Supreme Court

Gaming Out the ObamaCare Ruling: 3 Possible Outcomes

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Sometime in the next 10 days, and possibly as early as tomorrow morning, the Supreme Court is expected to release its decision about the fate of the Patient Protection and Affordable Care Act — a.k.a. ObamaCare. With a decision like this, practically anything is possible. But most high court watchers agree that there are only a handful of likely outcomes.

Whatever happens, the ruling is bound to have a big effect on the national political scene, health and entitlement policy, and the legal boundaries of federal policymaking for years to come. Here's a brief look at the most likely outcomes and some of the possible ramifications of each.

Uphold the entire law: This is what the Obama administration and Democrats in Congress are hoping for. This will vindicate the administration to some degree, but it may also spark further public opposition: A recent study by the University of Missouri Political Economics Research Lab reports that the public, which has long been highly opposed to the mandate, would be most upset of the Court decided to uphold the entire law. A ruling to uphold the entire law would also close off opportunities to limit Congressional authority under the Constitution's Commerce Clause going forward.

Strike down the mandate: There are two basic ways this could go. Either the court could strike down the mandate alone, or the court could strike down the mandate along with linked insurance regulations like guaranteed issue and community rating that govern how health insurers can deal with preexisting conditions.

Striking down the mandate and various related provisions would leave much of the law in place, but would also excise some of the most popular parts of the law — the rules restricting the way insurers can discriminate based on preexisting conditions.

Striking down the mandate alone might create a different problem: An easily gamed health insurance system in which it's possible for individuals to wait until sick to purchase individual health insurance at artificially low rates. As I noted in a 2009 Wall Street Journal op-ed, states that have experimented with preexisting condition rules for insurers while forgoing a mandate have watched their individual insurance markets melt down as people drop out and wait until they're sick to purchase coverage. But none of those states had ObamaCare's system of middle class insurance subsidies. Right now there's some debate as to whether the inducement provided by the insurance subsidies would be enough to draw people into the system. Massachusetts health care overhaul mastermind Jonathan Gruber has run numbers suggesting that even with subsidies, the preexisiting condition rules wouldn't work without a mandate, which is certainly plausible. But there's no real-world example for us to look at, which makes it hard to know.

Strike down the entire law: Even if the court took down the preexisting condition rules, it's not clear how the government-run health exchanges would work in the absence of the mandate and related provisions. Those exchanges are intended as the primary vehicle for delivering regulated, subsidized coverage, but as I noted in Reason's July issue, without the preexisting condition rules, that could prove difficult (not to mention all the other challenges exchange designers are already struggling with). The law was designed as an interlocking whole, so taking out any part, especially the mandate, might crash the rest of the system. Which is why the Supreme Court might decide that the least intrusive way to strike down the mandate is to take down the entire law and let Congress start over. This is the least likely outcome, but it's not entirely out of the bounds of possibility. It's also the best possible outcome for those opposed to the law.

I'm not particularly confident in my ability to predict the outcome of the ruling, but I'll venture a guess and say that I think the most likely outcome is that the court strikes down the mandate and the preexisting condition regulations together. Taking down the entire law is probably be more than the court is willing to do, but even the administration explicitly argued that if the mandate goes, the rules regulation preexisting conditions should be scrapped too. If that's the ruling, we'll be left with the insurance subsidies, the Medicaid expansion, the rules governing exchanges (which states may decline to set up and let the feds pay for instead), and assorted other smaller provisions. And Congress will have to sort it all out. It'll be a big, expensive, technocratic mess — in other words, a lot like it is already.

Update: On a related note, prediction site Intrade now has the odds of the Supreme Court striking down at least the mandate at 79.9 percent. 

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  1. Strike it down with all your might, SCOTUS. It’s the right thing to do.

    1. If they strike it down it may become more powerful than you ever imagined, ProL.

      1. No, that only works with Jedi. Obamacare is purely a Dark Side construct. Kill it, and it dies.

        1. Yes, both the Master and the Apprentice or the evil still survives.

        2. It is also bullshit with Jedi as well.

          Oh no he is whispering into Luke’s ear!!!

          Such power beyond imagination!!!

  2. It’ll be a big, expensive, technocratic mess ? in other words, a lot like it is already.

    I’m thinking the Ds want this–the biggest, most unclear and screwed-up mess possible–so that they point to it and say, “See, won’t single-payer be much easier and less screwed-up? Let’s do that!”

