Discussion:
Predictions: SCOTUS on Health Care Reform Law
(too old to reply)
Elle
2012-01-27 04:31:14 UTC
Permalink
SCOTUS is hearing a challenge to the Affordable Care Act (a.k.a.
"ObamaCare") soon. Specifically, SCOTUS hears arguments on Monday
March 26th over whether court action is premature, because no one yet
has paid a fine for not participating in the overhaul. Tuesday's
arguments will be over whether Congress overstepped its authority with
the law. Finally, on Wednesday justices will hear whether the rest of
the law can take effect even if the health insurance mandate is
unconstitutional.

I predict the Court will preserve the law by at least a 6-3 majority,
though on differing grounds. Evidence for my position appears below.

I would be interested in reading others' opinions on how this case
will go. I am not a lawyer.

Evidence:
Three conservative appeals court judges have already opposed the
position of opponents of the ACA. Laurence Silberman (appointed by
Reagan) upheld the ACA. His conservative colleague Brett Kavanaugh
(appointed by Bush II in 2006) flatly refused to consider the
constitutional arguments, writing that jurisdiction was the problem:
Not until the law took effect and someone objected to taxes imposed by
it could the law's constitutional merits be considered. (Kavanaugh's
opinion starts on page 39 of the November 8, 2011 appeals court's
decision. Judge Kavanaugh wrote that the earliest a tax lawsuit could
be brought is 2015. The judge railed about the importance of not
undermining tax law with this case. On jurisdiction grounds for the
present, he vehemently refused to vote to throw the law out.)

Conservative judge Jeffrey Sutton (appointed by Bush II in 2001) also
ruled to uphold the ACA.

Yale Law School Professor Linda Greenhouse has opined that she
believes SCOTUS will uphold the law. She has not provided a nose
count.

SCOTUS on Jan. 23, 2012 ruled unanimously that the police violated the
4th Amendment when they placed a Global Positioning System tracking
device on a suspect=92s car and monitored its movements for 28 days.
Scalia, Thomas, Sotomayor, Kennedy and Roberts took one stance.
Ginsburg, Breyer, Alito and Kagan took a somewhat different stance.
But all nine opined the use of GPS, without a warrant, here was
illegal. (The police had a warrant for ten days to use the GPS, but
the warrant had expired by the time the police placed the GPS.) Some
of the liberal commenters on the NY Times site are having conniptions,
incredulous at the lineup of the Justices.
A Michigan Attorney
2012-01-27 15:50:14 UTC
Permalink
You can't draw any reliable conclusions about the health care
case rom the GPS case. The constitutional underpinnings are
vastly different.

IMHO, the most likely result is that lower opinions on the merits
of the claims will be vacated because the issues aren't ripe for
review.
Dick Adams
2012-01-27 16:19:01 UTC
Permalink
Post by Elle
SCOTUS is hearing a challenge to the Affordable Care Act (a.k.a.
"ObamaCare") soon. Specifically, SCOTUS hears arguments on Monday
March 26th over whether court action is premature, because no one
yet as paid a fine for not participating in the overhaul. Tuesday's
arguments will be over whether Congress overstepped its authority
with the law. Finally, on Wednesday justices will hear whether
the rest of the law can take effect even if the health insurance
mandate is unconstitutional.
I predict the Court will preserve the law by at least a 6-3
majority though on differing grounds. ....
Predicting a decision by "Johnny and the Supremes" is like
a bird with one wing and bird with two wings. It's all a
matter of a pinion.

My prognostication is a 5-4 decision - one way or the other.

I also predict that if a new Constitutional Convention were
to be held, the 10th amendment would end with the following
sentence: "And this time we mean it."
Elle
2012-01-29 23:18:12 UTC
Permalink
Post by A Michigan Attorney
You can't draw any reliable conclusions about the health care
case rom the GPS case. The constitutional underpinnings are
vastly different.
I mentioned the GPS, fourth amendment case because some liberals were
surprised to see the so-called SCOTUS conservatives vote as they did.
Many liberals are similarly insisting that the SCOTUS conservatives
will throw out the Affordable Care Act. (Bush v. Gore, and how the
world will never be the same because of it, gets repeated a lot in the
NY Times comments sections whenever SCOTUS is the focus of an
article.) I do not think this is so, at least not for all the SCOTUS
conservatives.
Post by A Michigan Attorney
IMHO, the most likely result is that lower opinions on the merits
of the claims will be vacated because the issues aren't ripe for
review.
Noted.
Rich Carreiro
2012-01-30 04:01:33 UTC
Permalink
Post by Elle
I mentioned the GPS, fourth amendment case because some liberals were
surprised to see the so-called SCOTUS conservatives vote as they did.
Many liberals are similarly insisting that the SCOTUS conservatives
will throw out the Affordable Care Act. (Bush v. Gore, and how the
I'm not saying it applies to the Obamacare case, but in
many, many cases (especially criminal procedure ones)
the relevant divide in SCOTUS isn't between liberals
and conservatives (despite what partisan hacks like
would have you believe) -- it's between the pragmatists
and the formalists. Each of those wings spans the
Court's liberal/conservative axis and thus explains
many of the opinion lineups that the hacks of the world
describe as "surprising".

--
Rich Carreiro rlc-***@rlcarr.com
deadrat
2012-01-30 05:34:57 UTC
Permalink
Post by Rich Carreiro
Post by Elle
I mentioned the GPS, fourth amendment case because some liberals were
surprised to see the so-called SCOTUS conservatives vote as they did.
Many liberals are similarly insisting that the SCOTUS conservatives
will throw out the Affordable Care Act. (Bush v. Gore, and how the
I'm not saying it applies to the Obamacare case, but in
many, many cases (especially criminal procedure ones)
the relevant divide in SCOTUS isn't between liberals
and conservatives (despite what partisan hacks like
would have you believe) -- it's between the pragmatists
and the formalists. Each of those wings spans the
Court's liberal/conservative axis and thus explains
many of the opinion lineups that the hacks of the world
describe as "surprising".
But in Bush v Gore, five of the Justices who are usually
formalists on issues of states rights, switched to become
pragmatists for their own political persuasion. So pragmatic,
in fact, that the decision carried its own "good-for-one-use"
warning. Given how politicized health care reform has become,
it's no wonder that prognosticators are hedging their bets.
Mark A
2012-01-31 03:02:10 UTC
Permalink
But in Bush v Gore, five of the Justices who are usually formalists on
issues of states rights, switched to become pragmatists for their own
political persuasion. So pragmatic, in fact, that the decision carried
its own "good-for-one-use" warning. Given how politicized health care
reform has become, it's no wonder that prognosticators are hedging their
bets.
Contrary to popular mythology, Bush v Gore was decided
in favor Bush by a 7-2 vote on whether to overturn the
Florida Supreme Court (as to whether it was OK to
recount only some counties, or only some precincts in
some counties, and not recounting all of them).

