Health Care Reform Makes Its Supreme Court Debut Today

When the president signed the Affordable Care Act into law, it was pretty clear that the legislation would ultimately be decided by the U.S. Supreme Court. And now, two years later, the Supremes will be hearing its first arguments on the matter.

While hearings later on this week will deal with the constitutionality of the portion of the law requiring everyone to have insurance or pay a penalty come tax time, today’s 90-minute session deals with a little-discussed but crucial issue — whether or not anyone can challenge this piece of the legislation.

At issue is the 145-year-old Anti-Injunction Act, intended to stop people from suing over a tax provision that has yet to be enforced.

If the Supremes find that the Anti-Injunction Act both limits the court’s ability to rule on mandatory coverage before it’s enacted and that the act applies to this portion of the health care bill, then it would effectively delay any legal challenges on the mandatory coverage rule until at least 2014.

Of interest is the fact that neither the White House nor the Attorneys General from the states challenging the Affordable Care Act want to negate the challenges using the 19th Century legislation. Both sides would rather have the Supreme Court rule on health care reform as soon as possible.

So in addition to lawyers for the administration and the challengers, there will be a third lawyer, appointed by the court, to argue that the Anti-Injunction Act limits the court’s authority on yet-to-be enforced tax provisions and thus prevents the current challenges from going forward.

“The decision of the court of appeals should be vacated and remanded for dismissal of the Respondents’ challenge to [the mandate] for lack of jurisdiction,” reads the closing of this attorney’s written argument.

The U.S. Solicitor General will have 30 minutes to argue that while the Anti-Injunction Act does limit the court’s jurisdiction, it’s a non-issue because it does not apply, as the mandate and its penalties are not a tax like the ones the legislation was intended to protect.

And a lawyer for the challengers will get 20 minutes to argue that the Anti-Injunction Act does not actually prohibit the court from ruling on tax provisions.

The Justice Dept. had previously tried to invoke the Anti-Injunction Act in some of the lower-court challenges, with mixed success. As the cases climbed the appeals court ladder, that argument fell by the wayside.

For a law that’s been on the books for so long, the courts haven’t always had a consistent opinion of the Anti-Injunction Act (check out the SCOTUSblog review of the law and its potential impact on the Affordable Care Act here), so it’s hard to say on which side the Supremes will come down.

We’ll all find out when the court issues its ruling, most likely in early June.

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  1. dragonfire81 says:

    I hope the anti injunction challenge fails. There needs to be a ruling on this now. If the injunction succeeds, opponents will argue Obama swayed the court to delay the challenge and help his re-election chances.

    • Kuri says:

      The only thing helping his re-election chances at this point are his opponents.

    • dush says:

      They just need to change the law to not include a tax penalty then it wouldn’t relate to an injunction on taxes.

      • hansolo247 says:

        Unfortunately, that mandate is the only thing that makes the HCR “Affordable”.

        I use the quotes there for a reason.

        I think a national OPT-IN plan is what should happen. 5% taxes, no deductions, no credits, no exemptions, and you can have it.

        We can’t have nice things like national health care as half don’t pay federal tax, and another quarter is paying less than 10%.

        • NeverLetMeDown says:

          Actually, we CAN have nice things like national health care, if we cut back on military spending, and increased taxes back to historical levels. The “half the country doesn’t pay income tax” is a red herring, since the reason they don’t pay income tax (but do pay payroll tax) is that they don’t make very much money. The bottom 40% of households only generate 12% of total income.

          • dush says:

            So half the country is already too poor to pay taxes but we should raise taxes back up to historic levels?

            • tooluser says:

              Logic? Reason? Really?

              What’s wrong with you, man?

              It’s FREE!! Everything is FREE!!!!

            • cigsm says:

              & it’s the top half that’s not paying enough! In fact, the top 10%

              • dush says:

                So the top half, the only half that’s already paying taxes, are the ones not paying enough.
                So if they just stopped making so much money then they would be paying enough?

    • spamtasticus says:

      If the government, insurance companies, lawyers and the millions of middle men they represent got ejected from between the doctor and the patient nobody would need insurance because everyone would be able to afford their own healthcare. Furthermore, I would not have to pay for my cocaine snorting neighbor’s ass and the little old lady that lives on the other side of us would not have to pay for him and my motorcycle racing ass.

      Problem solved!

  2. bhr says:

    It’s an ugly situation, as I think there needs to be a ruling on the mandate itself, and an enforcement of the AIA would only delay future court arguments.

    Personally, I have a real problem with the mandate, not because I don’t believe in universal health care, but because I don’t believe the government has the right to force citizens to purchase a third party product.

    • Mr. Fix-It says: "Canadian Bacon is best bacon!" says:

      I agree; effectively forcing people to do business with a third party (regulated or otherwise) is offensive. The whole ‘Affordable Care Act’ feels like a step backwards, not a step forwards.

      • bhr says:

        The insurance companies friggin’ love it. No new competition (Out of state or government) and a drastic increase in customers without a significant increase in oversight or incentive to lower prices.

        • Nigerian prince looking for business partner says:

          They absolutely do, the legislation was essentially written by big insurance and big pharm.

          With the comprehensive insurance mandate in place, all incentives to control costs go away. Insurers complaining about MLR requirements and no-cost share services are just red herrings — They will be picking up millions of customers, with premiums subsidized by the federal government, in a system that will funnel virtually all medical spending through their hands, with high premium/low deductible policies prioritized over low premium/high deductible ones. It’s a massive win/win for big insurance.

