Human Resources News & Insights

Fate of health law (possibly election) now in Supreme Court’s hands

The healthcare reform hearings before the Supreme Court have concluded. And while it’s hard to predict which side of the fence the high court will land on, here’s what we do know.

  • The court didn’t seem to want to wait. The justices’ questions suggested that they were receptive to not letting the Anti-Injunction Act stand in the way of them making a ruling this year — which would make both supporters and opponents of the law happy. The act says that consumers can’t challenge a law until they have to pay for it. In other words, the court can’t rule on the law until after its penalties for not having health insurance kick in (which is slated for 2014). But one justice noted the court can waive its right to delay cases under the act.
  • The individual mandate — and the law as a whole — do appear to be in real danger. Prior to the hearings, it seemed unthinkable to some that the high court would actually rule that the individual mandate is unconstitutional. But the threat become very real as the justices pressed the federal government hard on multiple fronts. One justice even went so far as to say the feds faced a “heavy burden” in defending the constitutionality of the mandate. Another suggested that if the court cut “the guts” of the law, it would die. A third justice also implied that if one or more provisions were struck down, the burden should fall on Congress to fix the law, not the court.
  • If the mandate falls, it’s likely at least two other provisions fall with it. While the the Obama administration claims the majority of the healthcare law can stand on its own, it has already admitted that two provisions would need to get the axe of the individual mandate was deemed unconstitutional. They are: A) the requirement that insurance companies accept any individuals regardless of their health status (pre-existing conditions), and B) The rule prohibiting insurers from charging individuals higher premiums based on their medical history.
  • A ruling’s expected in June. All indications are the Supreme Court will rule on the law sometime in June. And the ruling could have a significant impact on the elections. Being President Obama’s signature piece of legislation, a ruling to strike it down could put him in a tight spot with voters.

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  • Common Sense

    My only question is why “Prior to the hearings, it seemed unthinkable to some that the high court would actually rule that the individual mandate is unconstitutional.”?

    Who are these people who found it unthinkable? It should not matter whether you are for or against the law, surely both sides can agree that the individual mandate represents a never before seen expansion of the authority and intrusion of the U.S. federal government into commerce and individuals personal lives. (Does anyone even debate this point?) Over half of the state’s attorneys general fought the law as unconstitutional. Even many of the laws proponents agree that it is stretching the constitutional “enumerated powers of the federal government and the “commerce clause” well beyond the framers original intent. Yet it was “unthinkable” for some.

    Did these “unthinkable” people just think that the opposition was just going to roll over and watch while a partisan congress ramrodded a partisan law down our collective throats? Did they expect that people would not fight back when they had lost some of their freedoms?

    I find it odd that some thought this possible scenario was “unthinkable”. It strikes me as a “head in the sand” mentality. I find it troubling that the administration does not even have a “plan B” for what to do if the law is struck down.

  • Say It Loud

    “The Opposition” to the Health Care Reform Act are nuts. Unfortunately, they will get this victory handed to them by a very biased Supreme Court and the good ol’ days will be back for the 7 major health insurers….millions of people will be denied health care based on pre-existing conditions…that includes you, Common Sense. Eventually, you or someone close to you will get sick and have to go to ER, pile up a bunch of hospital bills, can’t afford to pay for them, file bankruptcy and then pass the costs onto people who do have insurance. Their rates will RISE! Anytime you have a Teabagger such as Ginny Thomas, married to a Supreme Court Justice openly lobbying for the repeal of this Act and not have to recuse himself from deliberations, is a travesty of so-called justice. Common Sense, where did you get your common sense?

  • Common Sense

    @Say it Loud. Try saying it accurately as well. Please don’t try the tactic of demonizing your opponents as “Teabaggers” or “nuts”. It says more about you than it does about conservatives. Please also don’t falsely characterize my opposition to Obamacare as striving to return to the “good ol” days”. Just because I (like most Americans) oppose this unconstitutional law does not mean I don’t want to proceed with other solutions. I have in fact actively promoted several different alternative ideas.

    Yes, judges are sometimes admittedly biased. I hope all U.S. Judges are biased toward giving deference to the framers and the constitution’s original intent.

    To assert that their is a “travesty of justice” because Judge Thomas declined to recuse himself because his wife lobbied for repeal of Obamacare and conveniently fail to mention the even more egregious example that Judge Kagan was Obama’s solicitor general (And as Solicitor General she filed an amicus espousing Obamacare) is at best intellectually dishonest. Thank you for allowing me to show you my common sense.