The US Supreme Court decided 5-4 that it was too late
for a full recount, based on US Law regarding safe
harbor provision for getting the electors decided by
a certain date to avoid them being challenged. So in
that respect, it could be argued that they were
upholding the right of a state to choose their electors,
rather than have the US Congress decide which electors
would be used if Florida had missed the safe harbor
deadline.
deadrat
2012-02-02 19:51:21 UTC
Permalink
Post by Mark A
But in Bush v Gore, five of the Justices who are usually formalists on
issues of states rights, switched to become pragmatists for their own
political persuasion. So pragmatic, in fact, that the decision carried
its own "good-for-one-use" warning. Given how politicized health care
reform has become, it's no wonder that prognosticators are hedging their
bets.
Contrary to popular mythology, Bush v Gore was decided
in favor Bush by a 7-2 vote on whether to overturn the
Florida Supreme Court (as to whether it was OK to
recount only some counties, or only some precincts in
some counties, and not recounting all of them).
The US Supreme Court decided 5-4 that it was too late
for a full recount, based on US Law regarding safe
harbor provision for getting the electors decided by
a certain date to avoid them being challenged. So in
that respect, it could be argued that they were
upholding the right of a state to choose their electors,
rather than have the US Congress decide which electors
would be used if Florida had missed the safe harbor
deadline.
I guess it depends on whose ox is gored (ha!)

The safe harbor provision is a creature of Congress, not
the Constitution. It could be argued that the 5 "
pragmatists" were protecting Florida's right to sail into
the safe harbor. But I'm sure I couldn't do it with a
straight face. Why isn't it up to Florida to determine
whether to play it safe or not? And in any case, I don't
think anything in 3USC5 stops Congress from objecting to
electors via 3USC15.
Hank Youngerman
2012-02-02 19:55:58 UTC
Permalink
Post by Elle
SCOTUS is hearing a challenge to the Affordable Care Act (a.k.a.
"ObamaCare") soon. Specifically, SCOTUS hears arguments on Monday
March 26th over whether court action is premature, because no one yet
has paid a fine for not participating in the overhaul. Tuesday's
arguments will be over whether Congress overstepped its authority with
the law. Finally, on Wednesday justices will hear whether the rest of
the law can take effect even if the health insurance mandate is
unconstitutional.
I predict the Court will preserve the law by at least a 6-3 majority,
though on differing grounds. Evidence for my position appears below.
I would be interested in reading others' opinions on how this case
will go. I am not a lawyer.
Three conservative appeals court judges have already opposed the
position of opponents of the ACA. Laurence Silberman (appointed by
Reagan) upheld the ACA. His conservative colleague Brett Kavanaugh
(appointed by Bush II in 2006) flatly refused to consider the
Not until the law took effect and someone objected to taxes imposed by
it could the law's constitutional merits be considered. (Kavanaugh's
opinion starts on page 39 of the November 8, 2011 appeals court's
decision. Judge Kavanaugh wrote that the earliest a tax lawsuit could
be brought is 2015. The judge railed about the importance of not
undermining tax law with this case. On jurisdiction grounds for the
present, he vehemently refused to vote to throw the law out.)
Conservative judge Jeffrey Sutton (appointed by Bush II in 2001) also
ruled to uphold the ACA.
Yale Law School Professor Linda Greenhouse has opined that she
believes SCOTUS will uphold the law. She has not provided a nose
count.
SCOTUS on Jan. 23, 2012 ruled unanimously that the police violated the
4th Amendment when they placed a Global Positioning System tracking
device on a suspect=3D92s car and monitored its movements for 28 days.
Scalia, Thomas, Sotomayor, Kennedy and Roberts took one stance.
Ginsburg, Breyer, Alito and Kagan took a somewhat different stance.
But all nine opined the use of GPS, without a warrant, here was
illegal. (The police had a warrant for ten days to use the GPS, but
the warrant had expired by the time the police placed the GPS.) Some
of the liberal commenters on the NY Times site are having conniptions,
incredulous at the lineup of the Justices.
The INTRADE prediction market is making the odds 36% that
SCOTUS will declare the individual mandate unconstitutional
by Dec. 31 2012. I don't think I would take odds against
that one way or the other. I don't pretend to understand
all the subtle constitutional issues, and there are further
issues of juristdiction. For a non-lawyer like me, I guess
I have to look to where they've drawn the line on the commerce
clause. They said that carrying a gun near a school is an
overreach, but minimum wage et. al. are not. This case seems
much closer to minimum wage than carrying a gun near a school.
It does seem clear that someone else's decision not to
purchase health insurance in another state does, in practice,
impact me in my state. But could you argue that a "lesser
rememdy" would be for this other phantom state to simply say
"We won't pay for uncompensated care so that Hank in North
Carolina is spared the cost?" I guess we need to ask the
people in the audience at the Republican debate who cheered
when it was suggested an uninsured person should be allowed
to die on the hospital floor. They might have an opinion on
the matter.
Elle
2012-02-04 15:12:11 UTC
Permalink
Post by Hank Youngerman
The INTRADE prediction market is making the odds 36% that
SCOTUS will declare the individual mandate unconstitutional
by Dec. 31 2012.
What's the past record of INTRADE for predicting Supreme Court
decisions in the past?

For me, this is not gambling fun. As an exercise, taking the average
of the opinions of many attorneys who have studied this case should
yield one of the better guesses as to how the Justices will actually
vote.
deadrat
2012-02-04 15:23:42 UTC
Permalink
Post by Hank Youngerman
Post by Elle
SCOTUS is hearing a challenge to the Affordable Care Act (a.k.a.
"ObamaCare") soon. Specifically, SCOTUS hears arguments on Monday
March 26th over whether court action is premature, because no one yet
has paid a fine for not participating in the overhaul. Tuesday's
arguments will be over whether Congress overstepped its authority with
the law. Finally, on Wednesday justices will hear whether the rest of
the law can take effect even if the health insurance mandate is
unconstitutional.
<snip/>
Post by Hank Youngerman
The INTRADE prediction market is making the odds 36% that
SCOTUS will declare the individual mandate unconstitutional
by Dec. 31 2012. I don't think I would take odds against
that one way or the other. I don't pretend to understand
all the subtle constitutional issues, and there are further
issues of juristdiction. For a non-lawyer like me, I guess
I have to look to where they've drawn the line on the commerce
clause. They said that carrying a gun near a school is an
overreach, but minimum wage et. al. are not. This case seems
much closer to minimum wage than carrying a gun near a school.
It does seem clear that someone else's decision not to
purchase health insurance in another state does, in practice,
impact me in my state. But could you argue that a "lesser
rememdy" would be for this other phantom state to simply say
"We won't pay for uncompensated care so that Hank in North
Carolina is spared the cost?" I guess we need to ask the
people in the audience at the Republican debate who cheered
when it was suggested an uninsured person should be allowed
to die on the hospital floor. They might have an opinion on
the matter.
Many of the challenges to the ACA have foundered on the question of standing, i.e.,
the plaintiffs could show no injury so there was no real
dispute for the court to adjudicate. The AG of Florida, however, got
the judge for the Northern District of Florida to overturn the entire
law. The gov appealed to the 11th Circuit, which found only the
individual mandate unconstitutional and let the rest of the law stand.

The 5th Circuit and the DC Court of Appeals have upheld the law.
SCOTUS has agreed to hear the appeal from the 11th Circuit. If you
believe that the Justices will make a decision based on the law, there
are several things to look for. The first is whether Congress is acting
within the guidelines of the commerce clause. The Court has ruled
that the activity in question must itself be (essentially) commerce.
That's why carrying a gun near a school doesn't qualify (US v. Lopez
514US549 (1995). Presumably operating a gun store near a school
would, but merely carrying a gun isn't a commercial transaction.