        • Mr. Fix-It says: "Canadian Bacon is best bacon!" says:

          Honestly, making this work out for everyone isn’t that hard: you get the drug companies to pony up 70% of the Health-Care ‘pool’, and the remaining 30% comes from the taxpayers, ensuring a perpetually regenerating account from which legal residents of the state can draw.

          The health care system covers a very basic and general area of necessary treatments: physician visits, surgical, diagnostic, and therapeutic procedures, pre/post-op care, maternity care, radiology services, and some forms of immediately-necessary dental surgery.

          That leaves a very large area for the medical industry to still make a profit off of, not the least of which would be… shock, gasp… prescription drugs. So Big Pharma helps keep people well enough to keep buying their medication, and perpetuate the cycle.

    • Nigerian prince looking for business partner says:

      I completely agree. It’s definitely a scary precedent. I suspect the first mandatory service we’ll see is some sort of retirement account with whichever banks happen to be the largest donors to Congress.

      • Akuma Matata says:

        you mean, like Social Security?

        • Nigerian prince looking for business partner says:

          If I had to cut a check each month to Bank of America, then yes, but because it’s paid to the federal government, SSI is a tax.

    • deathbecomesme says:

      I agree that the way it was done is wrong. It was done in a way that only benefited the insurance and drug companies. There is no cross-state competition which would have lowered rates for us. We (citizens) were the ones shorted here. But there is no doubt that we need some sort of health care reform. To argue that is to keep your head buried in the sand.

      • Nigerian prince looking for business partner says:

        I also live in a state with high insurance premiums. It’s incredibly frustrating knowing that if I moved across state lines, I could reduce my premiums by about 40%. I paid about $12,000 in premiums last year for a policy with a $5,000 deductible, so this definitely hits close to home.

        This year, I’m paying around $5,000/year for a policy with a $10,000 deductible and no maternity, prescriptions, or dental/vision, with the added bonus of paying the premiums with after-tax dollars.

      • BennieHannah says:

        I agree it’s a shitty compromise that doesn’t really solve the much larger problem, but I think its the best that can be done right now with the wide Blue/Red divide. It’s small nudge in the direction of a nationwide insurance plan and that nudge will eventually become a push toward consumer-driven policies and perhaps one day we’ll catch up with the rest of the First World when it comes to healthcare cost vs. outcomes. (My husband and I have great health insurance that we pay dearly for, own our own home, have a savings safety net, have made all “the right” frugal financial choices and healthy lifestyle choices, and yet if we were to experience a health crisis that caused a job loss, we’d be financially ruined. Oh, and I have to wait a six weeks to see my dermatologist about a suspect spot on my ear and I can’t see a doctor about my foot pain until it becomes bad enough for surgery — the dermatology wait probably won’t matter, and I can google for at-home treatment/exercises/orthodics that might help my foot pain and prevent surgery, but the rallying cry against government health care is “rationing” and “waiting” and we get plenty of that even with our super expensive private health care.)

        If and when SCOTUS rules on the mandate portion, I imagine EMTALA will play a big role. If private hospitals are required to accept emergency patients that lack the ability to pay, then none of us are able to “opt out” of the medical system. In the case of an emergency illness or injury, you are taken to the hospital emergency room for stabilization and evaluation, at the very least. That makes the mandate quite unlike state requirements for car insurance, which you can opt out of by not driving a car.

        • Nigerian prince looking for business partner says:

          Aren’t medical providers who don’t accept Medicare, Medicaid, or federal funds exempt from EMTALA? In practice, virtually all hospitals receive federal funds but to me, it seems reasonable that if a provider accepts federal money, then they should play by the government’s rules. If they’re not happy with EMTALA provisions, they are free to opt out.

          ***************

          “EMTALA applies only to “participating hospitals” — i.e., to hospitals which have entered into “provider agreements” under which they will accept payment from the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) under the Medicare program for services provided to beneficiaries of that program.”

          http://www.emtala.com/faq.htm

    • cigsm says:

      So you disagree with car insurance then? Because it’s the same thing.

      • alSeen says:

        No. It. Isn’t.

        Car insurance is mandated based on your decision to drive a car on public roads. There are millions of people in the US legally without car insurance.

        The ACA individual mandate is predicated on your decision live in this country and to not kill yourself.

      • OutPastPluto says:

        The federal government doesn’t force you to buy liability insurance. It doesn’t have the power too.

        Are people really stupid enough to completely miss the whole “state” versus “federal” thing going on.

        Although those forced state minimums make a great case study. Those policies are pretty much just a gift to insurance companies that can charge highway robbery rates to people who are otherwise uninsurable. People that have nothing to lose are forced to pay high rates for worthless insurance that’s not nearly good enough.

        In both cases, I don’t think forcing the bottom 5% of the market to pay for insurance plans they cannot afford does any good for anyone.

        Although that’s an entirely separate question from whether or not the Federal government should be allowed to do something that’s not a part of it’s enumerated powers. The federal government is supposed to be operating under a “default deny” policy here. People tend to forget that.

  3. Cat says:

    We need a single – payer system, not mandated purchase of overpriced third party products. I can’t find anything in the constitution that allows for forcing all citizens to purchase products from private corporations.

