Constitutional Law

What If the Supreme Court Decided ObamaCare in Favor of the Insurance Industry?

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The White House is calmly assuring anyone who asks that there's no question that last year's health care overhaul will be found constitutional in its entirety. But as The Hill reports, some Democrats aren't so confident:

Over the last couple weeks, congressional Democrats have told The Hill that the law faces danger in the hands of the Supreme Court, which The New York Times editorial page recently labeled the most conservative high court since the 1950s.

To some extent, this is all just expectations setting. I've cautioned critics of the law that the odds are against them in the Supreme Court. And even though conventional wisdom now gives opponents a much better shot than when the challenges first began making their way through the court system, I'd say that's still true. It's not that critics should be more confident of their chances; it's that everyone on both sides should be far less certain they can predict the outcome. The decision could go 5-4 either way. It could go 7-2 against the mandate. It's still useful to look into each justice's history and previous court decisions, but at this point, reading the tea leaves will only get you so far. 

The Hill report continues:

While the lawmakers are not second-guessing the administration's legal strategy, some are clearly bracing for defeat.

"Of course I'm concerned," said Sen. Sherrod Brown (D-Ohio). The justices "decide for insurance companies, they decide for oil companies, they decide for the wealthy too often."

"Decide for insurance companies." That's an interesting choice of phrase. What would happen if the Supreme Court decided "for insurance companies" in this case? Well, according to a Supreme Court brief filed by the insurance industry's biggest lobbying group, the industry doesn't oppose the law—just so long as it includes the most constitutionally dubious provision, a mandate to purchase health insurance. So one way to decide for the insurance companies would be to leave the law exactly as it is. 

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  1. There’s no link to the Hill article.

  2. What If the Supreme Court Decided ObamaCare in Favor of the Insurance Industry?

    I am surprise.

  3. The justices “decide for insurance companies, they decide for oil companies, they decide for the wealthy too often.”

    Why can’t some reporter ask him to name some example cases, on the spot? The Palin-via-Couric look would be great.

    1. except that sherrod brown wouldnt say than “all of them” or that he could see an insurance co fm his porch

      1. Do you even speak English anymore?

        1. He’s never spoken English, actually.

        2. nein ich bin ein berliner

      2. Way to get Palin and SNL mixed up.

    2. He names Citizens United later in the piece.

      1. Is that that company of wealthy people I buy my oil insurance from?

        1. No no no. It’s the oil insurance you buy your company of wealthy people from.

          1. No no no. It’s a brand of insurance oil. Wealthy people like well lubricated insurance, it runs smoother.

  4. Dammit! When can we get rid of Sherrod Brown?

    1. 11/6/2012…..his day is coming.

    2. Is Sherrod Brown stupider than Bob Casey Jr. ? My home state and current state are certainly racing for the bottom.

      1. Sherrod Brown is dumber by miles.

        “I look back in history, in some of the worst governments that we had, you know the first thing they did, go after unions, Hitler didn’t want unions, Stalin didn’t want unions,”

      2. As long as Sheila Jackson-Lee is in office, you’ll never catch Texas.

        1. No shit. I just got redistricted into TX-18; I’m considering moving rather than living with the shame.

        2. Yes not only do I have SJL as my congresscritter but I have Jolanda Jones, corrupt former Survivor contestant as my city councilcritter.

  5. If the SC drops the ball and rules in favor of Obamacare, my question for the sore winners will be “So… what’s the *next* thing you want us to be forced to purchase?”.

    1. Visa stock. It’s at 94 and my options really start to turn a profit around 110.

    2. How about a pink/purple featured butt plug. Once applied, it looks like you have a tail.

      1. The vodka-infused ones kind of sell themselves already.

        1. Yea, but they kinda burn when u have open soars.

          1. Four Loko Tampons.

            Oh, wait, Big Nanny took out all the good stuff from that swill, leaving it just 12 percent malt liquor with nasty-assed fruit flavors.

  6. So… what’s the *next* thing you want us to be forced to purchase?

    Forever Lazy footless footie pajamas! For teh childrunz!

  7. The whole thing makes me queasy, watching my country disappear before my eyes.

    1. so visit ur eye doc. jeesch

      1. yeh a;l puiwn apc ;ln.,n oahd !! lol

  8. I’ve cautioned critics of the law not that the odds are against them in the Supreme Court.

    Que?

    Is that an errant “not”?

