Obamacare

Why Judge Vinson's Ruling Matters

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When Judge Roger Vinson ruled that because the health care overhaul's individual mandate was unconstitutional yesterday, critics of the law—myself includedcheered. But did it really change the overarching legal situation?

In some technical sense, no. So when Kevin Drum, for example, argues that while the ruling is bad for the law's supporters, it "doesn't really do much to change the state of play," he's not exactly wrong. The path forward is still essentially the same today as it was last week: The constitutionality of the individual mandate will still be decided by the Supreme Court, whether by the swing-voting Anthony Kennedy, or perhaps, as Damon Root writes, by another justice.

Yet the ruling is nonetheless likely to have a subtle, but potentially significant, effect on the decisions to come. As Ezra Klein writes, Vinson's ruling, which voided the entire law, was more "sweeping than previous rulings, [and] opened up the right side of the debate." Judge Hudson's previous ruling in Virginia that the mandate was unconstitutional declined to strike the rest of the law. Judge Vinson's ruling helps legitimize the idea that if the mandate is unconstitutional, the rest of the law should be struck down with it.

I asked Ilya Shapiro, a legal scholar at the Cato Institute, if he thought the ruling helped firm up the case against the mandate, and he came to much the same conclusion. "No higher-ups are bound," he wrote back over email. "But they are influenced. Judges, like anyone else, don't want to reinvent the wheel where they don't have to." The influence may be hard to quantify, he says, but it's real: "It would be laughable to think that the outcome before the Court would be the same regardless of how the decisions on the merits before several thoughtful district judges went."

Ultimately, higher courts may choose not to directly cite or rely on Judge Vinson's ruling, but, Shapiro says, "don't for a second think they ain't payin' attention."

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  1. Bbecause anything that confirms cherished libertarian belief matters?

    1. fuck off, Max

    2. Shut up Plankton!

      1. Castro has a nice government run paradise in the Caribbean, have you ever though of living there? I bet the internet access is awesome!

        1. You sure you’re in the right comment thread?

          1. Yeah my bad. That was for Max, not you.

            1. Well then…have a lovely rest of the day!

    3. Re: Max,

      Max, H&R’s pet yorkie.

      Here, Max! Here, boy! Go fetch! That’s a good boy! Good boy, Max!

      Nooo, no, no! Don’t do your banalities on the carpet, I just had it steamed! Bad Max! Bad, bad Max!

  2. Given that enacting severability would beg the question of how the rest of the structure survives lacking the individual mandate (which yes, they could sidestep), and smacks of creative activism (by ‘rewriting’ the law – the activity they claim to shun), that alone tends to indicate they’re likely to shitcan the whole steaming pile of crap. But then, that makes too much sense.

    OT – it’s a fucked up state of affairs when the likes of Kevin Drum and Ezra Klein are considered as important voices on just about any topic other than wether or not a 64 crayon box of crayons actually contains 64 crayons or not.

    1. And yet here we are reading what you write!

      Again, in terms of how the healthcare industry shapes up and why–public opinion matters.

  3. “It would be laughable to think that the outcome before the Court would be the same regardless of how the decisions on the merits before several thoughtful district judges went.”

    It would be silly to think that losing this case would have the same effect as winning it did, and even beyond that, I think there are effects in the court of public opinion.

    Rulings make people talk. …and it’s harder for ObamaCare’s troglodyte supporters to pretend there’s no case against the individual mandate when judges keep piling on with the opinion that there is.

    1. “Rulings make people talk. …and it’s harder for ObamaCare’s troglodyte supporters to pretend there’s no case against the individual mandate when judges keep piling on with the opinion that there is.”

      In an email exchange with a lawyer at a lib foundation, he made the point that it moved the discussion of constitutionality from the fringe to the center.
      Those who formerly blew off the question are now required to provide answers. To, for instance:

      “If it has the power to compel
      an otherwise passive individual into a commercial transaction with a third party
      merely by asserting — as was done in the Act — that compelling the actual
      transaction is itself “commercial and economic in nature, and substantially affects
      interstate commerce” …. it is not hyperbolizing to suggest that
      Congress could do almost anything it wanted.”