The Court also struck down a law that allowed women to sue their
rapists in federal court (US v Morrison, 529US598 (2000)). Briefs in
favor outlined in detail the affect of rape on interstate commerce,
but the Court ruled that rape didn't qualify. Presumably the rape of
prostitutes would. Both of these decisions was 5-4. I don't think
that anyone seriously contends that buying health insurance isn't a
commercial act within the scope of the commerce clause. But see
the "non-activity" argument below.

Next you have to consider whether the action is question rises to a
level that actually affects commerce, and in that the courts are
guided by Wickard v Filburn 372US111 (1942), a case involving
limits on the growing of wheat. Filburn grew more wheat than
allowed under the Agricultural Adjustment Act of 1938 but
claimed that his few bushels couldn't affect interstate commerce.
The Court ruled that the analysis of effect had to be made not by
considering just Filburn's activities but by examining what would
happen if every wheat grower acted like Filburn. The decision was
unanimous, and ever since, the Court has usually taken every
opportunity to expand Congressional power under the commerce
clause, culminating in Gonzales v Raich (545US1 (2005)), allowing
the feds to outlaw growing marijuana for medical purposes. The
amount of ganja in question was tiny, even summing over everyone
in the same medical condition as the plaintiffs grew their own, but it
was enough just to have the likelihood that rising dope prices might
draw the plaintiff's dope into interstate drug traffic.

Many of the suits make the claim that Congress can control only
economic activity, not economic non-activity, which the ACA is said
to attempt by regulating the refusal to buy insurance. The Florida
judge bought this argument, even though Filburn found the
commerce clause controlled his not selling wheat on the open
market and Raich found the same for his not selling marijuana in
(even) intrastate commerce.

The last thing to look for is whether the refusal to comply with the
ACA incurs a fine or just an additional tax. The courts have given
Congress a very large scope of action when it comes to taxation.
RichD
2012-02-16 08:22:58 UTC
Permalink
Post by Elle
SCOTUS is hearing a challenge to the Affordable Care Act (a.k.a.
"ObamaCare") soon. Specifically, SCOTUS hears arguments on
March 26th over whether court action is premature, because
no one yet has paid a fine for not participating in the overhaul.
Tuesday's arguments will be over whether Congress
overstepped its authority with the law. Finally, on Wednesday
justices will hear whether the rest of the law can take effect
even if the health insurance mandate is unconstitutional.
I predict the Court will preserve the law by at least a 6-3 majority,
though on differing grounds. Evidence for my position appears
below.
I would be interested in reading others' opinions on how
this case will go.
http://tinyurl.com/wsj-obamacare-1

http://tinyurl.com/wsj-obamacare-2


Their arguments look strong to me.
What are the counter-arguments?
--
RIch
Dick Adams
2012-02-16 11:41:52 UTC
Permalink
Post by RichD
Post by Elle
SCOTUS is hearing a challenge to the Affordable Care Act (a.k.a.
"ObamaCare") soon. Specifically, SCOTUS hears arguments on
March 26th over whether court action is premature, because
no one yet has paid a fine for not participating in the overhaul.
Tuesday's arguments will be over whether Congress
overstepped its authority with the law. Finally, on Wednesday
justices will hear whether the rest of the law can take effect
even if the health insurance mandate is unconstitutional.
I predict the Court will preserve the law by at least a 6-3
majority, though on differing grounds. Evidence for my position
appears below.
I would be interested in reading others' opinions on how
this case will go.
Appartenly Elle's cites were snipped - so I have not read them.
My count of the noses of pro and con ObamaCare is
Breyer Pro Roberts Con
Sotomayer Pro Scalia Con
Kagan Pro Thomas Con
Alito Con
Ginsberg Swing Vote




So I have it as 3 in favor and 4 against with two swing votes.

In my opinion, Justice Ginsburg is not a "party line" Justice.
As for Justice Kennedy, he is the ultimate "swing voter"
Post by RichD
http://tinyurl.com/wsj-obamacare-1
And it states in summary:
"If ObamaCare is to be upheld, then the Supreme Court will
have to abandon these precedents, along with the plain meaning
of the Constitution. It will also have to concede that our
federal system is in fact not one of divided authority between
federal and state governments, but one in which the states
merely act as Washington's administrative enforcers. There is
every reason to believe the court would never entertain such a
notion.
Post by RichD
http://tinyurl.com/wsj-obamacare-2
And it states in its last paragraph:
"Overall, the Supreme Court's agreement to review ObamaCare's
constitutionality probably sounds that law's death knell."

Disclosure:
The above articles were written by two lawyers who served
in the Justice Department during the Reagan and GHW Bush
Aministrations. They represented the 26 states in their
challenge to ObamaCare before the trial and appellate courts.
Barry Gold
2012-02-17 14:50:38 UTC
Permalink
Post by RichD
http://tinyurl.com/wsj-obamacare-1
http://tinyurl.com/wsj-obamacare-2
Their arguments look strong to me.
What are the counter-arguments?
Well, AFAIK the main counter arguments are:

1. Congress has the power to regulate "commerce among the several
states". The courts have repeatedly said that includes the power to
regulate things that directly affect interstate commerce, as well as
commerce _intrastate_ commerce that could indirectly affect interstate
commerce.

The whole health insurance thing affects Interstate Commerce in several
ways:
a) About half the country gets insurance through their employer,
hence Congress can regulate (and mandate) it because it affects nearly
every employer with offices/outlets in more than one state.
b) People who get sick and don't have insurance get treated at
hospitals, and the treatment they don't pay for affects multi-state
corporations that own & run hospitals.
c) Health insurance is itself an interstate concern: most of the
providers of health insurance sell it across state lines. People who do
not buy health insurance because they are currently well drive up the
price for people with less perfect health histories -- the fewer people
the cost is spread among, the more each covered person must pay.
d) If you do not buy health insurance, you must pay a tax. Another
way of looking at it is, everybody is taxed a certain amount to cover
medical treatment should it be needed. Those who buy their own
insurance get a discount on this tax. (A 100% discount, but still a
discount) How does this differ from the government allowing you to
deduct certain expenses from your income tax. Some are "deductions",
which means they are worth only x% of what you spent (x% being your
marginal tax rate). Others are tax credits: you get 100% of what you
spent, up to some limit.

Now... those are the legal arguments. One final note: David B. Rivkin
is a _conservative_ commentator, and the Wall Street Journal is owned by
News Corporation, which in turn is owned by Rupert Murdoch, a noted
conservative. It is, perhaps, not surprising that they would think the
universal health insurance plan is unconstitutional.
John Levine
2012-02-19 03:06:50 UTC
Permalink
Post by RichD
What are the counter-arguments?
The main issue seems to me to be whether you believe
it's possible to opt out of the entire US health care system.

Let's say you mail in the form saying you opt out of
insurance. The next morning you wake up with chest
pains, and it turns out that you need three stints
installed, an operation that costs about $80,000.
You don't have $80,000. Now what?

If the answer is anything other than "you die", someone's
going to pay for the healthcare you get, so you didn't really
opt out.

So far, I haven't met many people, even on the far right,
who are willing to go that far. Typically they wave their
hands and assert the existence of "free" care, or maybe
that doctors will treat you out of the goodness of their
hearts, none of which seems plausible to me.

An interesting result would be if the court decided the
parts of the law were separable, so they voided the
requirement to buy insurance, but left the rest in place.
Now, in the scenario above, since the must-issue rules
are still in place, you can buy insurance as you arrive
at the hospital. Insurance companies won't like that.


