pay for a service but the provider can still keep the price where it is and the burden shifts to the patient, if Part B doesn’t cover it in full.

              It’s a Catch 22 in a way, corporate providers have a service that is critically needed and have a legal directive to make as much money as possible from it while the cost of health care is becoming unaffordable.

              The problem is of course the profit motive in health care and single payer could neutralize that by changing the game so that there is no alternative but to provide a service for a consistent and fair price.

  9. Chernynkaya says:

    In states that tried market reforms without a mandate, premiums increased significantly and enrollment declined. By contrast, the Massachusetts health reform law enacted in 2006 included a mandate with the result that coverage is now near universal. Independent analyses of the Affordable Care Act indicate that the mandate will be instrumental in achieving near-universal coverage, and that it will reduce premiums. Significantly, there is no evidence
    that any alternatives to the mandate would be nearly as effective.

    Center for American Progress

    So, yes, it’s possible to have HCR without the mandate, it just would suck. Only the oldest and sickest would enroll for the most part and everyone else’s premiums would rise. And then the program would be declared a failure.

    • MurphTheSurf3 says:

      And after today’s grilling that may be what we are stuck with.

    • If it’s struck down this really could be our last shot at Federal level universal healthcare reform.

      Of course we have loons like AOLHP Reich implying that if the ACA is struck down then it could be a good thing and Dems can go for for Medicare for all.

      What fucking planet do these progressive ideologues live on?

      Every iteration of HCR reform has gotten more and more conservative when each Dem attempt fails. This is the kind of ridiculous progressive expectation/disappointment machine that got us the teabaggers in 2010.

      • MurphTheSurf3 says:

        And yet we may need to launch a full court press on this now. Consider all that will be lost that is already in place and all the will be lost that is supposed to come into place…and work with everything we have got to get many, many folks in panic mode aiming for a Dem resurgence in the House and Senate with Obama still in the WH.

        Or am I dreaming?

      • Chernynkaya says:

        Tell me about it. These pudnuts comment WAY over their level of expertise too. Robert Reich--WTF does he really know about politics? (I read his Wiki entry recently, and he’s an expert in labor law basically). Yet he’s always at the ready to opine stridently about anything and everything. Of course, that’s what pudnuts DO, but Reich has a patina of gravitas because he was Clinton’s Sec of Labor. I’ve noticed the same with Nate Silver and Chuck Todd: They were essentially statisticians and pollsters. What do they know about politics any more than you and I do. Peter Principle.

        • You’re preaching to my choir as well Cher.

          Reich is the worst type of pundit in my mind because when he actually held office and he did not do anything to promote the progressive causes he espouses now. I mean where were all the labor protections in the free trade agreements Reich?

          Even though I wish the trade agreements had more protections for labor under Obama at least they have some.

          Reich is the epitome of what I call a reborn progressive since he did nothing progressive when it mattered but criticizes Dems in office who are responsible for much more progress than he ever realized.

  10. Not picking on anyone but one pet peeve is when people talk about the size of the legislation in terms of documentation. Well duh the ACA covers covers 1/7 of the entire economy including changes in Medicare and Medicaid. I understand people just don’t like things they don’t understand, that’s human nature but really. The fact that people actually applauded Cain for saying he would limit all bills to three pages showed this mentality to the extreme.

    I guess because I come from the high tech field I understand that you just can’t dumb down complex matters but so much. For example you can’t put how to build an aircraft carrier or paper mill (my expertise) on three pages. I know there is allot of legalese in the ACA but the majority of the language was necessary.

    Romney talks about how his MA law was only 70 pages well that was one state. Multiply it by 50 and you get 3500 pages. I know it’s not a linear multiplier but just trying to make a point.

    Sorry for the rant.

    • Chernynkaya says:

      Same here, KQ. I never understood that line of attack. As you say, this is an ambitious project. Think of the complexity of health care. I took a class in medical coding a few years ago, and the code book alone is thousands of pages. That’s just the billing codes!

