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View Poll Results: How will the SCOTUS rule?
Strike the mandate, leave the penalties. 5 12.82%
Strike the mandate, dispute its existence. 11 28.21%
Punt 9 23.08%
Reject the Commerce Clause reasoning, but find that the mandate is a tax. 8 20.51%
Other (Explain in thread) 6 15.38%
Voters: 39. You may not vote on this poll

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Old 06-27-2012, 03:23 PM   #1
ElMonoDelMar
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Default Healthcare Law Prediction Thread UPDATE: ACA UPHELD

SCOTUS is set to issue their ruling on the Affordable Care Act tomorrow. I figured we should get a prediction thread going to give us something to argue about until the decision is released.

According to a Washington Post blog, there are a few ways this could unfold.

1) Strike the mandate, leave the penalties. Joey Fishkin of the University of Texas thinks that the Supreme Court could call the mandate unconstitutional while leaving the law functionally unchanged.

2) Strike the mandate, dispute its existence. Walter Dellinger, a former solicitor general in the Clinton White House, suggests that Roberts could say that it would be unconstitutional to force Americans to buy health insurance. Point, conservatives! But the court could also hold that the Affordable Care Act isnít actually forcing anyone to buy health insurance.

3) Punt. This was the solution favored by Judge Brett Kavanaugh, a conservative star on the D.C. Circuit Court of Appeals. He argued that the Anti-Injunction Act specifically barred the court from considering the mandate until the federal government actually begins enforcing it.

4) Reject the Commerce Clause reasoning, but find that the mandate is a tax. A related option for the Supreme Court would be to say that the federal government does not have the power under the Commerce Clause to impose an individual mandate. But it does have broad power under the Constitution to levy taxes. So, writes David Savage in the L.A. Times, the court could find that the mandate is a tax.

http://www.washingtonpost.com/blogs/...n-health-care/

EDIT: According to CNN ACA has been upheld in its entirety.

http://news.blogs.cnn.com/2012/06/28...law/?hpt=hp_t1

Last edited by ElMonoDelMar; 06-29-2012 at 10:27 PM.
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Old 06-27-2012, 03:38 PM   #2
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Other: I have no earthly clue what they're going to do.
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Old 06-27-2012, 03:41 PM   #3
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I think they'll punt so neither political party can claim it as an election-year victory.
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Old 06-27-2012, 03:44 PM   #4
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I don't think they dare be seen as that activist a court.
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Old 06-27-2012, 03:47 PM   #5
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I'm going to go out on a limb and predict their decision will be...controversial.

Beyond that, who knows?
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Old 06-27-2012, 03:50 PM   #6
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I think that Rush and Mark Levine will grab their pitchforks and torches to storm the castle...
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Old 06-27-2012, 03:50 PM   #7
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Most likely they'll craft some sort of ruling that nobody will be happy with. Those options presented in the blog are contorted drivel though, there are logical problems with each of them.
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Old 06-27-2012, 03:58 PM   #8
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Quote:
Originally Posted by PokerGuy View Post
Most likely they'll craft some sort of ruling that nobody will be happy with. Those options presented in the blog are contorted drivel though, there are logical problems with each of them.
I think that if they punt that will successfully piss everyone off.
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Old 06-27-2012, 04:50 PM   #9
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Originally Posted by Atreus21 View Post
Other: I have no earthly clue what they're going to do.
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Old 06-27-2012, 05:03 PM   #10
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I think that the mandate is likely toast, but that the rest will stand. Then again, it is foolish to underestimate conservative activism within SCOTUS.
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Old 06-27-2012, 05:05 PM   #11
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Not a prediction, but a prayer: gimmie 6-3 or better against the mandate, law is stricken because they attached no severability. I don't have any faith that it'll happen, but that's the best case scenario.
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Old 06-27-2012, 05:09 PM   #12
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Quote:
Originally Posted by ElMonoDelMar View Post
SCOTUS is set to issue their ruling on the Affordable Care Act tomorrow. I figured we should get a prediction thread going to give us something to argue about until the decision is released.

According to a Washington Post blog, there are a few ways this could unfold.
Quote:
1) Strike the mandate, leave the penalties. Joey Fishkin of the University of Texas thinks that the Supreme Court could call the mandate unconstitutional while leaving the law functionally unchanged.
I don't understand what this means. Seems to me if you strike the mandate you are automatically striking the penalty. How can I be penalized for not doing something if there is no mandate compelling me to do it?