    1. I was trying to decipher that, as well. It’s almost a double negative.

      1. Readin’ don’t never not done nothing for not nonebody. Never not no one, didn’t about no reason not never. And by God they never not ain’t gonna will!

        1. Sheriff: You passed, boy!

          Rusty: I did? I did! Hell, yeah! I’m a high school congraduate.

          Earlie Cuyler: Graduations, Rusty.

          Rusty: Ain’t nuthin gonna stop me now but my innate inabilitree to progress cognatious thunk.

          1. I like this Cuyler fellow. I could use someone like him on my staff.

            1. I could use someone like him on my staff.

              I was just thinking the same thing.

          2. Really underrated show.

  9. He names Citizens United later in the piece.

    The day the Supreme Court put a stake through America’s heart!

  10. So, will Florida, et al. vs. Obamacare be “the next Dred Scott”?

    1. Yes. Prepare now.

  11. …it’s that everyone on both sides should be far less certain they can predict the outcome.

    Suderman, you dick, I want to be reassured. Reassure me!

  12. The health care bill was written by and for the insurance industry, and others like big pharma. It is certainly not to benefit you or me. Nothing government ever does, is.

    1. Sure it was. But when it is struck down the Dems will claim that it was a victory for big business. It is not so much that they lie. It is that they live thier lives completely outside of reality or truth.

      1. too many “theys” again. this aint radio entertainment

        1. The Vast Right-Wing Conspiracy took down the Ed Schultz message board, but by Gaia we’re still gonna be heard!

          1. Yes, my children… spread my words like seeds, and nurture them with your golden nectar.

            1. We’re working on taking over the internet so Ed Schultz-style opinions will be the ONLY ones allowed.

              1. using what for money?

  13. So Kagan was wearing her cheerleading outfit, waving her pom-pons, and screaming “Go Team Rah Rah” during the passage of Obamacare. Since we know that she won’t recuse herself, will the other justices (Kennedy in particular) react in any way that increases or decreases the chance that the Supreme Court overturns the individual mandate.

    1. In a better world the other justices would shame her into recusing herself out of respect for the institution. But we don’t live in a better world. She doesn’t give a shit about anything or anyone but herself and her side winning.

      1. Look for a meme to emerge that Kagan should recuse herself only if Thomas likewise recuses himself, because of the conflict with his wife.

        1. no, the meme will be Thomas should step down because he has a conflict. Kagan is as pure as the first snow.

          1. The VERY first snow, of course. The one that happened trillions of years ago, on a long-dead distant planet back when Earth was still a ball of gas.

          2. I actually saw someone suggest this in article in the spring.

    2. What are the legal options? There’s impeachment, or the threat of impeachment. I suppose a lower court judge in her circuit could issue a writ of mandamus to have her recused, which the high court would have to hear (she’d definitely have to recuse herself from that discussion), though I’m not sure that’s even possible with a SCOTUS justice.

      There’s also the possibility of a constitutional and/or federalist crisis resulting, where the other branches and/or the states refuse to accept a decision with her in the majority (assuming she upholds the mandate, of course). That would be a shitstorm of the highest order.

      1. Frankly, I’m getting closer to the watch the world burn idea every day. Fuck it, bring the shitstorm. Let’s hash it out once and for all: does the Constitution mean anything or have we just given up on a constitutional republic? Let’s not beat around the bush anymore.

        1. I think we need a constitutional crisis. The Court stretching things to avoid one has helped us get to the point where we have a legally unfettered government.

          How anyone of any political stripe thinks unlimited government power isn’t dangerous is beyond me. Thousands of years of human history screams “WTF?”

          1. Thousands of Occupy Wall Streets youths are chanting to remove the fetters of gub’ment, and the media is lapping it up. We are doomed.

            1. We need a Fettering Movement.

        2. Team Obama and Team Red are workin’ as fast as they can, T. Shit like this takes time, y’know.

        3. Sadly, I must agree. Are these the United States of America with a Constitution that dates to the age of reason, or is this the United States of America with a “living” constitution and a piece of paper that is just a symbol with as much power as the Queen of England?

          Time to choose your teams.

  14. “Of course I’m concerned,” said Sen. Sherrod Brown (D-Ohio). The justices “decide for insurance companies, they decide for oil companies, they decide for the wealthy too often.”
    The Senator has a sloped forehead, denoting a lack of intelligence.

