OBAMA/TRUMPCARE MEGATHREAD

[Balta1701]

Today they made it plausibly seem that the 5 might step out and just outright declare Medicaid unconstitutional.

[Balta1701]

Justice Scalia does not know that the deal Ben Nelson tried to negotiate that offered Nebraska extra funding, the so-called "Cornhusker kickback", was removed before passage.

[mr_genius]

Interestingly, analysis of the arguments from this morning seem to indicate the justices are not leaning towards scrapping the whole thing, but more focusing on just the mandate. Seems like they don't feel it is their place to decide what legislative pieces work well and don't, which would indicate an inclination to only carve out the mandate and let Congress deal with fixing the bill.

 

going through 2500 pages line by line and ruling on each thing is ridiculous. all or nothing.

 

if congress wants, they can pass it again, but without the part that is unconstitutional. call it a tax and be done with it.

Edited March 29, 2012 by mr_genius

[StrangeSox]

going through 2500 pages line by line and ruling on each thing is ridiculous. all or nothing.

 

if congress wants, they can pass it again, but without the part that is unconstitutional. call it a tax and be done with it.

 

But if the other parts are constitutional, as the court seems to be saying, and the mandate is necessary and proper to carry out those other constitutional regulations....

[mr_genius]

But if the other parts are constitutional, as the court seems to be saying, and the mandate is necessary and proper to carry out those other constitutional regulations....

 

it's not necessary.

[StrangeSox]

it's not necessary.

 

They appear to be saying in their arguments that it's necessary to make the other requirements like guaranteed coverage work.

[mr_genius]

They appear to be saying in their arguments that it's necessary to make the other requirements like guaranteed coverage work.

 

just raise taxes to cover the cost.

[Reddy]

just raise taxes to cover the cost.

wait what now? you're seriously telling me the GOP wouldn't raise even MORE cane if Bam suggested THAT?

[Balta1701]

it's not necessary.

Really, without the Court having written this new standard by which they're interpreting Congress can't do that, you'd have written a completely different law. No part of it would have been constructed that way. The author isn't kidding...the mandate is essential to that bill. The bill doesn't exist without that premise.

[Y2HH]

Really, without the Court having written this new standard by which they're interpreting Congress can't do that, you'd have written a completely different law. No part of it would have been constructed that way. The author isn't kidding...the mandate is essential to that bill. The bill doesn't exist without that premise.

 

This is true, and I laid out why in a previous post.

 

Insurance only works when a larger pool are paying in than the insurance company is paying out in claims...otherwise they insurance company operates at a loss, and companies that operate at a loss go bankrupt and disappear. This goes for any sort of healthcare, including Government operated healthcare, where the income/other taxes they'd require HAS to cover their expenses, or again, it becomes insolvent. Even non-profit insurance companies cannot operate at losses. Without the mandate, the attached revisions, primarily the pre-existing clause, becomes infeasible for the insurance companies to operate...

 

TL;DR: Without the mandate, the pre-existing clause would allow you everyone to never bother with insurance...until they're sick, hurt, or suddenly need it. Insurance markets cannot work if nobody is paying in until they need payouts.

[Balta1701]

This is true, and I laid out why in a previous post.

 

Insurance only works when a larger pool are paying in than the insurance company is paying out in claims...otherwise they insurance company operates at a loss, and companies that operate at a loss go bankrupt and disappear. This goes for any sort of healthcare, including Government operated healthcare, where the income/other taxes they'd require HAS to cover their expenses, or again, it becomes insolvent. Even non-profit insurance companies cannot operate at losses. Without the mandate, the attached revisions, primarily the pre-existing clause, becomes infeasible for the insurance companies to operate...

 

TL;DR: Without the mandate, the pre-existing clause would allow you everyone to never bother with insurance...until they're sick, hurt, or suddenly need it. Insurance markets cannot work if nobody is paying in until they need payouts.

And the "Medicaid expansion" part of this bill was constructed the way it was because it was assumed it didn't need to go farther since the coverage requirements would bring the other people who needed coverage in to the health care system. If you didn't have that, either you'd have vastly increased the medicaid expansion money to cover more ground, or you'd have done a completely different bill structure (an employer mandate or just dumping them onto Medicare).

 

And if the Medicaid expansion was done a different way, then you'd need to have done the Medicare reform differently in order to bring about a different level of cost savings. And you'd have had to structure the tax provisions differently.

 

Only part of the bill that doesn't really have the "Essential mandate" was the student loan reform part. I guess that can stand.

 

This is a case where the legislators knew a court challenge would happen and could spell out how they wanted to law to function if that part was struck down, and they said "we wouldn't have written this bill at all without this portion."

[NorthSideSox72]

Might be a little different from what I said earlier, but here's the full text and story. The House initially passed a version including a "Severability" clause, saying that this part of the bill could be struck down without the rest of the bill going down and spelling out how that would work.

 

The Senate then actively removed that clause and the House passed that version which actively removed that clause when they passed the reconciliation bill. And it was replaced with this pair of statements directly stating:

The bill itself says that losing that portion would "Undercut" the bill and that the requirement is "essential".

 

If there is such a thing as legislative intent, it's right there. (More details in the full version at link).

