Thread: "Healthwreck": Obamacare May Go Down Entirely; Wrecking Operation or Salvage Job?

"Healthwreck": Obamacare May Go Down Entirely; Medicaid Funding in Question; Justice Scalia Joked Reading Entire Bill Would be "Cruel and Unusual Punishment"; Wrecking Operation or Salvage Job?

Wednesday, March 28, 2012 5:16 PM



Weak arguments presented by "team Obama" lawyers supporting Obama's healthcare legislation took a beating yesterday, and the beating continued even more so today.

Please consider Day 3: ObamaCare at the Supreme Court by the Illinois Policy Institute.

Today was the final marathon session of oral arguments over ObamaCare. It began this morning with the question of what to do with the rest of the law if the individual mandate is struck down, a very real possibility after yesterday's hearing.

On this issue, both sides agree that if the mandate falls, at least some of the other provisions must fall with it. Most of the Justices seemed skeptical that the entire law should be thrown out, but where to draw the line was a question the Court was clearly struggling with.

Some of the justices hinted that the difficulty in drawing that line could mean disaster for the whole law. Others noted that the Court has never struck down the heart of a statute but left an empty shell. At one point, Justice Kennedy expressed his concern that it might be worse to pick and choose which parts to strike down than to just overturn the whole law. Justice Scalia joked that forcing the Court to go through the law's thousands of pages and provisions one by one would be cruel and unusual punishment.

The day ended with the question of whether the President can force states to expand their Medicaid programs to millions of new enrollees. As I explained earlier this week, Medicaid expansions have already failed the most vulnerable populations in Illinois, and ObamaCare is only going to make the problem worse.

The four liberal justices appeared highly critical of the state's argument that conditioning pre-existing Medicaid funding on new expansions is too coercive. The conservative justices also expressed some skepticism that the forced expansion was unconstitutional, though they did press the administration to define the outer limits of that power.

Justices Ask if Health Law Is Viable Without Mandate

The New York Times reports Justices Ask if Health Law Is Viable Without Mandate.

On the third and final day of Supreme Court arguments over President Obama’s health care overhaul law, several justices on Wednesday indicated a reluctance to pick and choose among the law's other provisions should the requirement that most Americans have health insurance be struck down.

The questions from the justices indicated that at least some of them were considering either striking down just the requirement, often called the individual mandate, or the entire law.

Paul D. Clement, representing 26 states challenging the law, urged the court to overturn the entire law. Edwin S. Kneedler, a deputy solicitor general, took a middle ground, suggesting that the court remove the mandate and only a couple of other provisions.

The court separated the day’s arguments into two sessions. After the morning session, which focused on the effect of overturning the mandate, the afternoon's hearing dealt with the law’s expansion of Medicaid, part of its attempt to reduce the number of Americans without health insurance.

In the second argument, the court’s more conservative justices expressed concern that the law’s Medicaid expansion was unduly coercive to states.

“My approach would be to say that if you take the heart out of this statute,” Justice Antonin Scalia said, “the statute’s gone.”

Justice Scalia, who suggested that the whole law would have to go, appeared to go further than some of the other justices, but many of them expressed skepticism that the rest of the law could remain intact if the court ruled the mandate to be unconstitutional.

Justice Ruth Bader Ginsburg called the court’s task, should the key provision fall, a choice between “a wrecking operation” and “a salvage job.”

Wrecking Operation or Salvage Job?

There is nothing of merit to salvage in Obamacare. Even if there was, the Supreme Court should not have to read through thousands of pages to find it.

The only things to "salvage" if key provisions are struck down, are Obama's inflated ego and his ability to say he passed healthcare legislation.

Memo to Nancy Pelosi

Hello Nancy: It seems the Supreme Court does not want to read the bill to find out what's in it.

Sorry Team Obama, your bill was more like "Healthwreck" than "Healthcare".

By the way, I have to ask: If the Supreme court strikes Obamacare, does it strike any provisions of Romneycare that passed in Massachusetts?

Mike "Mish" Shedlock
Mish's Global Economic Trend Analysis

Mish's Global Economic Trend Analysis: "Healthwreck": Obamacare May Go Down Entirely; Medicaid Funding in Question; Justice Scalia Joked Reading Entire Bill Would be "Cruel and Unusual Punishment"; Wrecking Operation or Salvage Job?

Train Wreck for Obama's Healthcare Mandate; What Obama's Lawyers Couldn't Answer; Obamacare Going Down the Tubes?

Wednesday, March 28, 2012 1:47 AM



Tuesday was a rough day for the Obama administration in oral arguments in the Supreme Court over mandated insurance.

The Illinois Policy Institute comments on What Obama's Lawyers Couldn't Answer.

If the government can force you to buy health insurance, what can't they force you to do or buy?

That was the question posed by a number of Supreme Court justices throughout today's oral argument on the constitutionality of ObamaCare. And that was the question President Obama's lawyers couldn't seem to answer.