    1. Where does Sherrod Brown place on the stOOpid scale, compared to:

      Maxine “flag on Mars” Waters

      Hank “Guam could tip over and capsize” Johnson

      anything uttered by Chucky Schumer

      or the collected works of Paulie Krugnuts

      Damn, just typing all those references dropped MY I.Q. ten points. I’m hoping it’ll wear off soon.

      1. Oops, I think it was Sheila Jackson-Lee who pulled the Mars-flag boner, and I apologize for mixing that up AND leaving her name off the stOOpid list.

        1. dont forget reagan’s “facts are stupid things” or the many, many amusing bushisms

          1. “Wizard’s First Rule: people are stupid.” Richard and Kahlan frowned even more. “People are stupid; given proper motivation, almost anyone will believe almost anything. Because people are stupid, they will believe a lie because they want to believe it’s true, or because they are afraid it might be true. People’s heads are full of knowledge, facts, and beliefs, and most of it is false, yet they think it all true. People are stupid; they can only rarely tell the difference between a lie and the truth, and yet they are confident they can, and so are all the easier to fool.”

          2. and also 57 states and the austrian language navy ‘corps’man, etc etc

  15. I’m sure Kagan will say, “Just because I was in favor of this perfectly Constitutional and desperately needed law from the beginning, doesn’t mean I cannot exercise a cautiously reasoned and dispassionate judgement, you racist hicks.”

    1. “…so get back to your tractor pulls, you racist hicks.”

      ftfy

      1. You summed it up quite well, wylie.

  16. Here’s what’s going to happen:

    The mandate will be upheld by the SCOTUS.

    And either the text of the decision, or the oral arguments, will raise the question, “If the Congress can do this, what protection do we have against the Congress requiring us to do anything at all?” and the answer will be: the democratic process.

    “Elect congressmen who won’t vote for you to be forced to do crazy shit” will be offered as the public’s only defense against the ICC.

  17. either way, this is a potential lose-lose for Obama. If the mandate is ‘found’ constitutional, then the ‘pubs will get angrier, pushing harder for an election sweep, forcing a (ha!) potential law change. If the Obamacare goes down, then the admin looks like a bunch of losers.

    1. If it goes down, doesn’t that rile up the democratic base?

      1. meh – good question. They seem fairly demoralized now.

  18. I love how often these assclowns in the media and in dc deride the wealthy as if they aren’t a very large portion of that group of people.

  19. I see how you are, Suderman.

  20. Tea Party slammed two torpedoes into our side, Chief. We was comin’ back from the Bushpig Years… just passed The Bill. The Obamacare Bill. Three hundred and fourteen men and women, all good Democrats, went into the water. Vessel went down quicker than you can say Stimulus. Didn’t see the first tea bagger for about a half an hour. Scott Brown, a fancy boy. You know how you know that when you’re in the water, Chief? You tell by looking from the dorsal to the tail fin. What we didn’t know, was our Obamacare Bill had been so badly drafted, no jobs would ever be created in America under it. Pelosi and Obama just stood up there smiling like fucking corpses. Very first light, Chief, tea baggers come cruisin’, so we formed ourselves into tight groups. You know, it was kinda like old squares in the battle like you see in the calendar named “The Battle of Waterloo” and the idea was: tea bagger comes to the nearest man, that man he starts poundin’ and hollerin’ and screamin’ about racism and the press starts calling everyone crazy and birthers and sometimes the tea bagger will go away… but sometimes they wouldn’t go away. Sometimes that tea bagger he looks right into ya. Right into your eyes. And, you know, the thing about a tea bagger… he’s got lifeless eyes. Black eyes. Like a doll’s eyes. When he comes at ya, doesn’t seem to be living… until he bites ya, and those black eyes roll over white and then… ah then you hear that terrible high-pitched screamin’ of Nancy Pelosi. The map turns red, and despite all the poundin’ and the hollerin’, they all come in and they… rip you to pieces. You know by the end of that first mid-term, lost a sixty eight democrats. I don’t know how many tea baggers, maybe a million, maybe fifty million. I know how many democrats, they averaged six an hour. On Thursday morning, Chief, I bumped into a friend of mine, Martha Coakley from Boston. Fascist bitch. Attorney General ? but I’m being redundant. I thought she was asleep. I reached over to wake her up. She bobbed up, down in the water just like a kinda top. Upended. Well, she’d been bitten in half below the waist. Noon, the fifth day, Mr. Hooper, a public employees union saw us. They swung in low and saw us. Anyway, they saw us and they come in low and three hours later a big fat union honcho comes down and starts to pick us up. You know that was the time I was most frightened… waitin’ for my turn. I’ll never vote for a healthcare bill again. So, three hundred and fourteen democrats went in the water; less than two hundred come out and the tea baggers took the rest, November the 6th, 2012. Anyway, we passed the Bill.

