Elocism posted:

---

i like how Yuki has a built in rationalization for when this crap gets struck down

---

Vydor posted:

---

I don't really know what "gut" it means, I think the only significant thing that will happen is the mandate will be over turned, but that will be a major problem for the bill.

---

Ashmaele posted:

---

Yeah I think 'gut it' really means 'rules individual mandate unconstitutional' because that would have the effect of 'gutting it.' I don't think anyone could reasonably argue that the mandate on insurers to cover pre existing conditions could possibly hold if the individual mandate is not upheld, otherwise people would just wait until they get sick to get insurance and the system would collapse.

---

Ashmaele posted:

---

How about mandatory STFU???

---

Friarspam posted:

---

Maybe next we can mandate that everyone must go to college. Then we could start a program where you have to get a license for "community sensitivity training" (with a continuing ed requirement). How about mandatory nutrition training? Hey, people could even be required to eat healthy foods and the results could be printed out so that we could all file our nutrition report with the feds, kind of like income taxes.


I'm sure I could come up with some more "progressive" ideas here but this makes the point.

---

Quote:

---

Two of those conservatives, Samuel Alito and Antonin Scalia, seemed openly hostile to the government’s arguments. The justices don’t always tip their hands and, so, it’s impossible to know what they really are thinking. But they certainly seemed prepared to strike down the individual mandate, on the grounds that it unfairly compels individuals into a form of commerce, buying insurance, they would not do on their own.
Alito seemed particularly concerned that, because of the mandate, young, healthy people would have to pay more for their insurance, because they would effectively be subsidizing the sick. In a direct response to the government’s argument that the law’s minimum coverage requirement is “necessary and proper,” Scalia responded that it was clearly necessary but not proper – and that government could avoid the problems of the insurance market by simply not requiring insurance companies to cover people regardless of pre-existing condition, as the law will do.


At various points the liberal justices made counter-arguments through their own questions – that cross-subsidy of sick to healthy is the whole point of programs like Social Security (Ruth Bader Ginsburg), that everybody gets sick eventually (Elana Kagan), that the failures of the insurance market are a clearly national problem empowering the federal government to use its powers (Stephen Breyer), and that functionally the mandate is no different than a clearly constitutional tax credit (Sonia Sotomayor).


They also got Clement to admit that a requirement that people buy insurance when they show up at the hospital would be constitutional, prompting Kagan (I think it was her) to question why it was unconstitutional to require purchase beforehand. They also got the side challenging the law to admit that, short of a government takeover of health insurance, the government might have little ability to make insurance universal while still preserving the private insurance industry.


As readers know, I find those arguments persuasive. If Alito or Scalia felt similarly, they did not indicate it.


The question at this point is what John Roberts, the chief justice, and Anthony Kennedy will do. They sent more ambiguous signals. Kennedy, near the end, seemed interested in finding some middle constitutional ground that would justify the mandate but not other government regulations. Roberts seemed to grasp the dynamics of the health insurance market, picking up on the liberal justices’ line that everybody is, by definition, in the health care market because everybody gets sick. That argument alone could carry the day – and, of course, there's the possibility he'd vote to uphold the law based on the government's taxing power, a possibility he hinted at Monday.

But both Roberts and Kennedy questioned Verrilli more aggressively, invoking arguments that came from the right – including, yes, references to broccoli. Over and over again, they and the other conservatives asked for a limiting principle – a reason to think approving the mandate woudn’t lead to unlimited federal power. Verrilli struggled to answer the question and, at times, seemed unsure of whether to call upon the Commerce Clause or Necessary and Proper Clause as justification. (In its briefs, the government invokes both, for separate reasons – more on that soon.)


Reaction in the press room, although mixed, seemed more negative than reaction elsewhere. My canvassing of legal experts found pretty mixed opinions on how the case will turn out. (Walter Dellinger, the Duke law professor who supports the law, pointed out that the plaintiffs effectively made it clear that the only way to create national health insurance would be through a single-payer system, an idea most conservatives detest.)

---