That question didn't seem to bother the four liberal justices, who appeared ready to uphold the law. At one point, Justice Breyer suggested that the government could force you to buy things such as cellphones and burial insurance. The remaining justices, however, appeared highly skeptical of the government's argument. Justice Kennedy and Chief Justice Roberts, largely believed to be the "swing votes" in this case, pressed the administration's lawyer hard for any kind of limit to the President's theory.

Chief Justice Roberts harshly noted that the type of insurance ObamaCare forces people to buy was completely different from the type of health care these people actually use. Justice Kennedy countered the administration's argument by saying that the government will say that every market is "unique."

The fact that the Obama administration didn't have a good answer for these questions could spell doom for the President's signature legislation. That doesn't mean the law will ultimately be struck down. After all, the government needs to convince only one of the conservative justices. But today's hearing illustrated just how uncomfortable they are with a law that, as Justice Kennedy proclaimed, "changes the relationship of the federal government to the individual in a very fundamental way."

Train Wreck for Obama

The Hill reports Rough day for Obama health law: Kennedy among mandate skeptics

The Obama administration’s health insurance mandate faced severe skepticism Tuesday from conservatives on the Supreme Court during a pivotal morning of oral arguments on the landmark legislation.

Justice Anthony Kennedy, the court’s most consistent swing vote, repeatedly voiced doubts about the mandate’s constitutionality, suggesting he could side with the court’s four staunch conservatives to overturn President Obama’s healthcare law.

“That changes the relationship of the federal government to the individual in a very fundamental way,” Kennedy said.

Jeffrey Toobin, a lawyer and legal analyst who writes about legal topics for The New Yorker called Tuesday a “train wreck for the Obama administration.”

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong,” Toobin said Tuesday on CNN. “I think this law is in grave, grave trouble.”

Supporters of the law had seen Chief Justice John Roberts and Justice Antonin Scalia as possible supporters of the mandate in addition to Kennedy, but the two offered aggressive questions during the two hours of arguments.The debate hinged largely on whether the mandate requires people to enter the market for health insurance or regulates the market for healthcare. Verrilli argued that everyone either uses healthcare or is at risk of unexpectedly ending up in the market for healthcare services. The mandate simply ensures that those services are paid for, he said.

Scalia wasn’t buying it.

“I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance,” Scalia said. “It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it.”

Following an exchange between Verrilli and Scalia, Justice Sonia Sotomayor spent a full two minutes outlining the three main elements of the Justice Department’s position, then she asked Verrilli, “Which of these three is your argument? Are all of them your argument?”

Roberts pressed Verrilli to explain where Congress’s power to issue new mandates would stop. The lack of a “limiting principle” has dogged the Justice Department’s case throughout the process, prompting one lower-court judge to question whether Congress could also require citizens to buy broccoli, because a healthy diet would cut down on healthcare costs.

The Supreme Court justices revived the broccoli analogy and ran through several more, asking whether the government could mandate the purchase of cellphones, gym memberships, cars, prescription drugs or burial insurance.

Conservative judges in lower courts have upheld the mandate on the grounds that healthcare is unique, due to the risk of accidents and the nature of its cost-shifting. Although other goods also get more expensive when people don’t buy them, there are few parallels to the requirement to treat uninsured patients.

The mandate is also considered essential to effectively implementing other parts of the healthcare law. Provisions requiring insurance companies to cover sick people, and prohibiting them from charging those patients higher prices, could dramatically raise the price of insurance if not counterbalanced with the mandate.

“That seems to me a self-created problem” that could be solved by not imposing those regulations, Scalia said.

Senator Lee Says 5-4 Ruling Against Individual Mandate

Senator Mike Lee, Republican, Utah Expects 5-4 Ruling Against Individual Mandate

Sen. Mike Lee (R-Utah) predicted Tuesday that the Supreme Court will rule against President Obama's signature healthcare legislation and declare the individual mandate unconstitutional.

"Based upon the questions from the bench, I am predicting that there's likely to be a 5-4 ruling in this case. I tend to think it's a 5-4 ruling holding that the individual mandate is unconstitutional," said Lee on Fox Business Tuesday.

Lee said that he sensed Kennedy, who is considered the traditional swing vote on the court, appeared "very skeptical" about the Justice Department's argument in defense of the mandate.

Lee, who clerked for Supreme Court Justice ‪Samuel Alito ‬on the U.S. Court of Appeals for the Third Circuit Court, also noted that today's hearing was uncharacteristically "lively."

Interview With Senator Lee



Link if video does not play: Senator Lee on Healthcare

The Illinois Policy Institute asks the correct question "If the government can force you to buy health insurance, what can't they force you to do or buy?"

Regardless of whether or not one thinks we need national healthcare, legislation ought to pass strict constitutional muster. Obamacare doesn't, and thus deserves to be flushed down the toilet. Congress can try again.

Mike "Mish" Shedlock
Mish's Global Economic Trend Analysis

http://globaleconomicanalysis.blogsp...ealthcare.html