Quote:
2) Strike the mandate, dispute its existence. Walter Dellinger, a former solicitor general in the Clinton White House, suggests that Roberts could say that it would be unconstitutional to force Americans to buy health insurance. Point, conservatives! But the court could also hold that the Affordable Care Act isn’t actually forcing anyone to buy health insurance.
Doesn't seem at all logical to me. If you don't have the (Constitutional) power to force me to do something, how can you penalize me for not doing it? If you're penalizing me for not doing something, how is that not forcing me to do it?

Quote:
3) Punt. This was the solution favored by Judge Brett Kavanaugh, a conservative star on the D.C. Circuit Court of Appeals. He argued that the Anti-Injunction Act specifically barred the court from considering the mandate until the federal government actually begins enforcing it.
Highly unlikely IMO. I think they would have rejected hearing the case and waited until the anti-injunction act's conditions were met.

If this turns out to be only a ruling on the application of the anti-injunction act's applicability it will be the hugest legal prick tease of all time.

Quote:
4) Reject the Commerce Clause reasoning, but find that the mandate is a tax. A related option for the Supreme Court would be to say that the federal government does not have the power under the Commerce Clause to impose an individual mandate. But it does have broad power under the Constitution to levy taxes. So, writes David Savage in the L.A. Times, the court could find that the mandate is a tax.
Another "No" IMO. If the penalty is a tax it would be a direct tax. If they rule it a direct tax the Constitution says it must be apportioned. That's all but impossible to comply with so it effectively kills it.

I think they may kill the mandate. And I think conservatives will mistakenly believe this kills Obamacare. And I think liberals needlessly fear the same thing. If anybody will listen to Howard Dean he's quite happy to clearly explain
why the mandate is completely unnecessary. This plan is said to be similar to MA's and they don't have a mandate. The only problem I see is the relatively few tweaks that might be necessary. OTOH, I wouldn't be surprised at all if Obama tried an Exec order, or something similar, to remedy that.

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Last edited by Fern; 06-28-2012 at 03:21 PM.
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Old 06-27-2012, 05:22 PM   #13
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Quote:
Originally Posted by Fern View Post
I think they may kill the mandate. And I think conservatives will mistakenly believe this kills Obamacare. And I think liberals needlessly fear the same thing. If anybody will listen to Howard Dean he's quite happy to clearly explain
why the mandate is completely unnecessary. This plan is said to be similar to MA's and they don't have a mandate. The only problem I see is the relatively few tweaks that might be necessary. OTOH, I wouldn't be surprised at all if Obama tried an Exec order, or something similar, to remedy that.

Fern
The lack of a mandate doesn't "kill" the ACA but it will make what's left so unappealing that something will have to be done. Some of the market reforms like age 26 can easily live on without the mandate. Some market reforms like age/smoker ratemaking can live on without the mandate, maybe with a few small tweaks. Some market reforms like guaranteed issue/guaranteed renewability and 300% premium band spreads need the mandate to survive.

If the ACA survives intact the market reforms will cause health premiums to go up. If the ACA survives sans mandate the market reforms will cause health premiums either skyrocket to such a degree that everyone is on Medicare, an Exchange, or without coverage or health insurers will voluntarily dissolve or go insolvent.

The mandate was the bone thrown to health insurers to get them to buy in to the market reforms, but the mandate doesn't make the market reforms profitable it makes them survivable.

While I, personally, feel that the mandate is at best immoral and at worst Unconstitutional I do recognize that the consensus likely outcome of ACA standing without the mandate will be a disaster.
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Old 06-27-2012, 05:30 PM   #14
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Quote:
Originally Posted by sactoking View Post
-snip- Some market reforms like guaranteed issue/guaranteed renewability and 300% premium band spreads need the mandate to survive.
This is precisely where Howard Dean disagrees with you.

And MA's premium band spread is far less than 300%

Edit: Let me go ahead now and admit I cannot any longer recall with any detail as to how MA law overcomes those problems with their lack of a mandate. I think I enumerated that some time ago in a similar thread, but can no longer recall those details. I would expect if the mandate is stricken we'll much more of Howard Dean on TV explaining how it wasn't necessary, or even desirable, in the first place.

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Last edited by Fern; 06-27-2012 at 05:36 PM.
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Old 06-27-2012, 05:54 PM   #15
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I think it's 50/50 right now, which is astonishing in and of itself. SCOTUS would have to essentially toss out a dozen precedent-establishing cases from the previous 150 years or so to declare this unconstitutional on the grounds of the commerce clause.

but I wouldn't be surprised if they do--One thing Roberts has certainly shown, is that his confirmation testimony in which he declared he 'takes precedent quite seriously,' was outright BS.