      1. Exactly!

        …and how anxious are the Democrats to run in 2012 on letting legislation go into effect–that’s not only unpopular, but that public opinion holds is probably unconstitutional too?

        We’re looking at another inflection point in public opinion. Elections typically tilt one way or the other because of just two or three issues at most, and this is gonna be a big one…

        In the Senate, there are 21 Democrat seats, 10 Republican and 2 Independent seats up for grabs in 2012. I don’t know how many of those 21 Democrats are in safe districts, but if I were them? I wouldn’t want to go to the wall for a law that’s both unpopular and widely thought of as unconstitutional.

        I think this changes a lot of people’s math.

        1. If they could do election math, we wouldn’t have this monstrosity in the first place.

          1. Yeah, somehow they convinced those Democrats that everybody would warm to it once it passed…

            That was then; this is after the Tea Party.

            I think there’s an argument to make that maybe they won’t be burned twice.

  4. Right now, I believe the official position of the Obama administration is that they will defy the court’s ruling.

    The legal situation is that the law is void. No order staying this decision has yet been issued. Nonetheless, the administration has announced that they will ignore the court and continue to implement the law.

    You’d think that would be an impeachable offense, but technically I’m not sure that it is.

    1. People keep saying that the law does not really come into effect until 2014. But I don’t what they mean by that exactly. The law creates numerous agencies, which presumably will enact regulations. I thought I read of some of those already being enacted, I could be wrong. If that continues, perhaps Judge Vinson will change his mind about a dclaratory judgment being sufficient.

    2. Again, I’m using my HSA card without a doctor’s note and fuck Sebelius et al.

    3. High crimes and misdemenors is quite a “subjective” standard RC. While I am not calling for MPeach ATM (dear god Biden in the drivers seat) it is not beyond “reason” (it is noon somewhere) for the Rs to purport such scuttlebutt. I don’t think it would be a good tactic for them however.

      All your Healthcare are belong to us

    4. If the administration defies the court order, does this give the plaintifs some grounds to file an additional suit against the administration?

    5. The legal situation is that several judges have opined on the law’s constitutionality, and given different answers.

      So, until it hits SCOTUS, each judge considering challenges to the law brought before them has to consider the decision of the judge or judges above them in the food chain who have ruled on it in that jurisdiction.

      So, no, the legal situation is that the law is blatantly unconstitutional, everyone in Congress who voted for it violated their oath of office (again), but various judges have ruled different ways, and no one is sure how this will be decided by SCOTUS, which may or may not adhere more or less to the wording in the Constitution.

  5. “If it has the power to compel
    an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” …. it is not hyperbolizing to suggest that Congress could do almost anything it wanted.”

    In addition to the aspect of compulsion why are so few discussing the exemptions to those favored and privileged by this administration. Their chief evangelist Dr. Berwick doesn’t have to subject himself to it. Nor do the rest of the scumbags in the legislature.

    1. A government that can force you to buy health insurance is a government that can force you to buy gay male prostitutes*.

      *Unless you think that gay male prostitutes are icky and you have given a shit-load of money to Obama’s re-election campaign.

      1. Well you can have my gay male prostitute when you pry him from my cold dead fingers!

        1. where exactly are those cold dead fingers when I pry them?

          1. You’ll need to buy the video! Only $24.99.

            1. I’ve watched this disgusting video hundreds of times, and I can truthfully say that it has no redeeming artistic quality.

          2. Win.

      2. Is Ass Heaven a pseudonym for Aurora Snow or Leah Luv? If so, can I get your number?

    2. “In addition to the aspect of compulsion why are so few discussing the exemptions to those favored and privileged by this administration.”

      Pretty sure it’s an entirely different argument, and those currently arguing don’t want to dilute their message.
      But I agree; how in hell can you pass a law and then say, ‘well, it doesn’t apply to you, you and you’?

      1. how in hell can you pass a law and then say, ‘well, it doesn’t apply to you, you and you’?
        reply to this

        Like this:
        “This law will apply to all citizens unless the following conditions are met: (fill in conditions X, Y, Z).”

        c.f., mandatory draft registration, drinking age, etc…

      2. Just to amplify, it’s worse than that, because they’ve passed a law that says, this lady over here in the executive branch will decide who the law applies to. A protection racket, pure and simple.