R's,
John

PS: With respect to the WSJ, remember that their
editorial page is amazingly reliable. Everything
they say is wrong. Dow 36,000, anyone?
--
Regards,
John Levine, ***@iecc.com,
Primary Perpetrator of "The Internet for Dummies",
Please consider the environment before reading this e-mail.
http://jl.ly
Elle
2012-02-17 14:52:14 UTC
Permalink
Post by Dick Adams
Post by RichD
Post by Elle
SCOTUS is hearing a challenge to the Affordable Care Act (a.k.a.
"ObamaCare") soon. Specifically, SCOTUS hears arguments on
March 26th over whether court action is premature, because
no one yet has paid a fine for not participating in the overhaul.
Tuesday's arguments will be over whether Congress
overstepped its authority with the law. Finally, on Wednesday
justices will hear whether the rest of the law can take effect
even if the health insurance mandate is unconstitutional.
http://tinyurl.com/wsj-obamacare-1
If ObamaCare is to be upheld, then the Supreme Court will
have to abandon these precedents, along with the plain meaning
of the Constitution."
As Dick Adams points out, the authors of the tinyurl citations are
lawyers for the plaintiffs in this suit. For these lawyers to advocate
publicly opposite the position of their clients would violate the
Rules of Professional Conduct for attorneys. I cannot appreciate these
citations much. Still, for the moment, let's set aside the interests
of these authors and consider some of what they wrote. The authors
write: "[T]he individual mandate does not regulate commerce,
interstate or otherwise... " and so it is unconstitutional.

I spoke of federal appeals court Judge Silberman upholding the ACA as
one reason why I think this will be decided by at least 6-3, in favor
of the ACA being constitutional. Judge Silberman's opinion relies
largely on a 1942 SCOTUS case, Wickard v. Filburn, 317 U.S. 111. Judge
Silberman wrote:

---starting on page 30 of 37 pages--
[In Wickard v. Filburn], a farmer ran afoul of his allowed wheat
acreage under the Agricultural Adjustment Act of 1938 by growing
additional wheat, not for sale, but to feed his family and his
livestock. Filburn argued that the Act was unconstitutional as applied
to him because he was not using the excess wheat for any activity in
the interstate market. The Supreme Court unanimously rejected this
claim. It held that even growing wheat for personal consumption, not
for sale in any market, could affect the national price, and therefore
was within Congress=92s commerce power. Id. at 127-28. This conclusion
was not only because his wheat might be diverted into the national
market, as was recognized in Gonzales v. Raich, 545 U.S. 1, 18-19
(2005). Justice Jackson said even =93if we assume that it is never
marketed, it supplies a need of the man who grew it which would
otherwise be reflected by purchases in the open
market. Home-grown wheat in this sense competes with wheat
in commerce. The stimulation of commerce is a use of the regulatory
function quite as definitely as prohibitions or
restrictions thereon.=94 Wickard, 317 U.S. at 128 (emphasis
added). Justice Jackson thus recognized that the Act =93force[d]
some farmers into the market to buy what they could provide for
themselves.=94 Id. at 129. Although a regulation limited the size
of the farms covered, the logic of the opinion would apply to
force any farmer, no matter how small, into buying wheat in the
open market. See Raich, 545 U.S. at 20. Wickard, therefore,
comes very close to authorizing a mandate similar to ours, at least
indirectly, and the farmer=92s =93activity=94 could be as incidental to the
regulation as simply owning a farm.
---

The full opinion may be read at http://thinkprogress.org/wp-content/upload=
s/2011/11/DC-aca-opinion.pdf,
among other web sites.

Given Wickard, it would seem that, if the Court rules the way the
tinyurl's authors want the Court to rule, other precedents would have
to be abandoned.

I do not think it is as simple as Rivkin and Casey pretend it is, even
if they are only permitted a few column inches to make their case.
Post by Dick Adams
=A0 "Overall, the Supreme Court's agreement to review ObamaCare's
constitutionality probably sounds that law's death knell."
Oh for goodness sake. Judge Silberman wrote in his opinion exactly one
week before the second tinyurl article that this case would "almost
surely be decided by the Supreme Court." The tinyurl authors are
staging a public relations campaign. Well, all's fair, I suppose.

On the third hand, and for fun, I see that Judge Silberman has accused
NY Times columnist and law professor Greenhouse (see my original post)
of the same. Judge Silberman in a speech in 1992:

---
The judge had the harshest words for The New York Times, saying, "It
seems that the primary objective of The Times's legal reporters is to
put activist heat on recently appointed Supreme Court justices."

The judge said some had referred to this as the "Greenhouse effect," a
reference to Linda Greenhouse, The Times's Supreme Court reporter. ...
---

Silberman and Greenhouse do agree on the Affordable Care Act.
RichD
2012-02-19 03:12:43 UTC
Permalink
Post by Barry Gold
Post by RichD
http://tinyurl.com/wsj-obamacare-1
http://tinyurl.com/wsj-obamacare-2
Their arguments look strong to me.
What are the counter-arguments?
1. Congress has the power to regulate "commerce
among the several states". The courts have repeatedly
said that includes the power to regulate things that
directly affect interstate commerce, as well as commerce
_intrastate_ commerce that could indirectly affect
interstate commerce.
The whole health insurance thing affects Interstate
"It depends on what the meaning of 'is' is."
- W. J. Clinton

What does 'regulate' mean? Nothing, anything,
everything?

PS The same word appears in a different context,
elsewhere in the document, which has likewise
caused much consternation -
Post by Barry Gold
People who do not buy health insurance because they
are currently well drive up the price for people with
less perfect health histories -- the fewer people the
cost is spread among, the more each covered
person must pay.
This statement, taken purely as economics, is inane;
it might, but doesn't, apply to ANYTHING whatever.
Replace 'health insurance' with X -

--
Rich
Stuart A. Bronstein
2012-02-22 21:21:21 UTC
Permalink
Post by RichD
Post by Barry Gold
People who do not buy health insurance because they
are currently well drive up the price for people with
less perfect health histories -- the fewer people the
cost is spread among, the more each covered
person must pay.
This statement, taken purely as economics, is inane;
it might, but doesn't, apply to ANYTHING whatever.
Replace 'health insurance' with X -
Are you kidding??? Have you ever priced insurance
for groups? The larger the group the lower the cost.
The larger the group the lower the over-all risk.

--
Stu
http://DownToEarthLawyer.com
micky
2012-03-07 01:56:27 UTC
Permalink
Post by Stuart A. Bronstein
Post by RichD
Post by Barry Gold
People who do not buy health insurance because they
are currently well drive up the price for people with
less perfect health histories -- the fewer people the
cost is spread among, the more each covered
person must pay.
This statement, taken purely as economics, is inane;
it might, but doesn't, apply to ANYTHING whatever.
Replace 'health insurance' with X -
Are you kidding??? Have you ever priced insurance
for groups? The larger the group the lower the cost.
The larger the group the lower the over-all risk.
I hope my first reply has appeared already, but this
one is more valuable.

I asked about this in sci.math. At the bottom should
be enough info to find the thread in groups.google,
in more than one way.

My understanding of the answers I got is that your
last sentence above is correct, for a particular
meaning of risk. But you or someone went from the
notion of lower risk to the notion of lower cost,
and that is not the same thing, and it's not true
that the larger the group the lower the cost. Unless
some other factor is at work. The size of the group
does not have that effect. .