    Let’s go back to the drawing board – and this time, leave the insurance and pharmaceutical companies out of it.

    • Dallas_shopper says:

      Came here to say that.

      + 1 gazillion.

    • Nigerian prince looking for business partner says:

      I completely agree. In the short term, there are many reforms that can reduce premiums, lower taxes, and improve coverage. Or at the very least, stave off the collapse of the insurance/medical bubble for a few more years.

    • Marlin says:

      States already force people to buy car insurance if you own a car, Mass has “romneycare” and as far as I see has held up in court.

      I don’t agree with 100% of the law but better than nothing. Look how many people are now up in arms, for and against it, that would not have even blinked if nothing was done before.

      • Nigerian prince looking for business partner says:

        The legal ramifications of a state law applied towards an optional activity (driving) are significantly different than a federal law mandating purchasing a product from a private, for-profit company, as a stipulation for being alive. In terms of Romneycare, states are held to different Constitutional standards than the federal government.

        Either way, the odds of the mandate being upheld do appear strong.

      • Akuma Matata says:

        States can do many things the Federal gov’t cant — see Article 1, Section 8 of the US Constitution.

        • thezone says:

          You do realize that the first POTUS signed a bill that mandated that every able bodied adult male needed to purchase many items just in case we needed them for the militia. These were all private citizens who needed to use their money to buy goods like guns, knapsacks and ammunition from private companies. I would think that if there were any administration that would know if the federal government could compel a private citizen to do business with a private company it would be the first administration.

          • Nigerian prince looking for business partner says:

            What was the penalty for not purchasing the items? Was the legislation challenged in court?

            • thezone says:

              There don’t seem to be any challenges to the act and it does not say what the exact penalty was for not following the act. However, that does not change the fact that the house and senate passed it and it was signed by Washington.

              • Nigerian prince looking for business partner says:

                How many people were prosecuted for not following it?

                I’d really like to learn more about it. I’m guessing the most common response that you would get with that argument is that constitutional interpretations change over time (any 18th c. prison would be considered cruel and unusual today but was legal at the time). This would especially be the case for a law that was never implemented or challenged in court.

                • thezone says:

                  My issue with what you’re saying is that most of the people against the act are original intent people. They aren’t really concerned about the changes in interpretation over time. In this instance it should be fairly obvious that the second congress of the united states would have a fairly good understanding of that original intent.

                  I honestly see very little way the court could rule this unconstitutional if they follow precedent. Of course we’ve seen this court ignore precedent so I wouldn’t be shocked if there is a 5-4 decision against.

                  • Nigerian prince looking for business partner says:

                    The mandate will absolutely stand. It’s a massive wealth transfer from the American people to giant corporations. SCOTUS is all over that.

          • partofme says:

            The biggest problem with this argument is that Congress isn’t required to spell out what Constitutional authority they are drawing on for a particular law. Thus, it’s difficult to say that they had in mind the Commerce Clause rather than the Militia Clause. Given the history of each, it seems a little bit absurd that they believed it was justified via the former, rather than the latter.

    • Evil_Otto would rather pay taxes than make someone else rich says:

      +1.

      I have $1200/month in premiums that I’d much rather send to the government in order to provide everyone in the country with access to health care.

      • Nigerian prince looking for business partner says:

        Ouch, $1,200/month? That must really suck.

        I was paying about $1,000/month last year and when rates were bumped up to $1,200/month for January, we switched over to a $10,000-deductible HDHP, saving about $10,000/year in premiums.

        It will protect us from bankruptcy but that’s about it but it sure beats paying out ~$15,000/year in premiums, plus paying for the deductible, and extra taxes on top of it. It will definitely sting in 2014 when these types of plans go away due to MLR & comprehensive insurance requirements.

      • Kuri says:

        +1

        I would be happier paying if I knew I was helping a sick kid I don’t even know instead of helping some executive who doesn’t give a piss about anyone keep his limo.

    • Akuma Matata says:

      Single payer won’t fix the reason healthcare costs are so high — the purchaser of care is detached from the consumer of care.

      • Nigerian prince looking for business partner says:

        Not in all cases. Those of us with high deductible plans bought in the non-group market are very aware of the cost of insurance and the cost of health care, because we’re cutting checks for each.

        • Akuma Matata says:

          And your situation represents such a small piece of the whole pie (fed spending accounts for 1/2 of all healthcare spending), it does not introduce real market forces on insurance companies or medical professionals

          • thezone says:

            Really? You think that people should decide what healthcare coverage they receive the same way they buy a television, a loaf of bread or a home? The more expensive we make coverage the less it will be used and that isn’t good for any of us. It causes a loss of productivity and increases sickness among us all. Issues that could be taken care of simply turn complicated because people “can’t afford” to see a doctor. Market forces don’t translate well to areas where you are talking about life and death.

            • OutPastPluto says:

              If you can’t afford a trip to the doctor then you either living in a completely reckless manner beyond your means or you should be a part of the part of society officially classified as “poor”.

              Basic healthcare is no less expensive than a lot of the nonsense that consumer pay for and quite often borrow to do so. Americans don’t need to be any more insulated from this fact.

              People need to cut out the “gimme gimme” and start asking serious questions about cost containment and do more than just blindly assume that big brother is going to make everything better.

