Obamacare Day 2: Counting vegetable references and clues from Kennedy

If you need a flow chart to keep track of the Supreme Court’s deliberations about the Affordable Care Act, ProPublica has created one. You can start with the Anti-Injunction Act and go through the expansion of Medicaid to determine what decisions will result in an implementation of the law or an overturning of it.

The individual mandate was the topic of the day Tuesday at the Supreme Court. The general consensus was that the government’s lawyer could not come up with a satisfactory limiting principal to prove that allowing this law to stand wouldn’t lead to the government forcing citizens to buy everything from broccoli to big screen TVs.

Georgetown University law professor Randy Barnett has been perhaps the key legal thinker developing the case against the individual mandate. He pointed to two comments from Justice Kennedy that he thinks illustrate deep skepticism about the mandate.


Justice Kennedy began the argument by asking … can you create commerce in order to regulate it? That would seem to go beyond the text of the Commerce Clause itself. The second question he posed, and it was dramatic the way he put it, was he asked the solicitor general to assume this was unprecedented, and then said, doesn’t that mean you have a heavy burden of justification if you are changing the relationship of a citizen to the government in this way?

Regardless of the tough question about the legality of the mandate, there is some precedent. Avik Roy on Forbes describes precedents that support the individual mandate.

Everyone agreed that the two justices to watch are Chief Justice Roberts and Justice Kennedy. Philip Klein of the Washington Examiner thinks a close review of Roberts’ comments suggests he will vote against Obamacare.

Daniel Fisher on Forbes says a similar review of Justice Kennedy’s comments doesn’t offer as clear a picture of how he will vote  although many observers agree that Kennedy’s vote–more so than Roberts’–will be the deciding one.

Dalia Lithwick on Slate says that it may be worth counting up the references to forced gym memberships, cellphone purchases, and broccoli mandates, and tallying them up against references to actual court cases. “That’s either because the mandate is so unprecedented that precedent doesn’t matter. Or, because precedent just doesn’t matter,” she says.

You can find a transcript of the day’s proceedings here if you’d like to conduct your own analysis of the justices’ questions and vegetable references.

For a preview of today’s arguments, check out Lyle Denniston’s discussion of severability on SCOTUS Blog  and his  predictions on what the justices will think about the expansion of Medicaid.

JD Kleinke on The Health Care Blog says that Obamacare changes very little about healthcare in America and that the final decision won’t effect that.

To wit: access to commercial health insurance for most of us will still run through the workplace; our employers will still, for better or worse, be charged with money-managing the system they love to hate…Health insurers will continue to operate half their book of business on a state-by-state basis, and the other half nationwide for self-insured employers, thus maximizing complexity, confusion and administrative cost for everyone involved.

There will be no new public health care plan for hard-pressed households — just a huge expansion of the nation’s 50 broke and broken Medicaid plans … Those insurers will continue to design and sell their plans based on the crazy-quilt of local standards and state benefit mandates, along with a few new federal mandates for preventive services …

If this is starting to feel like less than the “government takeover of health care” … and more like the status quo with some belated, populist insurance market regulatory reforms, then maybe we should look at the actual numbers.

… in full flower, ObamaCare is an artfully diffused redistribution of health care funding costing barely 1/20th the size of the entire non-system it is supposedly taking over.

No comments