The meaning of risk for which your last line above
is true is the risk to the insurer that the payout
will exceed his predictions. That is lower, the
larger the group. But the payout itself is not
lower, just because the group is larger.

It's A) the payout, and not B) the chance that the
payout will be more than expected, that you are
talking about when you refer to cost. The risk of
B is lower for a bigger group, but the risk of A
may be lower or higher. For example. If the first
group is working people age 21 to 65, and that
group is made larger by adding people 66 to 120,
the group will be larger but the payout per person
will be more because older people are on average
sicker. If the first group were office workers,
and the group were made larger by adding miners
and crop dusters, the payout per person, the cost
of their health care, would be more.

The posts by Michael Stemper and Perter Webb are
particularly interesting on this subject. The
first post by Tim Little is particular interesting
in general.
Stuart A. Bronstein
2012-03-07 20:45:50 UTC
Permalink
Post by micky
Post by Stuart A. Bronstein
The larger the group the lower the cost.
The larger the group the lower the over-all risk.
My understanding of the answers I got is that your
last sentence above is correct, for a particular
meaning of risk. But you or someone went from the
notion of lower risk to the notion of lower cost,
and that is not the same thing, and it's not true
that the larger the group the lower the cost. Unless
some other factor is at work. The size of the group
does not have that effect. .
Depends on the demographics of the group. The larger
the group the more predictable the expense will be.
Post by micky
The meaning of risk for which your last line above
is true is the risk to the insurer that the payout
will exceed his predictions. That is lower, the
larger the group. But the payout itself is not
lower, just because the group is larger.
No, but if the group is larger then the income from
premiums is larger.

The idea of all insurance is to smooth out the costs
for everyone. Some will inevitably pay more than
they get back in any particular year, and some will
get more.

But with respect to health insurance, we will all be
old one day and we will all experience having to
under medical examinations and procedures. By
including everyone in the insurance pool the costs
become much more predictable, and on the whole more
affordable for everyone.

___
Stu
http://DownToEarthLawyer.com
Rich Carreiro
2012-03-10 03:54:03 UTC
Permalink
Post by Stuart A. Bronstein
The idea of all insurance is to smooth out the costs
for everyone.
No, it's not. Not at all.

The idea of all insurance is to smooth out the costs for
everyone in an actuarily-similar risk pool. Not for all
people.

In pure insurance you make separate groups. Everyone in
each group is a similar risk. With enough people in the
group the law of large numbers enables you to know with
good accuracy what you'll need to pay out. You then set
the premium to cover that (plus a reserve margin and a
profit margin.)

The key point is that this is done PER RISK GROUP. Each
member of a given risk group pays a premium that
reflects that risk. The premium will be different by group.
As well it should, since each group has a different risk
profile.

The idea is that each person in a group has a certain loss
(the premium) equal to the expected value of the cost of the
bad outcome being insured against. Instead of facing an
uncertain loss of the unknown actual value of the cost of
the bad outcome. That expected value depends on the risk
group and will be different from group to group.

As soon as you glom together risk groups you no longer have
pure insurance. No one (except by chance) is being charged
an actuarily-fair premium. Some groups are being
undercharged and some are being overcharged. In other
words, it's insurance with an overlaid cross-subsidy.

Now, one can argue about whether such cross-subsidies
are good or bad, but just don't call grouping people together
willy-nilly with no regard to underlying risk "insurance".

--
Rich Carreiro rlc-***@rlcarr.com
Mike
2012-03-25 02:19:33 UTC
Permalink
Post by Rich Carreiro
Post by Stuart A. Bronstein
The idea of all insurance is to smooth out the costs
for everyone.
No, it's not. Not at all.
The idea of all insurance is to smooth out the costs for
everyone in an actuarily-similar risk pool. Not for all
people.
In pure insurance you make separate groups. Everyone in
each group is a similar risk. With enough people in the
group the law of large numbers enables you to know with
good accuracy what you'll need to pay out. You then set
the premium to cover that (plus a reserve margin and a
profit margin.)
The key point is that this is done PER RISK GROUP. Each
member of a given risk group pays a premium that
reflects that risk. The premium will be different by group.
As well it should, since each group has a different risk
profile.
The idea is that each person in a group has a certain loss
(the premium) equal to the expected value of the cost of the
bad outcome being insured against. Instead of facing an
uncertain loss of the unknown actual value of the cost of
the bad outcome. That expected value depends on the risk
group and will be different from group to group.
As soon as you glom together risk groups you no longer have
pure insurance. No one (except by chance) is being charged
an actuarily-fair premium. Some groups are being
undercharged and some are being overcharged. In other
words, it's insurance with an overlaid cross-subsidy.
Now, one can argue about whether such cross-subsidies
are good or bad, but just don't call grouping people together
willy-nilly with no regard to underlying risk "insurance".
Actually, the most ACCURATE sized 'group' would be an "army of one."
I.e. if you could calculate every single possible aspect of risk, you'd
be most accurate in having each person pay exactly what their personal
risk factor would be. But if you lump 5 people into a group based on the
fact that all 5 are age 50, then you ignore the fact that 2 are males, 3
are females, 1 is African-American and 4 are Caucasian, 1 is a skydiver,
2 are couch potatoes, etc. There's really NO way to make even a group of
2 people and have exactly the same risk factors. Actuarial tables try to
smooth out such factors but they are never exact. One actuarial table
may simply assign risk based on sex, another may base it on age, another
on both, etc. The more factors you can base it on, the more precise you
can make the calculations but the smaller the groups become. And if the
group is even as small as 2 people, you still have one paying more than
their fair share and another paying more (even if that difference
amounts to as little as a penny over a lifetime.)

So ALL insurance does smooth out the costs for people within the group
in question and the smaller the group (assuming they are grouped based
on characteristics that actually affect risk, such as age or sex, and
not based on characteristics that have no bearing on risk, such as 'they
all work at the same place) the more precise the premiums can be and the
more graduated they can be between different groups. But you could have
a group called 'the world' and STILL be able to calculate a reasonable
premium for someone based on inclusion in that group. In fact, when the
group does NOT have mutually-common risk factors, such as age or sex,
the LARGER the group, the better (why do you think large companies get
better health rates? It's not due to them being more statistically
homogeneous but instead based on 'the more you have, the smoother the
bumps.')