 

 

See Balta's post above for what the Health Care Bill actually says, but yes, in general bills can have severability clauses that specifically state "If this part is later found to be unconstitutional, the rest of the bill is still in effect [or, the rest of the bill is void as well. Both happen]." I'm not sure if it's common practice, but it's definitely not unheard of.

 

I am aware they can exist, but was not aware that PPACA had one. And, reading the text, it does not. It has a statement of import and impact, which would and should be taken into account by the courts, but there is not per se severability there.

 

[Balta1701]

but there is not per se severability there.

Exactly, because they actively stripped it out and said that there is no severability.

[NorthSideSox72]

Exactly, because they actively stripped it out and said that there is no severability.

Eh? I think maybe I used poor wording. What you quoted tells me that SCOTUS can and should be able to strike down ELEMENTS of the law, without striking down the whole thing. There is no clause like what you were hinting at before.

 

[Balta1701]

Eh? I think maybe I used poor wording. What you quoted tells me that SCOTUS can and should be able to strike down ELEMENTS of the law, without striking down the whole thing. There is no clause like what you were hinting at before.

Personally then, I can't wait to have law sitting on the books reading that a clause is "Essential" when that clause is no longer on the books.

[Y2HH]

Eh? I think maybe I used poor wording. What you quoted tells me that SCOTUS can and should be able to strike down ELEMENTS of the law, without striking down the whole thing. There is no clause like what you were hinting at before.

 

The issue is the law is unsustainable and impossible to fund without the mandate.

[NorthSideSox72]

Personally then, I can't wait to have law sitting on the books reading that a clause is "Essential" when that clause is no longer on the books.

 

The alternative is to re-legislate by removing everything else, which would be in the true sense "judicial activisim". The court's job is to address problems of constitutionality and law, and only certain aspects of the law are problematic in that way.

 

The issue is the law is unsustainable and impossible to fund without the mandate.

 

Sort of. It certainly does make the law difficult to implement in some aspects. But that is for Congress to repair. It is for SCOTUS to find and determine problematic aspects of the law, not to remove dozens of related legislative items because in their subjective view it makes the law less effective.

 

[Balta1701]

The alternative is to re-legislate by removing everything else, which would be in the true sense "judicial activisim". The court's job is to address problems of constitutionality and law, and only certain aspects of the law are problematic in that way.

But that is re-legislating. It is creating a bill that would never have existed in the first place, never even been conceived of, and then telling the executive branch to figure it out until Congress un-does the law the Court created.

[NorthSideSox72]

But that is re-legislating. It is creating a bill that would never have existed in the first place, never even been conceived of, and then telling the executive branch to figure it out until Congress un-does the law the Court created.

I completely disagree. It is far more intrusive, and outside the intended realm of SCOTUS, to knock down the whole law, then it is to making a finding on specific aspects or clauses of the law.

 

[Balta1701]

I completely disagree. It is far more intrusive, and outside the intended realm of SCOTUS, to knock down the whole law, then it is to making a finding on specific aspects or clauses of the law.

And I completely disagree as well, especially given such a clear mandate and statement of legislative intent.

 

But then again, I'm now expecting a 5-4 decision either declaring Medicaid unconstitutional or declaring that every change that happened to Medicaid since 1965 is unconstitutional, so whatever.

[southsider2k5]

I completely disagree. It is far more intrusive, and outside the intended realm of SCOTUS, to knock down the whole law, then it is to making a finding on specific aspects or clauses of the law.

 

The whole intent of the way the laws were written was to make them as difficult as possible to knock down. That is why it is so big and complex. That way if the Supreme Court rules that a part is unconstitutional, the Dems get to run around and scream about lifetime limits and the like.

[NorthSideSox72]

The whole intent of the way the laws were written was to make them as difficult as possible to knock down. That is why it is so big and complex. That way if the Supreme Court rules that a part is unconstitutional, the Dems get to run around and scream about lifetime limits and the like.

I think you are pushing the envelope a bit with the conspiracy thing, I don't think they made it big and complex for that reason. It was big and complex because it is f***ing Congress.

 

You are certainly right that the Dems will say that - that the GOP now "owns" health care, that they actively worked to reinstate lifetime limits and pre-existing condition requirements. And they will be right, sort of. Both parties COULD have come to a way of eliminating those, without the mandate, if they wanted to. Congress is just too much a clusterf*** to pull it off.

 

[StrangeSox]

Sort of. It certainly does make the law difficult to implement in some aspects. But that is for Congress to repair. It is for SCOTUS to find and determine problematic aspects of the law, not to remove dozens of related legislative items because in their subjective view it makes the law less effective.

 

FWIW parts of the law are sustainable, parts aren't. Ginsburg got into that during oral arguments.

[Balta1701]

FWIW parts of the law are sustainable, parts aren't. Ginsburg got into that during oral arguments.

Of course, viewed on their own certain parts are "sustainable". The "small tax increase on high income earners" that was included in the law would be sustainable on its own as Congress is allowed to raise taxes (at least until a 5-4 majority finds the 16th amendment unconstitutional), but if you struck the health care provisions, then this law becomes a tax increase, and that's simply not what Congress passed. The law was built to work in a certain way. If the Court re-interprets the constitution and comes up with this fundamentally new set of standards, then it is creating a law that was never wanted or intended to exist.

[StrangeSox]

No, other parts, like reformation of Indian health care policies or something like that.