      3. But I agree; how in hell can you pass a law and then say, ‘well, it doesn’t apply to you, you and you’?

        It is pretty simple to do, and happens, appropriately, all the time.

        To do it, you include a phrase like: “this law will not apply to those that meet the following conditions {fill in conditions here}.

        Think draft registration, or drinking age, or voting for felons in some states.

        Sometimes this tactic is inappropriate, sometimes it is not. But I don’t see in principle why every law would have to be exemption free.

        1. Minors are a different class of people, always have been.

          Felons have their rights stripped through due process as punishment for criminal behavior.

          Beyond that, the law should treat everyone the same.

          1. So sayeth we all?

            Clearly, others would argue with your demarcation points. Indeed, the draft law only applies to males, so gender seems to be one that our society is willing to consider, even as it has laws against gender discrimination.

            1. The draft law is wrong on many points, and being gender-specific is one of them. Women should be subject to the draft.

        2. You don’t see in principle why people should be equal before the law?

          And at any rate, you’re talking about legislative exemptions — not indulgences sold by a bureaucleric at his sole discretion.

      4. By ignoring the 14th amendment when it comes to inequality before the law between political classes (although I suppose it doesn’t technically apply to the feds themselves anyway).

        1. It is usually interpreted to apply to the federal government as well…as I understand.

          But unequal protection doesn’t, necessarily, indicate what I think Sevo is complaining about, if I am reading him/her correctly. I’ll have to look back at the wording of the bill.

          1. “But unequal protection doesn’t, necessarily, indicate what I think Sevo is complaining about, if I am reading him/her correctly. ”

            What I’m complaining about is the post-facto awards of special dispensation.
            Per cynical, if you wish to make a law unequal, write it into the law so it can be debated, as much debate as that hag allowed in this case.
            Don’t pass the law and then start defining to whom it applies.

            1. Don’t pass the law and then start defining to whom it applies.

              But where’s the profit in that?

  6. So, then, is there a constitutional work around for free-riders in the healthcare market? Since that is what this aspect of the law attempts to address. It seems that this will result in one of the “tweaks” that the POTUS mentioned recently.

    1. So, then, is there a constitutional work around for free-riders in the healthcare market? Since that is what this aspect of the law attempts to address.

      The law “addressed” the problem with both this and a subsidy to get people to buy health insurance. The subsidy is presumably constitutional– although IIRC studies showed that the amount of government spending in the subsidy to address the free rider problem already exceeded the supposed costs of the free rider issue to other people. If free riders cost other people $50B, but it costs $100B to subsidize them to prevent the free rider problem, it’s not worth addressing.

      In other words, when the cure is worse than the disease, the status quo of living with the free rider problem may be a better option.

      1. JT,
        If the solutions is worse than the problem, then it is not addressing the problem. So, then, the subsidy can be reworked to address the problem, or another approach can be taken. But just because one, out of many, possible solutions doesn’t pass a cost benefit analysis does not mean that the problem is “not worth addressing.”

        1. “If the solutions is worse than the problem, then it is not addressing the problem.”

          Does not follow. You can address a problem in a way that creates a separate problem of greater magnitude.

          1. OK.

            Edit my post to say. “If the solution is worse than the problem, then it is not effectively addressing the problem.”

        2. Re: Neu Mejican,

          If the solutions is worse than the problem, then it is not addressing the problem.

          But that’s only because the law is NOT addressing the problem. Mere details.

          So, then, the subsidy [OM: Subsidy????] can be reworked to address the problem, or another approach can be taken.

          Another approach can be taken.

          But just because one, out of many, possible solutions doesn’t pass a cost benefit analysis, does not mean that the problem is “not worth addressing.”

          Maybe if you and JT stopped making these cost-benefit analysis. Without accurate prices, they’re nothing more than exercises in futility.

      2. Cost shifting is estimated to have cost about $42b in 2008. The total price of operating the law per year going forward is estimated to be at least $100b, perhaps closer to $140b.