    1. I’m thinking the Ds want this–the biggest, most unclear and screwed-up mess possible–so that they point to it and say, “See, won’t single-payer be much easier and less screwed-up? Let’s do that!”

      All the while screeching about MARKIT FAYLURE OMG!!!!11!!!one!!!!11

  3. Right now there’s some debate as to whether the inducement provided by the insurance subsidies would be enough to draw people into the system.

    It would not.

    1. there is a huge problem in MASS from claim jumping: http://www.slideshare.net/Crai…..more-cash/

  4. Wasn’t there a big brouhaha when the law was first passed that there was no severability clause? Has that been since rectified or was that what “interlocking whole” alludes to?

    1. Because there is no severability clause determining in advance what stays and what doesn’t if any provision is ruled unconstitutional, the court has to decide what stays and what goes — hence the multiple possibilities.

      1. Ahhh, ok, thank you!

  5. OT: Ron Paul admits taking less in Social Security payments than he is currently paying in, let alone what he paid in in the past. HuffPo commenters conclude that this makes him a terrible person and discredits everything he’s ever said.

    http://www.huffingtonpost.com/…..12117.html

    1. His paycheck comes from tax money too. Duh.

    2. And when the whole thing goes tits up they’ll all stand around and say “Whaahappinned?” with the dull stare of the good collectivist sheeple they are. Can’t wait.

      1. They already do that. No need to wait.

    3. Smug, dumb, and liberal is no way to go through life, son.

    4. I heard he also drives on roads and uses the post office. IN SOMALIA!

    5. Those comments. Wow. Honest to God, I just don’t know where you even start countering stuff like this:

      I’ve always believed that Ron Paul was a hypocrite …. because he wants people to vote for him based on what he says but not what he does.

      He is willing to protect his freedoms and defend his beliefs while calling the protection of freedoms and beliefs of those who are not like him (white, male) an unnecessary involvement of government — an invasion of government, if you will.

      He has no trouble receiving a Government (public sector) paycheck (whether as a member of the military or member of Congress) and certainly not enjoying the Cadillac healthcare plans Congress enjoys … though opposes it for others.

      His is the kind of rhetoric that calls for protecting the privileges of a few in order to impose the ideology of even fewer … where, in the end, they protect their own interest and NEVER consider the greater good …

      There’s not much difference between Ron Paul, Ayn Rand … Paul Ryan and the rest who all have personally benefited from the Government but want Government not to benefit anyone else who isn’t like them.

  6. These days, nothing would surprise me.

    So, Ima predict: “On second thought, we refuse to rule on this.”

  7. Every once is a great while, resort to the all-caps key is justified. To wit:

    What you are calling the “various related provisons” are REGULATIONS OF INTERSTATE COMMERCE YOU MORONS and if getting rid of the “individual mandate” means that you also have to get rid of said regulations on interstate commerce then THE “INDIVIDUAL MANDATE” IS “NECESSARY AND PROPER” PERFORCE!!!!

    By way of further explanation:

    What is “necessary and proper” does not have to stand independently under the interstate-commerce clause. It only has to have a ‘necessary-and-proper’ connection to that which does stand independently under the interstate-commerce clause. Otherwise, the necessary-and-proper clause would be nothing but “surplusage.”

    1. Kinda circular, eh? You want to make a law that forces people to buy a certain product, which you maintain would be regulation of commerce among the several states because Congress has the power to do so, and then say that the same law forcing people to buy the product is “necessary and proper for carrying into Execution the foregoing Powers.”

      1. He should’ve quoted the Preamble. “[P]romote the general Welfare” and “secure the Blessings of Liberty to ourselves and our Posterity” clearly give the government the power to do anything, anything at all. The rest of the Constitution is simply doodling by James Madison.

        1. Stupid Madison with his drawings of fire breathing dragons and busty wenches, couldn’t be bothered to write out a clear and concise document. What an ass.

      2. Only works if there is some “moral hazard” or “adverse selection” problem with the product in question.. Health insurance is one of the few such products in the market.

        What works for justifying an individual mandate for health insurance would not work for GM cars, or for broccoli.

        Think it through, pal, before you snap a reply. I’m right on this. Logic.

        1. Only works if there is some “moral hazard” or “adverse selection” problem with the product in question

          Really? Where does it say that in the Constitution?

          1. Okay, so you came here on the short school bus. But I’m gonna work with you anyway, because I am a patient teacher:

            The individual mandate is “necessary and proper” to interstate-commerce regulations on ‘shall issue’ and ‘community rating’ because, without the individual mandate, you have adverse selection in health insurance.