          • exconsumer says:

            The US pays, private and public expenditures added together, twice what most other countries pay per capita, and the US is arguably the most deregulated system among economically advanced countries. . . . and we get the same or slightly worse health outcomes on average. The rest of the world shows market forces to be, if anything, detrimental to the price of healthcare. Everyone who outperforms the US in terms of cost and outcomes (almost everyone) does so by way of more regulation, not less.

            • Nigerian prince looking for business partner says:

              …and the ACA further entrenches the ridiculous system.

            • Akuma Matata says:

              Yes, really. I don’t purport to know what’s in the best interest of anyone but myself and my family. To say that I know how to live your life better than you should be received as the highest of insults. People make all sorts of decisions that have varying levels of consequences and the sky hasn’t fallen. The primary thing we should concern ourselves with in ensuring that, as much as possible, those who create the cost incur the cost.

      • pythonspam says:

        It will fix the reason healthcare costs are so high.
        Procedures and medicine cost so much because private businesses set their own prices, often because they have to maintain margin to offset the system-wide costs of treating the uninsured and more often because they have shareholders that insist on double-digit profits year over year.
        Not that I am saying that profit is a bad thing or that companies don’t deserve to reap the benefits (and payback for) innovation, but we as a society should ask healthcare should really be a for-profit industry.
        Nowhere in the Constitution does it say that you have a right to use roads or education or have clean water, but these are things that we have decided are univerally good for individuals and for society. The glut (no fat joke intended) of aging baby boomers is going to make us take a hard look at whether universal health care is a good thing for society. Should we really be spending 17.3% of GDP (2010 numbers, but expected to grow to 20% in 2020) on healthcare, especially on procedures and medicines that have been standard practice for many years?

        • Akuma Matata says:

          “Procedures and medicine cost so much because private businesses set their own prices, “

          When has gov’t price fixing ever made a situation better? Just look at the 70’s and Nixon’s fixing the price of oil. Sure, the cost of a gallon of gas was affordable, but you saw the supply drop substantially which was reflected in the long lines. That’s not an anomaly… that is a consistent and time tested reaction to fixing one side supply/demand curve.

          “often because they have to maintain margin to offset the system-wide costs of treating the uninsured”

          Maybe we should end that asinine law then. After all, should a grocery store be forced to give me food even though I can’t pay for it?

          “but we as a society should ask healthcare should really be a for-profit industry.”

          If I, as a doctor cannot make a return on my investment of becoming a doctor (time and money invested based on the potential to earn a decent living), then why would I, or anyone, move into or stay in that field? What construction company would get involved in building a hospital if there was no chance of making a profit, especially when they can turn a profit at another project? Where do you draw the line at who can and cannot turn a profit?

          “Nowhere in the Constitution does it say that you have a right to use roads or education or have clean water, but these are things that we have decided are univerally good for individuals and for society. “

          And the things you mentioned are largely administered and executed at the state and local levels (as they should be).

          “Should we really be spending 17.3% of GDP (2010 numbers, but expected to grow to 20% in 2020) on healthcare, especially on procedures and medicines that have been standard practice for many years?”

          What would you say, then, is the proper amount of money to spend on healthcare, and how do you arrive at that number? Truth is, no one knows what the “right” amount is. The fallacy of central planning is the idea that a group of people can determine the best way to orchestrate the millions of transactions and decisions that occur on a daily basis. History has shown time and time again what a waste of time and resources that is.

  4. partofme says:

    This is a case of such broad interest that they’re releasing the tapes of the arguments the same day they happen. I know exactly what I’m doing the next three evenings.

  5. TheUncleBob says:

    It’s a tax, it’s not a tax… man, this thing’s tax status tends to fluctuate based on whatever the current challenge against it is.

    • partofme says:

      It’s going to change each and every day this week. Sometimes multiple times within a day.

      • partofme says:

        JUSTICE ALITO: General Verrilli, today you are arguing that the penalty is not a tax. 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?
        GENERAL VERRILLI: No, Justice Alito, but the Court has held in the license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax. And that’s because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn’t have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.

        Sotomayor then steered the conversation to a converse example from the Bailey child labor tax cases… where the tax was subject to AIA, but not within the taxing power… I lol’d.

      • partofme says:

        …my second biggest lol (got an audible lol from the crowd, as well)…

        JUSTICE SOTOMAYOR: My question was, if we deem this a mandatory claim processing rule -
        MR. LONG: Right.
        JUSTICE SOTOMAYOR: — what cases do you imagine courts will reach on what grounds? Assuming the Government does its job and comes in and raises the AIA as an immediate defense -
        MR. LONG: Well, that’s -
        JUSTICE SOTOMAYOR: — where can a court then reach the question, despite -
        MR. LONG: That would certainly be the first class of cases, it occurs to me, where, if the Government does not raise it in a timely way, it could be waived. I would think plaintiffs would see if there was some clever way they could get a suit going that wouldn’t immediately be apparent that -
        JUSTICE SOTOMAYOR: Assumes the lack of competency of the Government, which I don’t, but what other types of cases?
        JUSTICE SCALIA: Mr. Long, I don’t think you are going to come up with any, but I think your response is you could say that about any jurisdictional rule. If it’s not jurisdictional, what’s going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent. So it seems to me it’s a question you can’t answer. It’s a question which asks “why should there be any jurisdictional rules?” And you think there should be.