    2. Re: Neu Mejican,

      So, then, is there a constitutional work around for free-riders in the healthcare market?

      Do you honestly expect a reply from that obviously loaded question?

      Since that is what this aspect of the law attempts to address.

      Irrelevant. If it’s unconstitutional, it means that the bill is illegal.

      1. Re: Neu Mejican,

        So, then, is there a constitutional work around for free-riders in the healthcare market?

        Do you honestly expect a reply from that obviously loaded question?

        Since that is what this aspect of the law attempts to address.

        Irrelevant. If it’s unconstitutional, it means that the bill is illegal.

        Yeah. It is an honest question. Of course, someone who sees the issue of free riders in the healthcare market as “no problem” will, perhaps, see this as a loaded question. Most discussions of this issue, however, recognize the challenge that free riders cause in our system.

        As for whether it is irrelevant…you’ll need to elaborate. The “unconstitutional” ruling has to do with a specific bill using a specific method for addressing an issue. It does not indicate that it would be unconstitutional to address the free rider issue.

        1. Re: Neu Mejican,

          Yeah. It is an honest question.

          It’s a LOADED question, Neu. LOADED. Meaning, it cannot be honest.

          Of course, someone who sees the issue of free riders in the healthcare market as “no problem” will, perhaps, see this as a loaded question.

          It is irrelevant how someone else sees it, Neu, one way or the other. You’re already ASSUMING it in your question, ergo your question is LOADED.

          Most discussions of this issue, however, recognize the challenge that free riders cause in our system.

          It is one thing to discuss it, quite different to assume it. if you want to discuss the free rider problem, that’s something different than discussing the constitutionality of a bill – they’re separate issues.

          The “unconstitutional” ruling has to do with a specific bill using a specific method for addressing an issue. It does not indicate that it would be unconstitutional to address the free rider issue.

          Because that is not the scope of the issue. The question is: Is this bill constitutional or not? The judge was not asked to give alternatives, as that goes beyond the scope of his competency – he’s not a legislator.

          1. Old Mexican|2.1.11 @ 3:14PM|#

            Re: Neu Mejican,

            Yeah. It is an honest question.

            It’s a LOADED question, Neu. LOADED. Meaning, it cannot be honest.

            It is an honest question, even if “loaded” in your view. Sorry.

            Of course, someone who sees the issue of free riders in the healthcare market as “no problem” will, perhaps, see this as a loaded question.

            It is irrelevant how someone else sees it, Neu, one way or the other. You’re already ASSUMING it in your question, ergo your question is LOADED.

            I am making the standard assumption. If you want to challenge the standard assumption that is fine, but the standard assumptions are usually a short cut for facilitating the discussion.

            Most discussions of this issue, however, recognize the challenge that free riders cause in our system.

            It is one thing to discuss it, quite different to assume it. if you want to discuss the free rider problem, that’s something different than discussing the constitutionality of a bill – they’re separate issues.

            No, they are intertwined as the question of WHAT is constitutional or not has to do with the methods taken to address the free-rider problem assumed to exist by those that wrote the bill.

            The “unconstitutional” ruling has to do with a specific bill using a specific method for addressing an issue. It does not indicate that it would be unconstitutional to address the free rider issue.

            Because that is not the scope of the issue. The question is: Is this bill constitutional or not? The judge was not asked to give alternatives, as that goes beyond the scope of his competency – he’s not a legislator.

            You’re doing the idiot thing again. I was asking the folks here what they saw as a constitutional way to address the free-rider problem (assumed to exist by the legislation). I didn’t ask the judges opinion at all.

            1. Re: Neu Mejican,

              It is an honest question, even if “loaded” in your view. Sorry.

              It is a loaded question, even if you want to view it as honest, Neu. Sorry.

              I am making the standard assumption.

              Don’t beg the question. Whose standard?

              If you want to challenge the standard assumption that is fine, but the standard assumptions are usually a short cut for facilitating the discussion.

              Begs the question. Circular thinking – take your pick. I am not going to fall into that little trap of yours, Neu – LEARN TO ARGUE, FOR A CHANGE.