      Conversely, some very bad legislation is overly simplistic, such as that Stand Your Ground law. Lazy lawmakers couldn’t be bothered to think it through; couldn’t be bothered to imagine how such a simpleton law could play out. And that’s also why ALEC is successful: they know legislatures are lazy and unintelligent. They provide ready-made legislation for states to sign on to.

      • Absolutely think of the personhood bills the GOP tried to pass on ballots. Not only was the whole concept stupid but they basically could have been used to put people in jail for using contraception because they were so vague.

        • Chernynkaya says:

          That contraception bill reminded me: They don’t even freaking read the bills they pass. Gov MacDonald was (feigning?) surprise that the ultrasound bill VA passed was invasive. GAH! What maroons!

          • I’ve come to the conclusion the GOP hates government so much that they love being terrible at it. Look at the way the GOP is running their clown show of a presidential primary. They can’t count the votes, refuse to count the votes, take away delegates at random, etc. I mean look at how badly Romney is running his own campaign and he’s suppose to be the competent one. Yet we are suppose to believe they can run the country.

            • Chernynkaya says:

              It’s become a badge of honor to be ignorant and inept, as if they can display their contempt for government (and IMO by extension, for American values) by saying, “Fuck it, we’re white and privileged. Competence is for the Little People.”

    • MurphTheSurf3 says:

      KQ…..It has to fit on a bumper sticker, or a t-shirt, or in a sound bite….The contemporary American is willing to search for the truth if he can do it in 30 seconds.

      Not a rant. Truth.

      The thing about RomneyCare is that his legislation tied into a whole series of other legislative packages and programs. Much of the Mass. bill is made of reference numbers that take you to far more info.

      We are uninformed because we choose to be. Sad.

    • bito says:

      KQ, as I wrote in TO/OT 60+% of people don’t even understand how the law effects their lives. 80% of all people already have Health Insurance so the ACA Mandate wouldn’t effect them at all, however it, the ACA, would vastly improve their coverage.

      I completely understand and agree with your rant having watched most of the mark-ups.

      • Exactly Bito. I just came past an article that said the mandate would only affect 2% of the population. That was my point when the so-called PO died. It too only affected a very small percent of the population in it’s last iteration. The real PO died six months before when they said it would not be available for people who had insurance, so it really was never an option for the vast majority of the population. People don’t have the intellectual curiosity or to be fair the time to study these issues.

      • MurphTheSurf3 says:

        Bito…good points. And of the 80 percent who think they get noting out of ACA, most do not understand the impact on premiums, the quality of coverage and the completeness of coverage….all of which affect real costs and outcomes.

  11. BourneID says:

    Impressive and necessary. You’ve taken a 2000 page monster and condensed it into a comprehensible selection of facts that connect cause to effect. I have never been able to sort through the “jumbalya” the press has made of this issue. Your selection of related subjects is excellent, particularly the stats from the Project for Excellence in Journalism, which pretty much uncovers the dismal truth about the loss of journalistic integrity in every media. We know nothing about the bill but we do know all about the fights.

    What if? Excellent premise. What if you hadn’t written this.

  12. SallyT says:

    Murph, thank you for all this information. Very helpful. I personally think that some of the problem with all this is because so much of the benefits don’t kick in until 2014 and people haven’t experienced them yet. I have read that even people that say they are against the ACA and want it overturned still want Congress to keep the parts that have kicked in like keeping children on parents insurance plans until 26 and the pre-existing clause. These they have experience and like them. If they had have more of it and lived with it, I think there would be many more for it in its entirety. Not everyone was for Medicare when it was introduced but you will play hell in trying to get it away now. Yes, they are trying but that is a fight to be had and I don’t think they can even imagine the fight they will face!

    • MurphTheSurf3 says:

      I think that Obama and the Dems will win either way this goes. They win bigger if SCOTUS upholds the law, but if it does not then the Dems get to trot out all that is or will be lost making the GOP and the court they own look very bad.

      The polling supports your positioning. Nearly 50 percent say they want the law revoked but when the individual elements are tested the law gets overwhelming support.

  13. funksands says:

    Murph, good summary indeed. The answer to your main question: “Can the ACA survive without a mandate?” is the answer I was scanning around for this morning on the inter-tubes.