When you have something like car or life insurance, yes, you want to
make the groups as small as possible. But when you have something like
health insurance provided via your workplace, you want the largest
groups you can possibly have.

n***@isp.com
2012-02-22 21:24:18 UTC
Permalink
On 18 Feb 2012, RichD wrote re. an earlier comment to the effect that
"courts have repeatedly said that includes the power to regulate
things that directly affect interstate commerce, as well as commerce
_intrastate_ commerce that could indirectly affect interstate
Post by RichD
What does 'regulate' mean? Nothing, anything,
everything?
Bearing in mind that all the cases being argued are facial challenges
to the federal so-called A.C.A., it might be interesting to be
informed what if any difficulty to you have with Judge Silberman's
definition and illustration writing for the majority in Seven Sky, et
al. v. Holder and, if you would claim to have any such difficulty,
what would be the facts and other reasons that would enable such a
claim to transcend mere fiat? -

"[T]he Constitution. Article I, ? 8, cl. 3, states:
'The Congress shall have Power . . . To regulate
Commerce . . . among the several States . . . ?
At the time the Constitution was fashioned, to
'regulate' meant, as it does now, '[t]o adjust by
rule or method,' as well as ?[t]o direct.? To 'direct,'
in turn, included '[t]o prescribe certain measure[s];
to mark out a certain course,' and ?[t]o order; to
command.? In other words, to 'regulate' can mean
to require action, and nothing in the definition appears
to limit that power only to those already active in
relation to an interstate market. Nor was the term
'commerce' limited to only existing commerce." *

[ * footnotes supporting his "[a]t the time . . .
meant" statement omitted ]
RichD
2012-02-19 03:21:38 UTC
Permalink
The authors write: "[T]he individual mandate does not
regulate commerce, interstate or otherwise... " and so
it is unconstitutional.
I spoke of federal appeals court Judge Silberman
upholding the ACA as one reason why I think this
will be decided by at least 6-3, in favor of the ACA
being constitutional. Judge Silberman's opinion
relies largely on a 1942 SCOTUS case, Wickard v.
---starting on page 30 of 37 pages--
[In Wickard v. Filburn], a farmer ran afoul of his
allowed wheat acreage under the Agricultural
Adjustment Act of 1938 by growing additional wheat,
not for sale, but to feed his family and his livestock.
Filburn argued that the Act was unconstitutional as
applied to him because he was not using the excess
wheat for any activity in the interstate market. The
Supreme Court unanimously rejected this claim. It
held that even growing wheat for personal
consumption, not for sale in any market, could affect
the national price, and therefore was within Congress'
commerce power. This conclusion was not only
because his wheat might be diverted into the national
market, as was recognized in Gonzales v. Raich,
545 U.S. 1, 18-19 (2005). Justice Jackson said even if
we assume that it is never marketed, it supplies a need
of the man who grew it which would otherwise be
reflected by purchases in the open market.
Home-grown wheat in this sense competes with wheat
in commerce.
Groovy.
Except, um, how does home gardening pertain to
forcing everyone to buy a gubmit approved health
plan?

--
Rich
Barry Gold
2012-02-19 06:16:47 UTC
Permalink
Post by RichD
Groovy.
Except, um, how does home gardening pertain to
forcing everyone to buy a gubmit approved health
plan?
Same basic idea. What you do affects the prices
of things in commerce, hence it comes under the
Interstate Commerce clause of the Constitution.
Dick Adams
2012-02-19 04:16:58 UTC
Permalink
The authors write: "[T]he individual mandate does not
regulate commerce, interstate or otherwise... " and so
it is unconstitutional.
I spoke of federal appeals court Judge Silberman
upholding the ACA as one reason why I think this
will be decided by at least 6-3, in favor of the ACA
being constitutional. Judge Silberman's opinion
relies largely on a 1942 SCOTUS case, Wickard v.
....
I encourage everyone to read Wickard v. Filburn
at en.wikipedia.org/wiki/Wickard_v._Filburn.

There is two issues in this unanimous SCOTUS
opinion that, IMRHO, differentiate ObamaCare
from wheat faming. First, the purpose of the
Agricultural Adjustment Act of 1938 was to
establish limits on wheat production in order
to maintain wheat prices during the Great
Depression. Second, an affirmative vote of
farmers was required before the wheat quotas
could be implemented. So an election was held,
the quotas were implemented, and Mr. Filburn
exceeded his quota.

Since no plebiscite is required for the
implementation of ObamaCare, I fail to see
Wickard v. Filburn as directly relevant.

Dick - I never was an attorney. My brother
was, but that's a family secret.
Stuart A. Bronstein
2012-02-22 21:23:20 UTC
Permalink
Post by Dick Adams
There is two issues in this unanimous SCOTUS
opinion that, IMRHO, differentiate ObamaCare
from wheat faming. First, the purpose of the
Agricultural Adjustment Act of 1938 was to
establish limits on wheat production in order
to maintain wheat prices during the Great
Depression. Second, an affirmative vote of
farmers was required before the wheat quotas
could be implemented. So an election was held,
the quotas were implemented, and Mr. Filburn
exceeded his quota.
Since no plebiscite is required for the
implementation of ObamaCare, I fail to see
Wickard v. Filburn as directly relevant.
Conventional wisdom is that Wickard stands for the
proposition that if you do something even locally
that can have an effect on interstate commerce
(e.g. affect the price someone else might pay
for something) then what you are doing can be
regulated under the insterstate commerce clause.

Whether or not everyone buys insurance will have
an effect on the price of insurance for some
others, if not everyone else. Based on that,
it is thought it affects commerce.

Some very conservative judges have agreed with
that. We just have to wait and see what the
nine wise-guys have to say.

___
Stu
http://DownToEarthLawyer.com
n***@isp.com
2012-02-22 21:25:50 UTC
Permalink
Post by Dick Adams
I encourage everyone to read Wickard v. Filburn
at en.wikipedia.org/wiki/Wickard_v._Filburn.
This is a good suggestion. But as more than only a nit-pick caveat:
while the explanatory text to which you refer is somewhat helpful, it
is not actually the full text of the supreme court decision itself,
which also can easily be found and read on line via Google or Yahoo or
Bing, etc.,
Post by Dick Adams
[ <snip> attempted summary of Wickard v Filburn,
317 US 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942) ]
* * * I fail to see Wickard v. Filburn as directly
relevant.
It more than merely relevant for two fundamental groupings of reasons.

The first as you have seen as intellectual/sustentative matter if/when
not confined to attempts to distinguish just Wickard on comparatively
narrow/fact-specific grounds is that, in doctrinal terms, it is the
lead supreme court ruling that purports to require and articulate only
a minimum threshold impact on commerce, not least including that it
does not limit "commerce" or a "market" to present/existing such, as a
basis to authorize federal government action.

The second is that, jurisprudentially including
judicially-politically, all the judges who have ruled in all the
federal health insurance law cases being reviewed by the Supremes and
certainly the Supremes themselves accept and so treat Wickard as not
only directly relevant but highly significant.

Relatedly in political terms in the context of these highly
politicized cases are the following considerations of which the second
almost certainly is the more important:

If it wasn't for the fact that it was a marijuana case, so that
the overwhelmingly unprincipled and cynical Scalia voted with the
majority in Gonzalez v. Raich (but only by way of concurrence in the
judgment and not with the reasoning of others in the majority), all
well-informed Scalia and U.S. supreme court and Scalia observers know
that he would have voted with majority (probably more or less in
accord with O'Connor's dissent). And it is the Raich gloss on and
arguable expansion of Wickard about what are/aren't the "outer limits"
of the commerce clause conferral of regulatory authority on the
federal government that (if one takes seriously the intellectual
components of these cases) is at the heart of the commerce clause
(other than, perhaps, for the "necessary and proper" provision)
elements of the 2010 A.C.A. cases.

Relatedly and, in political/cultural terms, more importantly in
this connection, there are reasons why the court scheduled as many
hours for oral argument of these cases as it did -- namely (and
especially as illustrated, too, by the puzzlement amounting to
surprise of many knowledgeable U.S. supreme court litigators and
observers in this connection, that the court included the Medicaid
expansion provisions of the A.C.A. in the claims/issues to be argued),
that a majority of the presently sitting justices are treating these
cases as an occasion for something of an, if you will, " 'Marbury v.
Madison' Moment" in which the majority proposes to re-cast Wickard and
its progeny to circumscribe federal governmental authority.