              No, they are intertwined as the question of WHAT is constitutional or not has to do with the methods taken to address the free-rider problem assumed to exist by those that wrote the bill.

              What? Do you expect me to believe this claptrap?

              They are NOT intertwined, Neu, because what makes the bill constitutional or not has to do with the Constitution and not the so-called free rider problem. The free rider problem is IRRELEVANT.

              You’re doing the idiot thing again. I was asking the folks here what they saw as a constitutional way to address the free-rider problem (assumed to exist by the legislation). I didn’t ask the judges opinion at all.

              But you started with this (and let’s see who is being ‘the idiot’ here):

              “Since that is what this aspect of the law attempts to address.”

              Anyway, I will address your question: Can the free-rider problem be solved by constitutional means?

              The answer is YES – by eliminating all mandates and licensing laws. The repeal of federal rules is 100% constitutional.

              1. Don’t beg the question. Whose standard?

                No begging the question here. The topic under discussion includes a standard assumption. It is legitimate for you to question that standard assumption, but you don’t get to pretend it is not the standard assumption. The law under discussion is premised (at least partly) on the assumption that free-riders in the healthcare system are a problem. Our discussion begins with the law and, therefore, with those assumptions. You’ll have to do the work to show that something is brought to the discussion by setting that standard assumption and assuming that the problem does not exist.

                LEARN TO ARGUE, FOR A CHANGE.

                Learn to have a discussion about a topic, a dialogue with another person, a conversation with someone who has a different perspective…

                They are NOT intertwined, Neu, because what makes the bill constitutional or not has to do with the Constitution and not the so-called free rider problem. The free rider problem is IRRELEVANT.

                You really think that the motivation for the law is irrelevant? Whether or not there is a compelling state interest seems pretty CENTRAL to the constitutionality of this law. I am sure it will be used in any SCOTUS decision.

                1. “You really think that the motivation for the law is irrelevant? Whether or not there is a compelling state interest seems pretty CENTRAL to the constitutionality of this law.”

                  No it isn’t.

                  The Constitution either allows something or it doesn’t. WHY the government wants to do something is irrelevant.

              2. The answer is YES – by eliminating all mandates and licensing laws. The repeal of federal rules is 100% constitutional.

                I don’t think this would successfully address the free-rider problem. It might shift it, but I don’t think it would “be solved” even though I agree that you are discussing constitutional means.

    3. I think the free-rider problem is grossly overstated. Taxpayers, ultimately, are still paying for the accident-type hospital visit and the “savings” proposed by universal preventive care will be off-set by people going to the doctor more often because “it’s free.”

      Letting the uninsurable into Medicaid fixes 90% of the problem (as such) and would cost 1/100th as much.

      1. Yeah, that sounds about right. Expanding Medicaid, however, scares a lot of people, for some reason.

        “The savings” you mention, however, is only offset in terms of money in the healthcare system itself. The benefits of a healthier population have to be looked at as well. Lifetime costs/productivity…all that jazz. Not sure it is an easy calculation to make, particularly once you try to quantify things like quality of life.

        1. Being so involved with health-care in America, I’ve come to view it much like I view education. No matter how good the school, no matter how good the teacher, no matter how attentive the parents, if a kid sets himself to the task of being a dumbass, a dumbass he will remain.

          The vast majority of people already know how to be healthy, they just don’t seem to give a fuck. Most of our health problems in America are lifestyle choices that preventative medicine can barely ameliorate, much less stop. If being blind, impotent, and losing toes and feet won’t incentivize a 400lb diabetic loose weight, what is a nagging doctor going to accomplish?

          1. To nitpick, the 400lbs diabetic is beyond preventative medicine and into reactive medicine. There are lots of ways to address problems before they are serious that go beyond “nagging doctors.”

            That said, lifestyle choices are a huge component of the healthcare issues in this country. No argument.

          2. Medicaid and Medicare foster moral hazard.

            Americans know that taxpayers shall give them a health bailout after a lifetime of self-abuse.