  • Interested

    I found your question interesting Common Sense so I did a bit of research. It seems that the reason some thought it unthinkable is due to case law from the court in the not so distant past. The case had to do with Medical Marijuana laws in California at the time, and if congress could use the interstate commerce act to regulate the possession of Marijuana by individuals who legally used it in the state of California. Scalia believed that the legal user could not be differentiated from the illegal market because it could turn at any instance from a legal possession to an illegal possession in an instant depending on who had possession of it.

    quoting Scalia’s, “Congress ‘may regulate even non-economic local activity if that regulation is necessary part of a more general regulation of interstate commerce.’” end Quote

    Therefore we are all potentially never more than an instant from the ‘point of consumption’ of health care. Yet it is impossible to predict which of us will need it during any period of time. Meaning congress may regulate it and make laws that create penalties for not following the law when it is necessary part of the more general regulation of interstate commerce. It seems that if you decide you don’t want to get insurance for your medical needs for what ever reason, you could get deathly ill in whatever state and any time. You would be treatment at an emergency care center and not be able to pay for it. Therefore the rest of the individuals that do pay their insurance bills would pay for your care though their insurance rates going up.

    Thanks for bringing up an interesting point but I don’t think it is as clear cut as you seem to believe it is.

  • jazzyone

    I just want to point out to “Common Sense” that s/he has no idea what most Americans want. The only way to know that would be to communicate to every person in the country; something pollsters cannot do. I’d appreciate it if you just stated your comments as solely your own opinion.

  • Common Sense

    @Interested. I asked why some thought overturning Obamacare was “unthinkable” You pointed out that Scalia made a ruling in an earlier court case that may seem to indicate he will vote to uphold Obamacare.

    The Raich case (that you refer to) did not raise the fundamental question posed by the individual mandate: Does the Commerce Clause give the federal government the right to forbid citizens not to buy something — that is, to regulate inactivity — so long as that inactivity substantially affects interstate commerce, or is a crucial part of a broader scheme of legitimate regulations? — Robert VerBruggen

    Perhaps in the end Scalia will vote for Obamacare. I still hardly see why that would make it pre-ordained conclusion that overturning Obamacare was “unthinkable”

    I will concede that it does seem fairly obvious that at least four of liberally minded members of the bench are already in the bag for Obamacare, did the ones who deemed it unthinkable just assume they would be able to peel a Kennedy, Roberts, or Scalia away from the constitution’s original intent?

    On a side note, I do have one other question I have never heard answered. You like many, have argued “It seems that if you decide you don’t want to get insurance for your medical needs for what ever reason, you could get deathly ill in whatever state and any time. You would be treatment [sic] at an emergency care center and not be able to pay for it. Therefore the rest of the individuals that do pay their insurance bills would pay for your care though their insurance rates going up.” You have argued this point as a way justify the mandate. However, the premise of this argument is not necessarily true. What if a millionaire (evil rich person) elects not to purchase insurance because he feels he can pay for the emergency treatment himself? Will he be forced to purchase insurance also?

    If one looks at the founding father’s original intent and the enumerated powers I do believe it is “clear cut”. However, I never meant to indicate that outcome was “clear cut”. Some justices don’t believe in following the original intent. I see it as a 50/50 proposition. (scary).

    In the end, the Court will not simply be judging if Obamacare is constitutional. They will be deciding whether or not the U.S. Constitution is still relevant or if it is in fact just an outdated relic of America’s past.

  • Common Sense

    @Jazzyone How about a little less jazz and a little more substance and “common sense”.

    Actually I do have a real good idea of what most people want. That is the exact purpose of the polls. Of course the pollsters do not ” communicate to every person in the country” nor do they need to. Please take a statistics class at the local community college or borrow an 8th graders math book and study the sections on “scientific polls”, “margin of error” and “sampling”.

    When I state that most Americans oppose this law, it is not my opinion, it is a fact drawn from scientific polls.

    I understand that many here don’t agree with my views on liberty and defending the constitution, but let’s do away with these types of petty inane arguments and name calling and strive for more intelligent discourse like “Interested” has given.

  • Interested

    Common Sense says;Does the Commerce Clause give the federal government the right to forbid citizens not to buy something — that is, to regulate inactivity — so long as that inactivity substantially affects interstate commerce, or is a crucial part of a broader scheme of legitimate regulations? — Robert VerBruggen

    Response; This was an excellent way of pointing out the apposing few on the the powers that congress does or doesn’t have. I believe this ship has sailed though, in that we are currently forced to pay for Social Security and Medicare. Congress did regulate that we all must put away funds for the old in our population. Inactivity is not an option, you must purchase this retirement insurance.

    Common Sense says;I will concede that it does seem fairly obvious that at least four of liberally minded members of the bench are already in the bag for Obamacare, did the ones who deemed it unthinkable just assume they would be able to peel a Kennedy, Roberts, or Scalia away from the constitution’s original intent?