And two additional groupings of considerations that materially bear on
the above in light of Wickard, one "legal" and the other (hugely)
political, not anywhere near sufficiently discussed, are these:

OTOH, if one interprets the word "mandate" to be a governmental
directive with meaningfully enforceable "teeth" if the directive is
violated, what has come colloquially to be referred to as the A.C.A.
"mandate" barely amounts to that; and
OTOH, despite the near, "The Emperor Is (Mostly) Not Wearing Any
Clothes!" component of the statute's "mandate" and some occasional
public posturing otherwise, private health insurers and their trade
representatives generally are delighted with what is referred to as
the A.C.A. "mandate" and have made clear in a variety of ways that
they do want this aspect of the law, the principal aspect being
litigated, to be overturned (much less the A.C.A. as a whole and with
it, their governmentally expanded market to be reduced) so that these
cases pose for the Supremes the (political) question of how far the
court is willing to go to not reinforce corporate profits and
political power.
deadrat
2012-02-19 06:12:54 UTC
Permalink
Post by RichD
The authors write: "[T]he individual mandate does not
regulate commerce, interstate or otherwise... " and so
it is unconstitutional.
I spoke of federal appeals court Judge Silberman
upholding the ACA as one reason why I think this
will be decided by at least 6-3, in favor of the ACA
being constitutional. Judge Silberman's opinion
relies largely on a 1942 SCOTUS case, Wickard v.
---starting on page 30 of 37 pages--
[In Wickard v. Filburn], <snipped: details of Wickard/>
<snip/>
Post by RichD
Groovy.
Except, um, how does home gardening pertain to
forcing everyone to buy a gubmit approved health
plan?
It sets a lower limit on the activity that
triggers the commerce clause. If the gov
can regulate (as in criminalize) your
growing a few marijuana plants for your
own personal use, then it seems that
buying health insurance is well within the
boundaries.

Note that your defense -- I don't plan to
sell the dope -- won't wash because your
very holding back of some ganja from the
market might affect that market. So the
gov gets to regulate your *not* doing
something, too. (I'm being imprecise here.
Clearly your three hemp plants won't affect
interstate commerce, but Wickard requires
the analysis to assume that all stoners
will follow your home-grown lead.)
Stuart A. Bronstein
2012-02-22 21:23:54 UTC
Permalink
Post by deadrat
Post by RichD
Groovy.
Except, um, how does home gardening pertain to
forcing everyone to buy a gubmit approved health
plan?
It sets a lower limit on the activity that
triggers the commerce clause. If the gov
can regulate (as in criminalize) your
growing a few marijuana plants for your
own personal use, then it seems that
buying health insurance is well within the
boundaries.
Growing your own for personal use affects commerce because you
won't buy any from someone else, lessening demand and
(cumulatively) potentially increasing the price.
Post by deadrat
Note that your defense -- I don't plan to
sell the dope -- won't wash because your
very holding back of some ganja from the
market might affect that market. So the
gov gets to regulate your *not* doing
something, too. (I'm being imprecise here.
Clearly your three hemp plants won't affect
interstate commerce, but Wickard requires
the analysis to assume that all stoners
will follow your home-grown lead.)
Exactly. But that is the rationale. If the feds can regulate
medical marijuana, regulating health care should qualify as well.

___
Stu
http://DownToEarthLawyer.com
deadrat
2012-02-19 06:15:58 UTC
Permalink
Post by Dick Adams
The authors write: "[T]he individual mandate does not
regulate commerce, interstate or otherwise... " and so
it is unconstitutional.
I spoke of federal appeals court Judge Silberman
upholding the ACA as one reason why I think this
will be decided by at least 6-3, in favor of the ACA
being constitutional. Judge Silberman's opinion
relies largely on a 1942 SCOTUS case, Wickard v.
....
I encourage everyone to read Wickard v. Filburn
at en.wikipedia.org/wiki/Wickard_v._Filburn.
There is two issues in this unanimous SCOTUS
opinion that, IMRHO, differentiate ObamaCare
from wheat faming. First, the purpose of the
Agricultural Adjustment Act of 1938 was to
establish limits on wheat production in order
to maintain wheat prices during the Great
Depression. Second, an affirmative vote of
farmers was required before the wheat quotas
could be implemented. So an election was held,
the quotas were implemented, and Mr. Filburn
exceeded his quota.
Since no plebiscite is required for the
implementation of ObamaCare, I fail to see
Wickard v. Filburn as directly relevant.
Wickard v Filburn is directly relevant to the
ACA on two points. First is the analysis
required to determine what affects interstate
commerce. It's not just Filburn and his few
bushels of wheat; it's the sum of all the
possible Filburns' wheat. Second is the
regulation of what's called "non-activity."
Filburn lost even though he wasn't selling
wheat; he was actually not-selling wheat
(i.e., he claimed he grew the wheat for his
and his family's consumption and not for sale
on the open market).

So the relevance of Filburn is the threshold
and absence of activity.
Post by Dick Adams
Dick - I never was an attorney. My brother
was, but that's a family secret.
I promise not to tell.

Moderator: Thank you for keeping it a secret. ;)
Elle
2012-02-22 21:20:31 UTC
Permalink
Post by Elle
I spoke of federal appeals court Judge Silberman upholding
the ACA as one reason why I think this will be decided by at
least 6-3, in favor of the ACA being constitutional. Judge
Silberman's opinion relies largely on a 1942 SCOTUS case,
Wickard v. Filburn, 317 U.S. 111.
For some counter arguments, see Federal District Court Judge Henry
Hudson's opinion in Commonwealth of Virginia v. Sibelius at
http://www.scribd.com/doc/45213239/Commonwealth-of-Virginia-v-Sibelius-et-al

A quick and dirty overview of this case appears at Wickipedia. Note
that, on appeal, the Federal Appeals Court did not address the
substance of this particular lawsuit against the Affordable Care Act.
The Appeals Court found that Virginia lacked standing to bring suit
and threw it out. Still, I think District Court Judge Hudson's opinion
is worth comparing to Appeals Court Judge Silberman's opinion (co-
Appeals Court Judge Edwards concurring). I think one might be able to
make a checklist of each opinions' arguments on the Commerce Clause
and possibly see if one opinion trumps another.

I skimmed District Court Judge Hudson's opinion quickly and was
feeling that the differences between it and Appeals Court Silberman's
opinion seemed to hinge on (god I feel awful) semantics. A summary of
all the cases brought against the ACA appears at
http://en.wikipedia.org/wiki/Patient_Protection_and_Affordable_Care_Act#Fed=
eral_District_Court_ruling_from_United_States_District_Court_for_the_Northe=
rn_District_of_Florida.
It indicates that Federal District Court Judge Gladys Kessler also
spoke strongly of plaintiff-defendant-judge differences, re the
Commerce Clause, arising due to semantics.