          3. The vast majority of people already know how to be healthy, they just don’t seem to give a fuck. Most of our health problems in America are lifestyle choices that preventative medicine can barely ameliorate, much less stop. If being blind, impotent, and losing toes and feet won’t incentivize a 400lb diabetic loose weight, what is a nagging doctor going to accomplish?

            Any proof?

        2. Re: Neu Mejican,

          The benefits of a healthier population have to be looked at as well.

          Assuming, of course, that people simply stop being responsible for their own bills to become the State’s cattle…

          1. Old Mexican,

            Another idiot response. The society and “THE STATE” are not equivalent. Calculations of benefit happen at the level of society, an aggregate of the individuals making up that society. Like it or not, YOU benefit from having healthier neighbors. The discussion is about methods for the society to maximize that benefit. Government may or may not be the best route.

            1. Re: Neu Mejican,

              The society and “THE STATE” are not equivalent. Calculations of benefit happen at the level of society, an aggregate of the individuals making up that society.

              Another stupid argument, Neu. First, societies do not make calculations, only individuals calculate. Also, who do you think ENFORCES the horrid conclusions, if not the State?

              You want to play cute? Go ahead.

              Like it or not, YOU benefit from having healthier neighbors.

              Like it or not, you cannot KNOW that, Neu – you’re LYING through yout teeth.

              The discussion is about methods for the society to maximize that benefit.

              In the absence of prices, you cannot talk about maximizing those supposed benefits.

              1. c.f. Egypt;p

              2. Like it or not, you cannot KNOW that, Neu – you’re LYING through yout teeth.

                Actually, I not only CAN know that, I DO know that. You benefit from living in a healthier, more productive society, whether you are willing to recognize those benefits or not, they exist.

              3. +1 Om on target.

            2. “Like it or not, YOU benefit from having healthier neighbors.”

              There is no way that you can prove that.

              1. It doesn’t pass the laugh test.

                I might suffer by having healthy neighbors. My well fit buff neighbor could steal my wife.

              2. Gilbert…
                You say that a lot.

                1. And it is an absolute fact each time I do.

                  1. Gilbert Martin|2.1.11 @ 7:46PM|#

                    And it is an absolute fact each time I do.

                    There is no way you can prove that.

                    1. Actually you have already proven it for me.

                      Because when I say that to you it is in response to one of your frequent nebulous claims about “society” that are inherently unprovable.

            3. Like it or not, YOU benefit from having healthier neighbors.

              When those neighbors are your competitors for jobs and work, you suffer when they are healthier and in better position to compete.

              1. Funny how we can come up with examples of how a healthier neighbor can cause harm, but no example of how I would benefit.

                1. Lack of imagination, it seems.

              2. The economy is not zero sum. Those healthy neighbors will create wealth, not steal if from you (necessarily).

            4. “Like it or not, YOU benefit from having healthier neighbors.”

              Like the claim that ‘preventative medicine is cheaper than the alternative”, this is often repeated and never proven.

              1. sevo,

                I have never heard that claim worded quite like that.

                I would be willing to put forth that preventative medicine is better than reactive medicine, but I am not sure it is necessarily cheaper (on a group level – it is certainly cheaper for the individual).

                1. “I have never heard that claim worded quite like that.”

                  I find this hard to believe.
                  It is one of the bedrocks of ‘reform’; the presumption that we can socially-engineer folks into seeking preventative care rather than using ERs.
                  And you missed all that?

                  1. The general idea, sure, just not the particular wording. What’s “the alternative?” Once you go to “rather than using the ER, we are on familiar territory.

              2. Actually studies have shown the result is quite the opposite.

                The vaunted “preventative medicine” results in a lot of preventative procedures performed on a whole lot of people who really don’t need it at all and the cumulative costs of that outweighs the benefit to the using preventative procedures on the subset of people that it would really be effective in heading off more reactive medicine had they not received the preventative procedures.

                1. a lot of preventative procedures performed on a whole lot of people who really don’t need it at all

                  Ideed, bad practices cost money.

                  the benefit to the using preventative procedures on the subset of people that it would really be effective in heading off more reactive medicine had they not received the preventative procedures.