            INDIVIDUAL MANDATE = AVOIDING ADVERSE SELECTION = NECESSARY PROPER

            There is no “adverse selection” problem with GM cars or with broccoli, so the same justification would not fly.

            Comprende?

            1. Shut up Mary.

            2. Lemme see if I follow:

              What you are really arguing is that Congress, by passing laws that would be absolutely catastrophic on their own (shall issue/community rating) , thereby acquires the authority to pass laws (individual mandate) that it otherwise would have no authority to pass.

              There is no “adverse selection” problem with GM cars or with broccoli, so the same justification would not fly.

              The necessary and proper clause is not limited to avoiding adverse selection issues. Under your approach, Congress could mandate the purchase of GM cars or broccoli, just by first passing a law that would be really stupid without such mandates.

              Let’s say Congress regulates interstate commerce by mandating that anyone growing any vegetables at all must grow broccoli (easily done, under Wickard). Then, to avoid the inevitable economic impact of all that unsold broccoli on farmers, it mandates that everyone buy a pound of broccoli a week.

              1. You are proposing that congress gratuitously create a problem out of thin air, then gratuitously solve that problem with an individual mandate.

                Could congress say that you can only ship red paint in interstate commerce, and then require that everybody buy a bucket of red paint each month?

                No. That fails rational-basis. Creating a comprehensive interstate regulatory regime that extends medical coverage to all Americans is nothing like such an absurdist puppet-show.

                You may think very little of the political priority of extending health insurance to those who cannot afford it under the status quo ante, but that does not make Obamacare the equivalent of a farcical ban-plus-mandate hypothetical like you are proposing.

                1. You are proposing that congress gratuitously create a problem out of thin air, then gratuitously solve that problem with an individual mandate.

                  That’s so far fetched; it’s not like that’s what actually happened or anything.

                  Creating a comprehensive interstate regulatory regime that extends medical coverage to all Americans is nothing like such an absurdist puppet-show.

                  “Healthcare is different!”

                  1. Yes, health care — specifically medical insurance — is different. Exactly.

                2. The “raitonal basis” only exists if you do something completely irrational, like force insurance companies to behave like charities first.

                  1. There is nothing in the constitution that says insurance companies have a “right” to be organized on a for-profit basis, or a “right” not to be regulated in a manner similar to public utilities.

                    1. Well there is something about not taking property for public use without just compensation.

                      Arguably, that means if you force insurance companies to pay for free healthcare for the sick, the government should be forced to compensate them.

                      And not by putting a gun to private citzens heads and force thme to buy their product.

                    2. Obamacare sets up a system on which health insurance can be sold to all comers on a for-profit basis. If the insurance companies do not want to participate in the market as structured, they can take their investments elsewhere — to another economic sector entirely, if they want (like broccoli farming).

                      There is no 5th Amendment “taking” going on here. This isn’t rent control. The insurance companies are not being forced to stay in the market.

                    3. If the insurance companies do not want to participate in the market as structured, they can take their investments elsewhere

                      That more than you can say for the individual. The mandate defines everyone into the market, so they CAN’T “take their money elsewhere”. They’re forced to participate in the health insurance market, and then compelled to purchase only insurance that meets the governments regulatory standards.
                      You don’t have the option, as an individual of not buying insurance, or of buying catestrophic only insurance, or of insurance that is prices according to your own personal risk, or of insurance that doesn’t cover birth control or mammograms, or a host of other things.

                    4. That’s not a “takings,” either.

                    5. Yes, it is.

                    6. Actually no they couldn’t because without the private insurance companies no one would have access to health insurance they are being required to purchase ergo it is necessary and proper for Congress to compell all currently existing medical insurance providers to remain in business and selling medical insurance whether they want to or not.

          2. Let me be clear. You are not qualified to read the Constitution.

        2. Uh. Your logic is circular. The necessary and proper clause says that Congress can pass laws that are necessary and proper for carrying out their enumerated powers. You are begging the question as to whether their enumerated powers include the power to force people to buy a certain product.

          1. They can only force people to buy a certain product if forcing people to buy a certain product is necessary to keeping the product available on the regulated terms.

            If, for instance (under bizarre circumstances that would never really apply), a law saying stores had to charge everybody the same price for broccoli (which, actually, the stores do anyway) caused there to be an “adverse selection” problem in the broccoli market, then, yes, you could have a broccoli mandate. Otherwise, no.

            1. Gabe, you’re possibly the stupidest person ever to post here. Congratulations. And we appreciate you proving it with every post.