    1. Keeping it short?

    2. I hereby award you 12 internets.

    3. That was beautiful.

  21. Wouldn’t the fact that the law is favoring the insurance industry be an argument against it?

    1. That’s their secret plan. They filed an amicus brief in favor of the law, knowing that it would cause more people to oppose it.

  22. It could go 7-2 against the mandate.

    Well, I suppose anything’s possible, but I think the likely spread based on voting history is from 5-4 against the mandate to 8-1 in favor of the mandate.

    None of the four lefty Dem Justices (Kagan, Sotomayor, Breyer, Ginsburg) are going to vote against it. All but one (Thomas) of the others has been sufficiently prostrate before the awesome majesty of the Commerce Clause in the past that they could well vote to uphold.

    1. I think they’re going to kill the mandate (5-4 with nine separate opinions), but in such a way that allows the government to do what it wants, anyway.

    2. Agreed, Kagan, Sotomayor, Breyer, Ginsburg are definite votes to uphold.

      Thomas is definite to strike down.

      Roberts, Alito, and Kennedy could go either way and will likely vote together. Scalia is slightly more likely than those three to strike down.

    3. What Democrats need to do is spin the mandate like Eminent Domain for your healthcare. Their weakness now is that they’re spinning it like an ATM fee for your healthcare, and no one likes ATM fees.

  23. [ Begging for helps ] Complaint about Human Rights Violations by IBM China on Centennial

    Please Google:

    IBM detained mother of ex-employee on the day of centennial
    or
    How Much IBM Can Get Away with is the Responsibility of the Media
    or
    Tragedy of Labor Rights Repression in IBM China

  24. 5-4 mandate will SURVIVE. I think Scalia will vote the other way.

    1. That’s depressing, Alice. Thanks for killing the mood.

    2. The reasoning will be something like: “Since conscription is Constitutional and is in effect a mandated purchase, we have adequate precedent.”

      1. The reasoning will be “sure this violates the Constitution as written but to strike it down would cause chaos.”

        1. Unfortunately, this is probably the most likely outcome.

    3. I think you are right about Scalia being more likely to retain the mandate than Kennedy. I don’t trust Scalia. But if Scalia is the deciding vote, I give it at best a 60-40 chance of being upheld. I don’t think Scalia will vote to uhold the mandate. But he might.

    4. 5-4 mandate will SURVIVE

      Ah, the worst case scenario. The mandate stands only because a judge with obvious conflicts of interest voted to uphold it.

      Actually, I think that’s the most likely scenario as well.

  25. Here’s the thing:

    I think it’s pretty clear that the SCOTUS would have found 8-1 or 9-0 that the mandate was constitutional if it had been structured as a tax.

    If every citizen in the US faced a $5000 “healthcare head tax”, but you could deduct $5000 if you could prove you had qualifying insurance, this court and every other post-1936 SCOTUS would support it.

    Is there any chance that they issue a ruling that openly says, “The mandate is unconstitutional as written but would have been constitutional written another way” or is that just too intrusive on the legislative process for them to do it?

    1. They’ve hinted in the past about ways to trim bills to pass muster.

      I don’t even think they would need to do that here. Its pretty much a given, and everybody knows it.

    2. I know you just picked a number at semi-random, but I would hate to think what that number would be, because my insurance would suddenly cost that much.

      Mine is under $3500 annually.

      1. Then again…if HSA’s counted, then hopefully the base hi-deductible plan would stay cheap and I could put in enough to reach the $5k each year.

      2. My high deductible plus HSA costs me about $1400 plus the portion of the deductible I spend (which has been

        1. Hmm. squirrels. Spit out my less than sign and everything after. Drop it! Give it back!

    3. Tony and Neu Mejican repeatedly said it already is like a tax. So that debate’s dead in the water.

  26. The New York Times editorial page recently labeled the most conservative high court since the 1950s.

    Ah, well, if the NYT says so… although I have to wonder who at the NYT is in a position to judge just how conservative the court is. Seems to me anyone left of Mao is “conservative” in the eyes of the NYT editorial board.

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