                  And yet even you recognize that when used properly preventative medicine is the preferred practice.

                  As I said above, the primary benefits of preventative medicine are, well, prevention of illness. The cost issue is secondary. There are medical reasons to focus on prevention…if done properly, this can also save money, but that is a secondary issue.

        3. So how does the legislation get people who don’t take care of themselves, don’t get preventative care to start doing so? This law does nothing (thanks jebus) on that front. Lots of people with great healthcare don’t do that today. This law is not going to make us a healthier lot.

      2. “I think the free-rider problem is grossly overstated”

        The “free rider” problem was created by government in the first place when it passed a law mandating treatment at emergency rooms regardless of ability to pay.

        Thus it can be taken care of by repealing that law. Seeing as how THAT law was also unconstitutional – as is Medicare, Medicaid and Social Security generically.

        There is greater cost shifting from Medicare and Medicaid onto private patients than there is from unisured patients.

        Get government out of all of it and go back to the way it was before WW2 when people either paid for their own care out of pocket, bought private health insurance on their own or took the chance that some charity hospital would choose to treat them for free.

        Healthcare isn’t any more of a “crisis” today than it was then. The primary thing that has changed is peoples perceptions of what they are “entitled” to regardless of whether they can pay for them or not.

        1. That is one approach.

    4. So, then, is there a constitutional work around for free-riders in the healthcare market?

      Make them pay for any services they use.

    5. Depends on your interpretation. Since most of us here have an interpretation of the ICC that is much more limited than the conventional wisdom (at least in Washington), there would probably be no room for Congress to address free-riding that is confined to a state’s economy (which most health-care or health-insurance would be).

      While it could do something about inter-state free-riding, the states themselves have plenty of incentive to do that (as they do with, for example, public universities), so all Congress needs to do is stay out of the way rather than rewarding free-riders.

  7. So, no jam? Well, maybe tomorrow.

  8. This ruling is like a cluster bomb that is going to go off in all sorts of very interesting places. One of the plaintiff states will try to limit medicaid eligibility in violation of the statute; tanning bed owners will ask for their tanning tax payments back (or John Boeher will demand a refund), and some insurer will tell a 25 year old to act like an adult and get his own dammed coverage instead of hitching on to his parent’s employer-based coverage. Once those bomblettes start going off, the 11th circuit is going to have to expedite review.

    1. Not to mention the people that have already gotten shafted due to the expectation that the bill would take effect. Wow, you get crappier coverage, higher rates, and then the bill that caused it doesn’t even take effect. Now, if the insurance companies had any fucking sense in their heads, they would put things back to where they were, cut down on premiums, and so on, and let everyone share in the joy of killing HCR, rather than keeping their premiums/services as they are under right now. But suits are politically retarded, so I doubt it will happen.

      1. Not to mention the people that have already gotten shafted due to the expectation that the bill would take effect. Wow, you get crappier coverage, higher rates, and then the bill that caused it doesn’t even take effect. Now, if the insurance companies had any fucking sense in their heads, they would put things back to where they were, cut down on premiums, and so on, and let everyone share in the joy of killing HCR, rather than keeping their premiums/services as they are under right now. But suits are politically retarded, so I doubt it will happen.

        All of this could have been avoided though if the advocates for this type of law had decided to campaign for state-level laws, which would sidesteps Article I concerns.

    2. “Once those bomblettes start going off, the 11th circuit is going to have to expedite review.”

      Obama’s legal team doesn’t seem to be in any rush, and if some of that stuff begins, they’re going to be wrong-footed.
      FWIW, the Repubs are going to force a vote in the Senate this week.

  9. The issue of whether or not this law is constitutional is admittedly a gray area.

    While Gonzales v. Raich has a broad interpretation of the interstate commerce clause, United States v. Lopez and United States v. Morrison places limits on the power to regulate commerce. There is no clear-cut precedent dispositive on this question one way or another, unlike due process or equal protection challenges against anti-polygamy laws.

    Of course, this does beg the question on why advocates of this sort of law do not try to get it enacted on a state-by-state basis. Surely there are no Article I concerns on states passing laws identical to this one.

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