    • tooluser says:

      Legally speaking, that’s exactly correct, and as things should be.

  6. Nigerian prince looking for business partner says:

    In the meantime…

    I’ve followed this debate since the beginning and have read the ACA line-by-line numerous times and there’s one thing I simply cannot figure out.

    Can anyone explain to me why Congress and the President oppose letting those of us who buy non-group insurance pay our premiums with pre-tax dollars? When a typical family PPO costs in the ballpark of $15,000/year, that easily amounts to over $3,000 worth of additional taxes for a non-group vs. group policy.

    • alSeen says:

      Because as much as He say’s he’s trying to help middle class tax payers, he isn’t.

      Did you know that a change that happens next year (after the election) is that Flex Spending accounts will be capped at $2500?

      A change that already happened was that FSAs can no longer be used to buy OTC medications.

      Another medical expense tax change is that itemized medical deductions will have to be reduced by 10% of AGI instead of 7.5%. A 2.5% increase may not seem like a lot, but it’s an increase of 33 1/3% of the previous amount.

      Other tax changes include

      The Child Tax Credit will drop from $1000 to $500 per child
      The top marginal tax rate on Social Security benefits will rise from 30% to 34%
      Top FICA rate for Medicare Part A increases from 2.9 to 3.8% (this affects most small businesses)
      2.3% excise tax on medical device manufacturers

      The Alternative Minimum Tax is set to affect 30 million tax payers next year (up from 4 million)

      Income tax rates will increase as follows

      10% will now be 15%
      15% stays
      25% increases to 28%
      28% increases to 31%
      33% increases to 36%
      35% increases to 39.6%

      • Nigerian prince looking for business partner says:

        I’m fully aware of all of those tax increases; though, I suspect we’ll be seeing last minute reprieves in the child tax credit and AMT.

        The revenue section of the ACA goes into detail on most of those increases. The other ones that really hit my family was the elimination of many approved HSA purchases, as well as not adjusting maximum HSA contribution to keep up with medical inflation. The elimination of HDHP plans (from MLR & comprehensive care requirements) will really slam us in 2014.

        I was convinced that there would be enough of a political shitstorm towards those de facto (and outright) tax increases, that they would have been axed before implementation. For whatever reason, it simply never happened. The CBO just released projected revenue increases as a result of them, so I doubt that we’ll be seeing Congress or the President backtracking on them.

        The CBO analysis is also predicting that 5 million people will lose coverage through work in 2014 and will then be buying plans on the exchange, using after-tax dollars, increasing overall revenue. While it’s good for deficit reduction, it creates a massive tax burden for the middle class.

      • pythonspam says:

        “The Child Tax Credit will drop from $1000 to $500 per child”

        Forgive a childless person for saying this, but why should the federal government get less tax revenue because you have more kids?

        All we hear nowadays is “personal responsibility” but then the government keeps subsidizing child bearing.

        • hansolo247 says:

          IMO, pretty much all of the popular deductions and credits need to disappear.

          Mortgage interest, children, etc.

          Property/state tax I can understand, but the rest need to go.

  7. prizgrizbiz says:

    The most inappropriate name for an act since ‘The Aristocrats’.

  8. damicatz says:

    On one hand, the Supreme Court is stacked with Rethuglicans who would love nothing more than to strike anything down that Obama creates.

    On the other hand, the Supreme Court is also very federalist and it is very rare in this day and age that they put a limit on federal power. Over the last 60 years or so, they have interpreted the commerce clause as a license for the federal government to do whatever it wants.

    • Nigerian prince looking for business partner says:

      Beyond all else, SCOTUS has proven to be very pro-corporation in the last several years. Letting the mandate stand will be a huge win for giant corporations who have the money and influence to buy off the President and Congress.

    • alSeen says:

      The idea that the commerce clause can be used to force you to buy something is going to be an idea that goes too far. I wouldn’t be surprised if the vote is 6-3 or even 7-2 to remove the mandate. The vote that will be 5-4 is the one that says if the mandate can be severed from the rest of the law.

      And the argument that the President’s people are making that we all buy health care sometime, so this is just saying when you have to pay for it is bunk. Health insurance is not health care. You can buy health care any time you want without insurance. Sure it’s expensive, but it’s still possible. The mandate is not forcing you to buy health care, it’s forcing you to enter into a contract with a private business.

      Using the logic of the administration, they could also pass a law that says that every single person has to enter into a contract with a food co-op. That co-op would then be required by the federal government to pay for food that the individual does not want.

      • Marlin says:

        “You can buy health care any time you want without insurance.”

        Not always. After my motorcycle accident, other persons fault, I called a couple of doctors and they would not see me without insurance. The doctors office I went that the ER made an appointment with did not ask how I was going to pay but what insurance I had. When I said none it was like an alarm went off and they told me I have to wait for a payment specialist first before I could see the doctor.

        So yea the ER patched me up but after that its not so simple.

        • Nigerian prince looking for business partner says:

          I’ve had a high deductible plan since about 2005 (it was $5,000 but now $10,000). Providers seem to treat it the same way they treated me back when I was uninsured. They always require us to pre-pay the deductible or put down a substantial deposit prior to being seen.

          They do pretty much whatever they can to guarantee payment. I know people with comprehensive insurance who run into the same thing — They have to pre-pay for care and are reimbursed when insurance reimburses the provider.