    I ran across an article by Aaron Carroll. He is a Dr. and Vice-chair of health policy and outcomes at the University of Indiana Pediatrics Dept.

    He also writes for the Incidental Economist (my fav. healthcare blog)

    His piece talks specifically about the mandate and whether or not the ACA could survive. His take? Sure!

    “We don’t need the mandate. What we need is something that helps us avoid adverse selection and the death spiral.

    That could have been accomplished with a tax credit. Instead of penalizing those who don’t buy insurance, the government could have raised everyone’s taxes a bit and then returned a credit to those who bought insurance. This is totally constitutional and isn’t much different than the tax deduction many of us already enjoy by purchasing insurance.

    The government could also set a waiting period for those who choose to opt out of the system. If they can’t get in until a number of years later, many people won’t want to take the chance they might get sick in the interim. They would be more likely to buy insurance.
    The government could charge a penalty for those who choose to wait before buying insurance. This is how Medicare Part D works. It also incentivizes people to buy in right away, and it’s also perfectly legal.

    Why weren’t these plans enacted instead? Well, for one reason, the mandate works better than penalties or waiting periods. The other reason is political. It was hard enough to pass the law without attaching a “tax.” So Congress went another way, and now it potentially pays the price.”

    He goes on to say that all of this doesn’t matter anyway, because if it was the mandate that people actually cared about we could fix it. Instead the mandate is merely the portal to argue about the entire law.

    Personally I think the SCOTUS will uphold the provision. I think some of Scalia and Alito’s past rulings are favorable to it, and I think Roberts is really worried about the taint of what Citizens United has meant for his court and will bend over backwards for a make-up call (as cynical as that sounds).

    • MurphTheSurf3 says:

      Funk….like the source you provided and the analysis contained within. I agree that the mandate was the wiser move. It works better than the two alternatives proposed, but there is another reason why the mandate was perceived to be a winner….the GOP strongly supported it. Members of Congress, Governors, think tanks, lobbies…favored it. They developed it as their response to Hillarycare and then held onto the idea.

      So why oppose it….because THIS fix is not THEIR fix. And Obama is public enemy #1.

      I think SCOTUS will do as you suggest for the reasons you suggest. Commerce Clause is a very strong argument; even if many have no idea what ACA does- the justices do- and they do not want to be blamed for undoing so much good; and CU has blighted their name.

    • Funk the law does that already. There are provisions to raise $1 trillion in the law half with taxes and half with Medicare inefficiencies. Those taxes will go directly to tax credits to buy insurance for millions of families.

      I do agree you can skin the mandate cat other ways and still get the same results but a tax credit alone won’t do it. Otherwise people will only buy insurance when they need it like Murph said.

      I view it this way you have a horizontal tube and if you don’t close both ends all the good stuff inside the tube spills out. That’s exactly why you have to make as many people as possible pay into the system with personal and employee mandates. Otherwise you can’t effectively cover people with preexisting conditions or offset people who game the system and still expect ER treatment when they know they are not going to pay their doctor bills.

    • SallyT says:

      I thought that the ACA does not give anything on how to enforce a penalty, therefore, there really is no penalty. I thought that was a problem also for the SCOTUS to rule on because there is no penalty.

      • MurphTheSurf3 says:

        Correct. There is no mechanism for enforcement. The law makes it clear….no one is coming after you.

      • funksands says:

        Sally, I’ve heard that wordsmithing before and quite honestly I don’t know if there is anything to it. All I know is that the Act specifically calls for a tax penalty of the greater of $95 in 2014 or 1% of income, with several exceptions for Native Americans, incarcerated individuals, religious objections, financial hardship, etc etc etc.

        • SallyT says:

          Well, Funk, I guess they talked a little about this “penalty” today. I don’t know if anything was answered yet, tho. Is it a tax or is it not????

          “The justices saw this seeming incongruity coming.”

          Justice Samuel Alito Jr
          “Today you are arguing that the penalty is not a tax,” Justice Samuel Alito Jr said. “Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?”

          Verrilli replied that he could not point to a case, but added that the Supreme Court has held in other cases that “something can be a constitutional exercise of the taxing power whether or not it is called a tax.”


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