              HAHAHAHAHAHAHAHAHAHAHAHAHAHA

              1. “a law saying stores had to charge everybody the same price for broccoli”

                would milk price controls by dairy boards be a good example of this?

                1. Maybe. Relevance?

              2. It’s not so much that he’s stupid, Epi–Tony and shrike are plenty stupid–it’s his unique blend of stupid and delusion that makes him so “special.” He really thinks he’s a genius come here to lecture us, that it’s some sort of favor to us.

                Of course, as crazy as he is, how much more crazy to do you have to be to attempt to argue with some like him, who has almost no grounding in reality?. You might as well go argue with a brick wall about how it’s really a field of daisies.

            2. They can only force people to buy a certain product if forcing people to buy a certain product is necessary to keeping the product available on the regulated terms.

              Careful, now. Under that approach, big chunks of the federal register, which require people to buy all sorts of stuff, would have to be thrown out.

              For example, OSHA requires that certain businesses buy all kinds of safety gear. Now, that mandate can’t possibly be justified as “necessary to keeping the product available on the regulated terms.”

              1. The interstate jurisdictional hook is the employer’s business activity, not the safety gear itself.

                1. The interstate jurisdictional hook is the employer’s business activity, not the safety gear itself.

                  Sure. Just like the interstate jurisdictional hook for the individual mandate is the shall issue/community rating, right?

                  My point is that the mandate (to buy safety gear/health insurance) is justified under the necessary and proper clause, yes? And you are positing that such mandates are allowed under that clause only if “necessary to keeping the product available on the regulated terms.”

                  Which means that the OSHA safety gear mandate is unconstitutional.

                  1. I am distinguishing between the proverbial broccoli mandate and the actual insurance mandate — mandates that apply to passive citizens.

                    OSHA safety-gear “mandates” only apply to parties actively participating in commerce by employing people in certain jobs. If the individual mandate was limited to people actively engaged in commerce, it wouldn’t be the “mandate” we are talking about.

                    Are you really confused by this distinction, or are you just f–king with me for giggles?

                    1. So are you saying that the interstate commerce clause doesn’t give Congress the power to regulate activities that are not considered interstate commerce?

                    2. Yes, Juice, and that is a tautology that everyone agrees on. The question is what is “considered interstate commerce.” The notion of it used to be so restrictive that we needed a constitutional amendment to outlaw alcoholic beverages. Now, it is so broad that even a single marijuana plant meets the test. Therein lies the controversy.

                    3. Therein lies the controversy.

                      No shit. But there should be no controversy because the insurance mandate is “necessary and proper”, right?

                    4. Let’s apply your logic to a different power of congress, to establish Post Offices. What if no one bought stamps anymore? What if the Post Office was going bankrupt? Can Congress force everyone to buy 100 stamps a month?

                    5. Would that not be the equivalent of taxing people in the amount of the stamps, then turning around and giving them free stamps? I suppose it could be done. In a sense, I am taxed for roads — forced to buy an undivided share of the roads — then given “free” roads to drive on.

                    6. Are you forced to pay $X dollars for X miles of road? No. You are forced to pay %X of your income for the privilege of earning a living. You are forced to pay $X per gallon of gas that you buy. These are indirect taxes. They are constitutional.

                      If you were forced to pay $X in “tax” for 100 stamps, then that would be a direct tax, which would be unconstitutional.

                    7. We cover this below. You’re mistaken about constitutionality and apportionment.

                    8. Would that not be the equivalent of taxing people in the amount of the stamps, then turning around and giving them free stamps?

                      Isn’t this exactly what Congress chose not to do? They could have levied a tax and then provided medical care to those without insurance, but they didn’t want to “raise taxes.”

                    9. No, it’s what they pretended not to do, even though they were really doing it.

                    10. I am distinguishing between the proverbial broccoli mandate and the actual insurance mandate — mandates that apply to passive citizens.

                      “Passive” in what sense? The OSHA mandates apply to people engaged in interstate commerce that has no connection to the mandate. The jurisdictional hook for them has nothing to do with safety equipment, but relies instead on their participation in interstate commerce that has nothing to do with safety equipment.

                      Conversely, everyone participates in interstate commerce in some way. If you can mandate the purchase of safety equipment just because someone participates in interstate commerce, why can’t you mandate the purchase of insurance or broccoli by everyone because everyone participates in interstate commerce?