    Response;I think you are spot on with this one. Many think that the court is nothing more than a political body swaying with the whims of the left and right. I hope this isn’t true, but I believe that those that thought it unthinkable, believe that it will be a 5-4 vote and that maybe one of the mentioned justices will see our living constitution in a different light than the body politic of the parties they represent.

    Common Sense says; What if a millionaire (evil rich person) elects not to purchase insurance because he feels he can pay for the emergency treatment himself? Will he be forced to purchase insurance also?

    Response; If only there were a way to structure health reform where self insurance could be an option, I would agree with it. Unfortunately the problem isn’t the wealthy among us that are not paying their bills it is the millions of folks who may or may not have the financial ability to cover large medical bills and don’t. Do we want to end up in a country that just allows kids to die because their parents chose to use the money that should have gone to insuring their family on whatever else seemed more important at the time. Do we simply turn away someone at the emergency room because they are poor and tell them they must die. I don’t think that is reasonable, but you may be on to something with the ability to self insure so that when you show up at the emergency room and your bill for your care ends up being $500K you have that money available to pay your own bills without insurance. Frankly I think most wealthy people have no problem paying insurance as they see the value in it. Of course non of us likes paying for insurance until we need it.

    I hope that the members of the Supreme Court are better human beings than to simply be used as political hacks, no better than most that serve in our Congress. The court has faced many decision in the past that have been very controversial at the time, and somehow been able to continue on making decision based on the constitution. I don’t think this is the end of our Republic and our democratic principles, no matter which way they decide.

    Thank you for your thoughts on this case.

    Best

  • Common Sense

    Interested says; “…I believe this ship has sailed though, in that we are currently forced to pay for Social Security and Medicare. Congress did regulate that we all must put away funds for the old in our population. Inactivity is not an option, you must purchase this retirement insurance.”

    I believe you have unintentionally mis-characterized this argument. Social Security is a false analogy. Social Security is funded through taxation, Obamacare is funded by an individual mandate via fees and penalties, not taxes (Obama was very clear on this point). Michael Tanner explains it below.

    Several individual mandate defenders—including Justice Ginsburg—have likened it to Social Security, saying that if the government can make us participate in Social Security, why can’t it make us buy health insurance? But in the case of Helvering v. Davis, the Supreme Court ruled that Social Security was constitutional precisely because it was not insurance and did not require citizens to buy a product. Rather, the Court held that the Social Security tax was simply a tax, authorized by the Constitution’s taxing power. Social Security benefits are simply a government spending program, authorized under the General Welfare clause, and unrelated to the tax itself. As the Court pointed out, “The proceeds of both the employee and employer taxes are to be paid into the Treasury like any other internal revenue generally, and are not earmarked in any way.” One may disagree with the Court’s expansive interpretation of the General Welfare clause in this case, but it clearly distinguishes Social Security (and Medicare or even a single-payer health care system) from the individual mandate constitutionally. —Michael Tanner—

    Interested said; I hope that the members of the Supreme Court are better human beings than to simply be used as political hacks, no better than most that serve in our Congress. The court has faced many decision in the past that have been very controversial at the time, and somehow been able to continue on making decision based on the constitution. I don’t think this is the end of our Republic and our democratic principles, no matter which way they decide.

    I do believe that some of these judges (on both sides) are swayed by politics (Scalia in the aforementioned Raich case is a good example of where politics trumped the constitution) but, I really don’t see how any justice can be considered a political hack simply for voting to overturn this law which overly expands the Federal Governments enumerated powers and “that changes the relationship of the Federal Government to the individual in the very fundamental way.”–Anthony Kennedy–

  • Interested

    Point taken on the Social Security discussion Common Sense.

    I think we are saying the same thing about the justices, except you did it more eloquently than I . I believe that the constitution can be looked at by two different people and each may see what it says as different than the other. Honorable and Just men and women on the bench disagree every day about what the law says and means; sometimes coming down to what one word may or may not mean. It is possible for a judge to be so blinded by his or her own ideology that they can’t see or understand the other side of the issue; as with the old civil rights cases in the south where segregation was so strong that juries and judges routinely where blinded by their own ideologies. It is my hope that none of these current folks on the bench are like that today.

    For me I don’t think the law is the best we can do in this country to take care of the out of control heath care costs for us all. Some of the ideas in the law appeal to me like having your kids on your insurance till they are 26, and not being able to deny coverage for kids with preexisting illnesses. I personally don’t think the employer mandate portion of this law will work, it is simply much more affordable to not have coverage for your employees and pay the fine, than to pay for the coverage that is mandated. I do think that making everyone pay for some type of insurance is reasonable for the good of all, but I certainly understand yours and many others resistance to it. I don’t like the Government telling me what to do in many areas of my life.

    It has been a pleasure discussing this important topic with you Common Sense; Thank you for the time and effort you brought to the conversation.

    Best

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