What happened with Citizens United--not just the ruling, but the way he convinced his collegues to turn the plaintiff's case into something far beyond what the plaintiff requested--is outright appalling.
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Old 06-27-2012, 05:55 PM   #16
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Quote:
Originally Posted by yllus View Post
I don't think they dare be seen as that activist a court.
They already have.
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Old 06-27-2012, 06:15 PM   #17
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The whole thing will stand
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Old 06-27-2012, 06:26 PM   #18
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Originally Posted by Slew Foot View Post
The whole thing will stand
I'm greatly in favor of Kennedy turning toward Ginsberg, but I don't know and can't predict. It really seems like hair-splitting.

The health-insurance industry would not be what it is today without government midwifery. And since uninsured obtaining services from hospitals and clinics is a free-rider problem, I can't see why it should be "unconstitutional" to make people pay for health insurance if they can afford it, or pay a penalty on their Form 1040. The progressives have used the analogy of DMV requiring auto insurance or paying something directly. Health insurance is not like broccoli. One is simply a vegetable commodity; the other is a hedge against risk which carries a free-rider problem and other aspects of collective or public goods.

Frankly, I think the case brought to the Supremes was stupid. But then, so may be some of the Supremes.
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Old 06-27-2012, 06:33 PM   #19
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Originally Posted by Fern View Post
This is precisely where Howard Dean disagrees with you.

And MA's premium band spread is far less than 300%

Edit: Let me go ahead now and admit I cannot any longer recall with any detail as to how MA law overcomes those problems with their lack of a mandate. I think I enumerated that some time ago in a similar thread, but can no longer recall those details. I would expect if the mandate is stricken we'll much more of Howard Dean on TV explaining how it wasn't necessary, or even desirable, in the first place.

Fern
Well, no offense to Howard Dean, but he really doesn't know jack about insurance.

All I can say is that everyone I have spoken to at various state insurance departments, in the industry, and at the NAIC all agree that the mandate is absolutely essential to those market reforms.

MA didn't overcome those problems without a mandate; Chapter 58 Sec 12 of the bill as enacted stipulates that all MA residents must have insurance.

For the life of me I cannot find if MA has premium band caps and what they are. Since the ACA is modeled after MA I have to believe they're there but if they are they're hidden which is odd since MA would likely be touting them as a "valuable consumer protection".
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Old 06-27-2012, 06:36 PM   #20
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Quote:
Originally Posted by Slew Foot View Post
The whole thing will stand
I agree.

I think there has been a shift in the media from 'wow, that was more hostile than we expected' after oral arguments to 'we expect this to be overturned.' I think there is way too much expectation from people that the court is going to get rid of the mandate, when really we have no way of knowing.

Given that, I rely on previous expectations that the court will probably find it constitutional.
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Old 06-27-2012, 06:37 PM   #21
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Quote:
Originally Posted by BonzaiDuck View Post
I'm greatly in favor of Kennedy turning toward Ginsberg, but I don't know and can't predict. It really seems like hair-splitting.

The health-insurance industry would not be what it is today without government midwifery. And since uninsured obtaining services from hospitals and clinics is a free-rider problem, I can't see why it should be "unconstitutional" to make people pay for health insurance if they can afford it, or pay a penalty on their Form 1040. The progressives have used the analogy of DMV requiring auto insurance or paying something directly. Health insurance is not like broccoli. One is simply a vegetable commodity; the other is a hedge against risk which carries a free-rider problem and other aspects of collective or public goods.

Frankly, I think the case brought to the Supremes was stupid. But then, so may be some of the Supremes.
Hopefully they'll reign in the ridiculously broad interpretation of the Commerce Clause.
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Old 06-27-2012, 06:39 PM   #22
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Some morbid part of me hopes the whole thing stands so I can drop my insurance and decide if I want to pay the penalty (which is less than the cost of insurance, by a lot) or, since I own a business and underwithhold on my taxes, just tell the .gov to pound sand since they can't enforce the mandate anyway.
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Old 06-27-2012, 07:05 PM   #23
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I predict the Supreme Court will make a decision and half the people in this forum will go bat-shit crazy over the decision.
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Old 06-27-2012, 07:49 PM   #24
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The mandate is toast, at the very least.
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Old 06-27-2012, 07:58 PM   #25
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Quote:
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The whole thing will stand
Only if the court is derelict in it's duty. There is no way anyone can spin the mandate to be constitutional. It is not a tax, it was not structured as a tax, if it was we would not be in court. If it is held as constitutional then there is absolutely NOTHING the government cannot force you do to if they so choose. I cannot see Kennedy letting the mandate stand considering he actually takes his job seriously. The loons like Ginsberg care more about their agenda than the constitution so we know this will come down to Kennedy.
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