                    11. You are making a stronger argument FOR the mandate than is even needed.

                      The opposition insists, and the supporters concede, that there must be somebody out there who is so disconnected from interstate commerce that they are not ‘hooked’ by participation, but are subject to the mandate all the same. If nobody fits that description and literally everybody is ‘hooked’ into interstate commerce by some level of participation, then the whole premise of the debate is false.

                    12. You are making a stronger argument FOR the mandate than is even needed.

                      Not at all. I am merely pointing out that your attempt at creating a limiting principle while saving the mandate is a complete failure. You have a choice to make:

                      (1) The mandate is Constitutional because Congress can mandate that anyone engaged in interstate commerce in any way can be ordered to buy stuff. IOW, no limiting principle at all.

                      (2) The mandate is Constitutional because Congress can impose mandates to buy stuff only if “necessary to keeping the product available on the regulated terms,” and the mandate meets this test. Unfortunately, much existing federal regulation does not.

                      So, choose. No limiting principle, or one that trashes entire volumes of the Federal Register?

                    13. You’re trashing the very premise of the conservatives’ broccoli mandate argument, which tries to distinguish between participation and non-participation in interstate commerce.

                    14. You’re trashing the very premise of the conservatives’ broccoli mandate argument, which tries to distinguish between participation and non-participation in interstate commerce.

                      Yeah, I’m not impressed with that particular line of argument.

                      Its an attempt to come up with a limiting principle that doesn’t sweep away big chunks of existing law. But I don’t think it works very well.

                      I’m not sure its possible to impose limits on the authority SCOTUS has already granted under the Commerce Clause, without sweeping away big chunks of current law.

                      You certainly failed.

                    15. The opposition insists, and the supporters concede, that there must be somebody out there who is so disconnected from interstate commerce that they are not ‘hooked’ by participation,

                      I think you are wrong about this. Nobody was arguing that there are people in the US who do not participate in interstate commerce at all. There was an argument (which went nowhere, because it was pointless) that there are some people who do not buy health care.

                      It was a muddled attempt to distinguish the mandate from other regulations, which apply by their terms to people engaged in certain markets. However, SCOTUS has never said that there had to be any connection between the way you engage in interstate commerce and the mandates that may be imposed on you, and attempting to construct a limiting principle on this basis would be disastrous for all concerned, so it was pretty much sidelined.

                    16. Except buying health insurance has dick to do with participating in the medical care market. Millions of people don’t buy health insurance and are thus not participating in the insurance market.

            3. In other words, the Commerce Clause authorizes the government to exercise totalitarian control over the entire economy.

              1. Hazel, the interstate commerce as-is allows “totalitarian control of the economy.” Striking down the individual mandate would only frustrate Obamacare’s peculiar, for-profit gloss on the Bismarck model of health insurance. It would do almost nothing to stop any other type of “government takeover” of healthcare, or of the whole economy, on Wickard-type rationales.

                1. Hazel, the interstate commerce as-is allows “totalitarian control of the economy.”

                  No, it doesn’t. As written, it is actually quite limited. However, the Supreme Court cases on the Commerce Clause do give the federal government plenary authority over all things economic, and this case forced the Court to deal with that.

                  1. Thus, the distinction between “as is” and “as written.”

                    “As written” necessitated the 18th Amendment for prohibition.

                    “As is” gave us Raich.

                2. Hazel, the interstate commerce as-is allows “totalitarian control of the economy.”

                  I think the Supreme Court might beg to differ with you.

                  1. Of course they would deny it, but it is still true.

                  2. We’ll find out, won’t we? Since Wickard, SCOTUS hasn’t really imposed any limits on Congress’s control over the economy.

                    That’s the challenge here. In order to avoid confessing that they have trashed the Constitutional scheme of limited enumerated powers, SCOTUS has to impose a limiting principle on the Commerce Clause. However, given the breadth of what they have already authorized, there is very little, if any, room for a limiting principle that doesn’t call into question big chunks of the post-Wickard line of cases.

                    1. Wickard will survive untouched, even if the whole law is struck down.

        3. Adverse selection only exists if you have community rating. If you let insurance ocmpanies charge according to risk there is no problem.

          1. There is the “problem” of high-risk people not being able to afford coverage, and that is a “problem” Congress has the prerogative of addressing by the most thorough means at its disposal.

            Just because it’s not a “problem” in your Objectivist loonysphere, “Hazel,” doesn’t mean the constitution enshrines your political preferences.

            1. Like the “problem” of people not having food is solved by forcing grocery stores to give it away for free.

              1. That’s not what Obamacare does. Insurance companies don’t have to charge lower prices to poorer people. They just have to charge everybody the same price, and the poor are supposed to get government subsidies to meet that price.