        • OutPastPluto says:

          If you are in an automobile accident, your conventional health coverage might tell you to go take a hike. There’s special insurance riders for that. They are very cheap and effective. However, too few people know about them and your agent certainly won’t clue you in.

          Think of it as one of those little things that sites like this one should make special effort to mention (but don’t).

          Auto insurance “med pay” is cheap and relatively low bullsh*t when compared to a conventional healthcare policy.

      • exconsumer says:

        “You can buy health care without health insurance”

        Sort of, but that ‘health care’ would be, by definition, incomplete. Health problems among a large group of people aren’t a mystery to figure out: some people will have certain issues, some people will not, and there’s no reliable way to tell ahead of time. This makes insurance (or any plan where all individuals pay small amounts consistently so that large payments can be made for the few who require expensive treatment) a perfect solution when it comes to health care. It reflects the phenomenology perfectly. You’d never want to opt out, becuase you’d never not want to be covered. You’d never want to pay for it out of your own funds, even if you could afford it, because the risk/reward of participating in the insurance is likely to cost you less in the long run. Even the super rich buy insurance.

        So at other points in our history, where there was only so much that could be spent on healing someone, Healthcare =/= Health Insurance. Perhaps one day in our future our technology will change and make healthcare far more affordable, mitigate or remove the costs of those large but infrequent expenses; and when that day comes, Healthcare =/= Health Insurance. But for now, I’d argue that Healthcare = Health Insurance. If you don’t have health insurance, you don’t really have access to everything modern healthcare can provide. And if you could pay for that out of pocket, you’re not purchasing things in an efficient or risk managed way.

      • cigsm says:

        “The mandate is not forcing you to buy health care, it’s forcing you to enter into a contract with a private business.”

        Uh oh, lies. Nobody’s forcing you to enter into a contract with a private business. You have the option to opt out.

  9. Loias supports harsher punishments against corporations says:

    Sounds like the Anti-Injunction Act is a broken legislation if it’s enforcement isn’t even consistent among Supreme Court justices.

  10. Maltboy wanders aimlessly through the Uncanny Valley says:

    If Democrats are so interested in *affordable* health care, then why did they balk at attempts to add wording to allow interstate competition between providers and cap malpractice awards? Could it be because they are in the hip pocket of Big Pharma and the attorneys?

    • damicatz says:

      Yeah, let’s let all the insurance companies run to the state with the most pro-business anti-consumer rules possible.

      Health insurance companies are a scam. A proper solution puts them out of business.

      • Nigerian prince looking for business partner says:

        I’d kill for the chance to buy insurance from a low-cost insurance state.

        It sucks that I’m stuck buying it from a state with such high community ratings. If I moved across the river, my rates would drop 40% overnight.

    • Marlin says:

      Have something to show “cap malpractice awards” would have any REAL reduction in rates for users and not just more profits for insurance companies?

      • Maltboy wanders aimlessly through the Uncanny Valley says:

        $41 billion over ten years. It’s a start.

        http://www.factcheck.org/2009/10/malpractice-savings-reconsidered/

        • OutPastPluto says:

          So do you know any actual doctors that have gotten a rebate on their premiums?

          All of the doctors I know get abused on both ends by insurance companies first reaming them on med-mal and then trying to pay them pennies on the dollar for treatments. Government programs like medicare and workers comp are even worse.

          After California enacted tort reform, they had to enact explicit price controls on premiums before the decreased. Although they are still kind of gruesome either way.

    • exconsumer says:

      Because deregulated health care systems do not provide affordable health care and never have. Health care in the US, arguably the least regulated healthcare system among advanced countries, pays twice (or more) the amount other countries pay for the same health outcomes (or slightly worse, depending on the country). Every country that outperforms the US in terms of cost does so by way of tighter regulations: Single-payer, outright socialization, price controls, market controls, etc.

      • Maltboy wanders aimlessly through the Uncanny Valley says:

        Ever been to the Netherlands? They have really cheap state-run health care – when you can get it. It takes weeks to see a doctor and months (sometimes over a year) to get surgery. There is a nice hospital in Leiden that sits with half the floors closed because there aren’t enough doctors and nurses to staff it.

        What do you suppose is going to happen to medical care in the USA when it is no longer lucrative to practice medicine?

        • NeverLetMeDown says:

          Valid point, except totally untrue.

          Survey of health care across multiple countries. 49% of Dutch respondents report having needed elective surgery in the past two years. Of those, 96% had a wait of less than a month. On pretty much every metric, satisfaction is higher in the Netherlands than in the US.

          http://content.healthaffairs.org/content/26/6/w717.full.pdf+html

          They do this with private insurers, albeit tightly regulated ones, and a mandate for everyone to buy insurance.

          • exconsumer says:

            Thank you. I’m always amazed at how the myth of poor health care abroad persists in the face of every fact you could possibly care to gather.

        • exconsumer says:

          Sounds terrifying, til you go to google public data and compare The Netherlands and the United States in ANY measure of public health standards: Life expectancy, Mortality rate, Hospital beds per patient, etc. Over and over again they outdo the United States. And cover everyone. And spend less than we do for it. We would do well to make out with a healthcare system that ‘bad’.

          Extensive wait times for healthcare in countries where it is socialized is largely a myth. To the extent that it is true, the wait is not long enough to actually make them less healthy.