                The correct analogy would be to food stamps. Everybody pays the grocer the same price for a given item of food. Some poor people get extra funds from the government to meet that price.

                1. For someone who already has stage 3 cancer (a pre-existing condition!) , providing insurance at the same price as everyone else is effectively providing health care for free.

                  1. Right, but that gets passed onto the risk pool as an increased premium, and to the taxpayers funding the subsidies. It isn’t anything like making an individual grocer give free food to an individual customer.

                    Everybody pays the same price at the checkout. The taxpayers and the other policyholders are carrying the cancer victim.

                    1. Actually, it is. Because insurance is not healthcare itself.Everyone might pay the same price for the premium, but that does not mean they will be consuming the same amount of resources. It is a FACT that a person with stage 3 cancer is going to consume more than others.

                      It’s more like everyone being forced to pay the same price for a “food club” membership, even thought there are huge fat people who eat steak every day and tiny skinny vegetarians in the same pool. Yet you force the skinny vegetarians to pay the same price as the obese steak eaters.

                    2. It’s more like one of those CSAs where everybody gets a big box of produce. Some people will eat it all while others will throw most of it out.

                      The insurance company is a pass-through entity – managing claims and setting premiums to cover the policyholders’ losses. It doesn’t care who is a ‘good’ risk and who is a ‘bad’ risk unless it has to contend with adverse selection. For any given risk pool, an insurance company can set the price that covers the losses and yields a profit.

                      The stage 3 cancer patient isn’t getting any boon or windfall out of the pockets of the insurance company’s investors. The stage 3 cancer patient is getting a benefit from taxpayers and fellow policyholders, and the insurance company just takes a cut of the money as it changes hands.

                    3. No, when you buy a big box of produce and throw it away, you still get an actual product and choose to those it away.

                      By comparison people who pay for health insurace that is overpriced relative to their risk ultimately get NOTHING. You don’t “throw away” healthcare.

                      Moreover, those CSAs are voluntary. Nobody is being forced to buy a big box of food they won’t eat.

                      A more accurate analogy would be if evryone was forced to buy the box of food, including meat and dairy products, and then, if they didn’t eat it right away, it was consfiscated and given to someone else who would. Like the obese steak-eater.
                      But the skinny vegetarian still has to pay for it anyway. Eventhough the skinny vegetarian is never going to eat the meat and dairy in the box.

                      The stage 3 cancer patient is getting a benefit from taxpayers and fellow policyholders

                      Involuntary taxpayers, and involuntary policy holders. Who are being forced to pay extra, precisly so as to subsidize the stage 3 cancer patient’s treatment.

                    4. Hazel is confused about the mechanics of the insurance business. Hazel thinks that, at bottom, insurance companies provide payments for medical care in exchange for premiums. Hazel thinks that an insurance company is like an all-you-can-eat buffet, and it ‘wins’ if it attracts customers who are not that hungry, while it ‘loses’ if it attracts voracious eaters.

                      Wrong. Insurance companies deal in one basic product only: risk management. The price – the “premium” – for that product follows from how the risk pool is organized. High risk pool = high premiums but high losses. Low risk pool = low premiums but low losses. Profit margin is invariably going to be comparable in high and low risk pools.

                      Obamacare creates an “all-in” totally-average risk pool. The insurance companies can “price” this risk pool just as well as any other, higher or lower, and profit from it just as they could any other, higher or lower.

                      Are there winners and losers under Obamacare? Of course. Poor people who get government subsidies to pay the premiums are “winners.” Taxpayers give something up to them. People who develop “pre-existing conditions” stay covered and don’t get excluded from the risk pool. Healthier policyholders give something up to them. None of this is in the slightest bit more unfair than the fact that the government answers 911 calls from people who are too poor to pay taxes, or the fact that the government provides the same fire-truck protection to smokers and non-smokers alike.

    2. Let the record show that RAL! is in full agreement with Justice Scalia’s concurrence in Raich.

      WHich of the various related provisions is a regulation of interstate commerce which the mandate is necessary and proper to implement.

      Be careful. If you say “shall issue” is a regulation of interstate commerce, I will point out that shall issue laws exist at the state level, and have for years, without individual mandates, so its pretty clear that an individual mandate is not necessary for shall issue requirements.

      OK, go!

      1. Those state laws —- shall-issue minus individual-mandate —- have shrunk the number of insurers and increased premiums. Thus, the economic necessity of the federal individual mandate.