    • thezone says:

      Well, there are two reasons for this. First, the interstate argument should be called the credit card argument. You realize that the moment interstate competition several states would compete for a race to the bottom for coverage. Then they would all set up shop there and start advertising everywhere else. You know just like the credit card companies.There interest rates would be illegal in many of the states their customers reside in. Second, capping damages does not lower costs. There are states that have done it and they have not seen the drops in prices that were promised.

      • Nigerian prince looking for business partner says:

        Is it safe to assume that you don’t live in a state with above average or high insurance costs?

        I’d absolutely kill to gain access to the policies and premiums that are sold across the river from my house. Because of my zip code, my rates are 40% higher than the exact same policies sold just across the border.

        • thezone says:

          I have two questions for you.

          1. Why do you think the premiums across the river are so much better for the “exact” same policy?
          2. Why do you think the insurance industry would behave any differently than the credit card industry.

          I’d also be curious about what states you are talking about.

  11. Cat says:

    Does the Anti-Injunction Act prevent “pre-emptive” decisions? I mean, if a law was passed that required something stupid like a tax of one million dollars on every child born, would the court be prohibited from hearing an injunction against it until the tax had actually been assessed on someone?

    Sorry, IANAL, and I’ not about to look up the Anti-Injunction Act and read it all. Is anyone familiar with it who can give us a “Cliff Notes” version?

    • NeverLetMeDown says:

      Basically, yes. The Tax Anti-Injunction Act (from 1867, which is at issue here, not the Anti-Injunction Act of 1790something, which deals with Federal courts’ ability to issue injuctions) essentially says that, to challenge a tax in court, you need to first pay the tax. There are some exceptions (certain estates, bankruptcy, etc.), but they’re pretty narrow.

    • tooluser says:

      This is why the Law should never be considered moral in character. The Law will not only permit evil to happen, but often protects it and attempts to make it grow. There are moral and immoral laws.

      Hence: In God We Trust.

  12. Akuma Matata says:

    If it would be illegal for the Federal gov’t to force people to buy broccoli, how could it somehow be legal for it to force you to buy health insurance?

    • Marlin says:

      Not everyone will eat broccoli in their life but everyone will need/use healthcare in their life.

      I really hope this was /s or a joke as that was just stupid to even try use.

      • alSeen says:

        Healthcare is not the same thing as health insurance. Not everyone will need birth control in their lives, but everyone is going to have to pay for it to be covered by their health insurance under the ACA.

        • Marlin says:

          As I said to someone else above, I had several doctors that would not see me without insurance. The only place that did not tell me NO or have me meet with a “payment specialist” was the ER after a motorcycle accident, even then I was brought in an ambulance so maybe that helped, when I told people I did not have insurance. I was on the phone for almost 1/2 hour when I told one office I did not have insurance as they had no idea if they would see me or not. The eventually did but I had to bring $500 cash or cashiers check for the first visit.

          So yes in this day and age healthcare = insurance for most of the US. Unless you think ER is all the healthcare someone needs.

          • alSeen says:

            So what you are telling me is that you were able to pay cash for your health care.

            I have no problem with a private business requiring people prepay for their services.

            • Kuri says:

              Did you miss the part where he was completely unable to pay cash himself to just about every doctor he visited?

              • alSeen says:

                Did you miss this?

                ” I was on the phone for almost 1/2 hour when I told one office I did not have insurance as they had no idea if they would see me or not. The eventually did but I had to bring $500 cash or cashiers check for the first visit.”

                He had to expend a little more energy, but it wasn’t a life threatening situation. The ER had already seen him.

              • Nigerian prince looking for business partner says:

                In my area, it’s actually becoming increasingly common for the exact opposite to happen. There are many specialists who aren’t in any insurance networks. You have to pay cash up front and deal with insurance on your own, paying non-contract rates.

            • Marlin says:

              I guess you missed the part where the others said NO when I said I had no insurance. Even the doctors office the ER set me up with stopped me before wipping out a CreditCard and running it BEFORE I saw the doctor.

              • alSeen says:

                Not at all.

                You were still able to pay with cash (a cashier’s check) for your health care.

                • Marlin says:

                  facepalm

                  At 1 office, the rest said no. The other only took me due to the ER booking it and my CC. If I tried to go to them direct they would have said no also.

                  • alSeen says:

                    If you make a statement that implies that you were unable to get healthcare without insurance, and you actually were able to, you are the one that is being obtuse.

                    Like I said, I have no problem with a private company ensuring that they will be paid for the services they provide.

        • exconsumer says:

          Right, but that’s kind of the point of insurance, isn’t it? Not everyone will need chemotherapy in their life, but you pay for someone’s chemotherapy when you make payments to your insurance.

          • alSeen says:

            Insurance is a legal gamble you make with a company in which you are betting that you will get more money out of the insurance company than you put in.

            You don’t insure your car against things like oil changes, brake replacements, and new tires. You insure your car against those things that are unforeseeable. And if someone did offer an insurance plan that covered those things, the yearly cost of the plan would be almost exactly equal to the average cost of those items. It might even be more than the average cost, as there would be administrative costs for the plan.