        1. So, why not reverse the state laws instead? To easy?

          1. Um, relevance?

            1. Nice response. About what I expected.

              1. I’m serious. What’s the relevance?

                Are you trying to say that the individual mandate is not “necessary” because congress has the option of not extending insurance coverage to those presently insured?

                1. …presently uninsured, rather?

                2. It’s necessary… sort of in the same way that forcing people to work on collective farms at the point of a gun was “necessary” to produce food in a centralized economy like the USSR.

        2. Those state laws —- shall-issue minus individual-mandate —- have shrunk the number of insurers and increased premiums. Thus, the economic necessity of the federal individual mandate.

          Damn counter-revolutionaries! How dare people act according to their financial incentives! Why can’t they obey and behave like new socialist men like they’re supposed to?

    3. I guess this makes RAL an Order Muppet instead of a Chaos Muppet.

  8. Also, the SCOTUS could avoid the interstate-commerce clause debate altogether by recognizing that
    the individual mandate, objectively, is nothing but a straight-up 16th Amendment tax no matter what the liars and mountebanks in congress said while debating the legislation.

    Money quote:

    “Critics of the law say that endorsing the mandate as a tax would allow the law’s sponsors to escape political accountability. I still don’t understand when the Supreme Court’s job description grew to include fact-checking political debates.”

    Bang!
    Dead.
    Floor.
    Now put quarters on his eyes and throw a sheet over him.

    1. Quarters? Better make it Krugerrands.

    2. Please explain how requiring someone to buy health insurance from a private company is a tax.

      1. Even Ginsburg knew the tax argument was dead-dang stupid. To paraphrase her, how can it be a tax when th e ideal state, from the administration’s point of view, is that it never collects a dime of tax?

        1. Exact same thing could be said of any cigarette tax, or the $200 federal transfer tax on machine guns.

          1. You think that when they put a tax on cigarettes they actually want people to stop smoking and stop paying the tax? You can’t be that gullible.

            1. I don’t know what the “actual” is. Different legislators probably had different hopes when they passed the cigarette tax. Some wanted revenue. Others wanted more non-smokers.

              The larger point remains: taxes can be used to discourage behavior rather than raise revenue.

              1. If they want to prevent people from smoking, then raise the “tax” to $1000 a pack. Why fart around? The purpose is to raise revenue.

                1. Well, that’s what they did with the federal transfer tax: $200.00 if you want to buy a five dollar silencer for your target pistol.

                  1. Pish. The silencer for my M1A is gonna cost me a grand. A $200 tax isn’t going to keep me from getting it.

                    1. But it would be the same tax if it was a $5 silencer.

                    2. And yet there are people still buying and selling silencers.

                    3. Not many of the cheap ones.

                    4. You can’t even buy the metal for a sound suppressor for $5, much less the machining and overhead costs.

                    5. Cool. You finally decided on one? Which make/model if I may ask?

    3. I like this retarded quote:

      And even the word “requirement” is a little misleading. Failure to comply with the mandate brings no criminal consequences, as the Solicitor General confirmed explicitly during the oral arguments. In fact, defying the mandate brings virtually no consequences at all. If you don’t get insurance and refuse to pay the fee, the government’s only recourse is to withhold future tax income rebates, if you happen to be eligible for any.

      Uh, that’s called a fine. Also known as a criminal penalty.

      1. Civil fines and criminal fines can be collected by means other than tax rebate witholding.

        If tax rebate witholding is the only collection mechanism, it’s a tax.

        1. A tax rebate is when you get back the excess money that they took from you over the course of the year. As in, that’s money that wasn’t part of a tax. When they take that money from you, it’s now a fine. If they want to call it a tax, then that would be part of everyone’s tax bill. They could have raised everyone’s tax rate and then offered a deduction for having health insurance, but they chose not to do that. If they just keep your rebate (that wasn’t part of your tax) then that’s a fine.

          1. Also, if it’s a certain amount and not a percentage of your income, and it wasn’t taken as a function of your earning income, then it’s a direct tax and that’s unconstitutional. So, either it’s a fine, or an unconstitutional direct tax.

            1. A direct tax isn’t unconstitutional; it just has to be “in proportion to the Census,” whatever that means. The remedy would be to distribute the revenues by the requisite ‘apportionment.’ See 16th Am.

              1. No, the tax has to be apportioned by population, not the fucking revenue.

                What you propose would be an unapportioned direct tax.

                1. Unless you want to call it a fine.

                2. I think you’re mistaken. A direct tax applies to the individual. The only “apportionment” could be done with the revenues once collected from the individuals.