      • partofme says:

        Sorry, champ.. but the federal government’s argument doesn’t do a very good job of distinguishing… especially via the reasoning that it’s unavoidable. The problem is that even if the healthcare market is unavoidable, the health insurance market is. Analogously, even though the food market is unavoidable, the broccoli market is. You should probably read up on the other 5 reasons why the government is arguing that the health insurance market is unique (and then read the amicus brief by economists on the other side who claim that it’s not).

        The example I really like to use is home insurance. Everyone is going to need shelter… shelter is pretty expensive… and housing is a huge part of our economy (as we’ve seen, when there are problems with the housing market, it affects the economy as a whole). Also, there are potential catastrophic losses (fire, theft, natural disaster…).

        Ok.. we’ve pretty well justified (under the gov’t reasoning) that we can regulate the housing market. What we’re going to do is require that everyone buy home insurance. I know you might be healthy now… err, i mean, don’t have a house now… but that doesn’t matter. The important part is that you’re pre-paying for what you’ll surely eventually use. Also, we don’t want to let homes get into bad shape in the first place. Your home insurance policy must cover preventative maintenance. That’s the best way to ensure that there is no cost-shifting in the market due to some people letting their house get into bad shape.. and thus bring down the market for those around them. Finally, we wouldn’t want government to be all up in your bedroom and affect your right to sexual relations, so your home insurance must cover clean sheets.

        …seriously, go read the briefs by economists on both sides… and then tell me how this reasoning fails the government’s test.

        • Akuma Matata says:

          +1000

        • Marlin says:

          Actually your house is a perfect example of the Fed and local Gov forcing you to do things.
          Try and build and live in a house without water, without blueprints showing the load bearing, a basement without an egress, etc…

          A house has a lot of federal and state regulations that makes you do things. Don’t do them and you get a big “fine” for not following the rules.

          • alSeen says:

            You are choosing to buy a house.

          • Nigerian prince looking for business partner says:

            In my area, it’s very possible to bypass all of those requirements. You just move to a rural area with no zoning, ordinances, or permits. Getting a bank to issue a mortgage, or insurance to provide coverage on such a house is an entirely different matter.

            • partofme says:

              That’s why we have a “guaranteed issue” law for home insurers to go along with an individual mandate for citizens! Heh.

          • partofme says:

            The analog to that is that you and your doctor need to follow some FDA requirements when choosing and prescribing treatments (and also not do things like run afoul of the CSA). No one is challenging that. They’re challenging the above scheme.

  13. exconsumer says:

    The government has been offering tax benefits since time immemorial, and the mandate is no different. They’ve raised your taxes by X amount, and discount you X amount if you’ve got health insurance. They do the same thing when you’ve got a mortgage or have a child, and no one argued that the government was fining people who failed to have a child or get a mortgage (even though the tax benefits to doing so are mathematically identical to the mandate in the ACA).

    I admit that they may have worded the law in a way that hurts the feelings of many a conservative, and for that I offer my condolences.

    • alSeen says:

      And if that is what they had done, it would have been more constitutional.

      They didn’t.

      The penalty for not following the mandate was implemented as a fine, not a tax. They were very specific about that fact when it was passed.

      • exconsumer says:

        Don’t really understand this position and never have. You’re ok with the government taking X money and using it towards X program . . . and its alright to target those who have failed to purchase health insurance (or fail to execute any other act) when asking for X . . but only if they say the magic words? The constitutionality of this particular issue bothers you while you’re perfectly fine with mathematically identical actions elsewhere? Why? If the government can’t tax you for NOT doing something, why is it ok to do so when worded a particular way? Your argument forbids any and all tax deductions now and forever, no way around it.

        • alSeen says:

          Because the form of our government matters as much as the function.

          Congress could have raised taxes on everyone and given those that buy health insurance a tax credit. They didn’t. Obama was very specific about it not being a tax increase.

          Tax deductions to encourage behavior are completely legal. That is not what the mandate is.

          The President didn’t even want to defend the idea that the mandate is a tax before the Supreme Court. The Court had to appoint a lawyer to argue that side.

        • alSeen says:

          To go along with my other comment.

          The government could tax every single person $600 a year and then give every single person a gym membership.

          They cannot tell every single person that they must have access to a gym membership (by buying one themselves or having one provided by their employer) or be fined $200.

    • Nigerian prince looking for business partner says:

      “They’ve raised your taxes by X amount, and discount you X amount if you’ve got health insurance. “

      But that’s not how the law was written. If it was written as an across the board tax increase, with a credit for anyone with a policy, then it wouldn’t be at the SCOTUS right now.

  14. pythonspam says:

    New idea – Congress (led by House Republicans) passes a law repealing the mandate and penalty/tax (because apparently that is the only bad part of the law).
    Issues between the states and the feds go away. All that is left is for the insurance companies to sue the feds for regulations that hamper their business model and restrict overhead/profits to 20% of their gross. Congress’s approval rating goes up because they actually did something and the ultimate outcome isn’t decided by 9 people who (despite their assurances) have no impartiality regarding the case nor financial interest in the outcome.

  15. tooluser says:

    Article. [XXVIII.]: Congress shall pass no law except that which affects itself and all members thereof in equal measure as upon the People.

    Fixed!

  16. alSeen says:

    No. It. Isn’t.

    Car insurance is mandated based on your decision to drive a car on public roads. There are millions of people in the US legally without car insurance.

    The ACA individual mandate is predicated on your decision live in this country and to not kill yourself.