                  1. No. The taxes are to be apportioned according to population. Unless you think this law professor wrote this entire book under a false assumption.

                    http://www.utexas.edu/law/facu…..ecttax.pdf

                    1. The article you link indicates that a “head tax” — one applying to each person — does not raise an apportionment problem. The individual mandate is just such a tax, is it not?

                    2. The premise of the paper is to say that the apportionment provision is difficult to work out, making it absurd and a “foul-up.” It’s a completely pro-tax paper. The thesis seems to be that the feds should be able to tax anything however they like. He’s saying that a capitation tax would be less absurd as far as apportionment is concerned, but that no one likes it. There should be direct taxes on land and such, but the apportionment requirement makes it unworkable. But the individual mandate is not a tax.

    4. I still don’t understand when the Supreme Court’s job description grew to include fact-checking political debates disregarding the statute as written and declaring that, because a different statute would be Constitutional, so is the one they are considering

      1. Can congress thus write a law that says that a tax is not a tax but a penalty, and thus escape limits on the taxing power? Could Article I Section 7 first clause (“All bills for raising revenue shall originate in the House of Representatives”) be evaded merely by having the Senate originate tax bills that label the taxes as penalties?

        1. Seeing as penalties may not be imposed without due process, I’d be interested to see a tax disguised as a penalty.

          1. It’s interesting that you would be interested in that, but not relevant to the subject.

            1. I think you are missing my point, again.

              I’m saying you can’t disguise a tax as a penalty, because taxes can be imposed without due process, but penalties cannot.

        2. and thus escape limits on the taxing power

          The limits of tax power are less limiting then a penalty.

          That is why Obama tried telling the courts that it was a tax….after he sold it politically as not a tax.

          1. Exactly. He “sold it politically.” And how he sold it politically is not relevant to the legal categorization.

            1. What is relevant to the legal categorization is the statute. Which is quite clear that this is not a tax.

            2. But he argued in Court that it was a tax…

              He did that for a reason. And the reason was that he thought calling it a tax would save it. It did not.

              The fact that it is a penalty hurts his case…it does not help it.

              Why are you being so obtuse.

              What I am telling you (RC is telling you as well) is that this sentence you wrote:

              Can congress thus write a law that says that a tax is not a tax but a penalty, and thus escape limits on the taxing power?

              is nonsensical.

              The tax power is not as constitutionally limited as a penalty is.

              Earth to Registration At Last!

              !!!DO YOU UNDERSTAND?!!!

              1. No, I really don’t. If congress said “buy insurance or you will have to pay a 10% penalty on your taxable income, but this is NOT A TAX,” would that make it ‘not a tax?’ I say Nyet.

                1. That would have been a tax deduction for buying insurance, much like there is a tax deduction for having a mortgage or having kids. Why the hell didn’t they do that? Because Obama “promised” he wouldn’t raise taxes on the middle class and offering a new deduction without a tax increase would have decreased revenue. Anyway, effectively we have federal mandates to get a mortgage and have kids if you want to look at it that way.

                2. Well, sure, if you disregard the clear terms of the statute, you can reach any conclusion you want.

  9. I sense great fear in you, great anger. The hate is swelling in you now. Pick up your SCOTUS weapon. Use it. Strike me down with all of your hatred.

  10. It’ll be a big, expensive, technocratic mess ? in other words, a lot like it is already.

    Congressional heaven.

  11. Uruguay to sell marijuana:
    http://www.boston.com/news/wor…..ed_buyers/

    1. There are no laws against marijuana use in Uruguay. Possession of the drug for personal use has never been criminalized…

      Did not know that.

  12. It doesn’t surprise me that another journalist has joined the consensus opinion of the mass media as driven by Jeff Toobin at CNN, Intrade and other prognosticators that the individual mandate is dead. I again caution everyone, particularly those putting down money on a 75% probability of a dead mandate on Intrade that most legal scholars agree on one point–the past has shown time and again that you can’t read anything into SCOTUS questioning at hearings…..also note those of you following the consensus opinion of the mass media that a recent survey on Yahoo News of legal experts shows more like a 57% probability of mandate being overturned not the 74% on Intrade. I would argue we know nothing at this point based on SCOTUS hearings and probability of mandate being cleaved is 50-50. Mandate may ultimately be cleaved but the press/media coverage on this important topic has been terrible–not balanced and not warning people that you shouldn’t read anything into those hearings.

  13. Obamacare will be pulled out by the roots!

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