I have to do the checklist to get a better grasp of the differences
and see if clearly Silberman's arguments trump Hudson's. Silberman is
rather highly thought of, but I will attempt to not let this bias my
analysis. But I will let Silberman's celebrity judicial, power
quarterback status influence my betting on the outcome of this case in
Vegas circles. Since Silberman made this ruling no doubt with the
understanding that nemesis (though only sitting in the stands)
Greenhouse would agree, I am thinking of upping my bet.
RichD
2012-02-22 21:26:36 UTC
Permalink
Post by John Levine
Post by RichD
What are the counter-arguments?
The main issue seems to me to be whether you believe
it's possible to opt out of the entire US health care system.
No, that's a legislative question.
Why would that be a constitutional issue for a court?
Post by John Levine
Let's say you mail in the form saying you opt out of
insurance. =A0The next morning you wake up with chest
pains, and it turns out that you need three stints
installed, an operation that costs about $80,000.
You don't have $80,000. =A0Now what?
If the answer is anything other than "you die", someone's
going to pay for the healthcare you get, so you didn't really
opt out.
So far, I haven't met many people, even on the far right,
who are willing to go that far. =A0Typically they wave their
hands and assert the existence of "free" care, or maybe
that doctors will treat you out of the goodness of their
hearts, none of which seems plausible to me.
What makes any any of this a constitutional issue?
Let me guess - it's fine with you, if a a judge dictates
that everyone must get heatlh care, by any means
necessary.
Post by John Levine
An interesting result would be if the court decided the
parts of the law were separable, so they voided the
requirement to buy insurance, but left the rest in place.
Now, in the scenario above, since the must-issue rules
are still in place, you can buy insurance as you arrive
at the hospital. =A0Insurance companies won't like that.
So what? Now the court is supposed to take
insurance firms' feelings into account? It's a matter
for Congress to rectify -

Ur a bit unclear on the issue, dood -
Post by John Levine
PS: With respect to the WSJ, remember that their
editorial page is amazingly reliable. =A0Everything
they say is wrong. =A0Dow 36,000, anyone?
http://tinyurl.com/village-voice-mamet
--
Rich
RichD
2012-02-22 21:28:11 UTC
Permalink
Post by RichD
Except, um, how does home gardening pertain to
forcing everyone to buy a gubmit approved health
plan?
Same basic idea. =A0What you do affects the prices
of things in commerce, hence it comes under the
Interstate Commerce clause of the Constitution.
But if that is extended to Obamacare, where what
you DON'T falls under the Commerce clause, then
it's the final nail in the principle of federalism,
or any check on Congressional power.

It's like the Supremes wil be announcing: "The
Constitution has been asswipe for 70 years, de
facto, but now with the Commerce clause,
Wickard, and Obamacare, it's de jure."

We already have the spectacle of Congrabmen
on teevee, asked if there are any limits to Congress'
reach, unable to respond. AK's senator, in 2010:
"It would be bad for the country if Congress limited
itself to the Constitution!"
--
Rich
deadrat
2012-02-24 04:29:53 UTC
Permalink
Post by RichD
Post by RichD
Except, um, how does home gardening pertain to
forcing everyone to buy a gubmit approved health
plan?
Same basic idea. What you do affects the prices
of things in commerce, hence it comes under the
Interstate Commerce clause of the Constitution.
But if that is extended to Obamacare,
Let's call the law by its name, the Affordable
Care Act (or ACA), or by its purpose, the health
insurance reform law. If you're skeptical (as
am I) that the law will makes health insurance
more affordable or that it will reform the
insurance industry, feel free to prepend the
label "so-called."

Obama didn't propose the law; his staff didn't
write it.
Post by RichD
where what you DON'T falls under the Commerce
clause, then it's the final nail in the
principle of federalism, or any check on
Congressional power.
If SCOTUS upholds the ACA, what extra power do
think will accrue to Congress under the commerce
clause? Given Gonzales v Raich, that clause is
already remarkably elastic.
<snip/>
Post by RichD
We already have the spectacle of Congrabmen
on teevee, asked if there are any limits to Congress'
"It would be bad for the country if Congress limited
itself to the Constitution!"
That would be either Begich or Murkowski. A brief
time spent with the google doesn't turn up anything
like this quote attributed to either.
Do you have a cite?
RichD
2012-03-02 01:29:40 UTC
Permalink
Post by deadrat
Post by RichD
Post by RichD
Except, um, how does home gardening pertain to
forcing everyone to buy a gubmit approved health
plan?
Same basic idea. What you do affects the prices
of things in commerce, hence it comes under the
Interstate Commerce clause of the Constitution.
If SCOTUS upholds the ACA, what extra power do
think will accrue to Congress under the commerce
clause? Given Gonzales v Raich, that clause is
already remarkably elastic.
<snip/>
Post by RichD
We already have the spectacle of Congrabmen
on teevee, asked if there are any limits to Congress'
"It would be bad for the country if Congress limited
itself to the Constitution!"
That would be either Begich or Murkowski. A brief
time spent with the google doesn't turn up anything
like this quote attributed to either.
Do you have a cite?
It was in August 2010, at a rancorous Repub. rally in
Alaska. The tea party was calling Murko a big spender,
DofC politician, and she responded with the beauty
quoted above. They booted her off the ticket, in the
primary.

It was reported in Wall Street Journal. Alas, some of
their articles are available only to subscribers,
which apparently does not include the google, to its
everlasting discredit.

--
Rich
micky
2012-03-07 01:49:23 UTC
Permalink
Post by RichD
It was reported in Wall Street Journal. Alas, some of
their articles are available only to subscribers,
which apparently does not include the google, to its
everlasting discredit.
Does any search engine subscribe to any peroidical?
or anthing at all? I don't think so. The
web-crawlers of search engines reach sites whose
owners have set things up so that they can be found.
If the WSJ doesn't do that, the repsonsibility is on
the WSJ.

No discredit to google.
Elle
2012-02-24 04:39:47 UTC
Permalink
Post by RichD
Post by RichD
Except, um, how does home gardening pertain to
forcing everyone to buy a gubmit approved health
plan?
Same basic idea. What you do affects the prices
of things in commerce, hence it comes under the
Interstate Commerce clause of the Constitution.
But if that is extended to Obamacare, where what
you DON'T falls under the Commerce clause, then
it's the final nail in the principle of federalism,
or any check on Congressional power.
The 11th Circuit opined, in a 2-to-1 decision
similarly. Excerpt:

---Judges Dubina (Bush 1 appointee) and Hull (Clinton
appointee though selected as a compromise candidate)
for the majority---

As our extensive discussion of the Supreme Court's
precedent reveals, Commerce Clause cases run the
gamut of possible regulation. But the diverse fact
patterns of Wickard, South-Eastern Underwriters,
Heart of Atlanta Motel, Lopez, Morrison, and Raich
share at least one commonality: they all involved
attempts by Congress to regulate preexisting,
freely chosen classes of activities.
...

Congress may regulate commercial actors. It may
forbid certain commercial activity. It may enact
hundreds of new laws and federally-funded p
rograms, as it has elected to do in this massive
975-page Act. But what Congress cannot do under
the Commerce Clause is mandate that individuals
enter into contracts with private insurance
companies for the purchase of an expensive
product from the time they are born until the
time they die.

It cannot be denied that the individual mandate
is an unprecedented exercise of congressional
power. As the CBO observed, Congress "has never
required people to buy any good or service as a
condition of lawful residence in the United
States." Never before has Congress sought to
regulate commerce by compelling non-market
participants to enter into commerce so that
Congress may regulate them. The statutory
language of the mandate is not tied to health
care consumption - past, present, or in the
future. Rather, the mandate is to buy insurance
now and forever. The individual mandate does
not wait for market entry.

Because the Commerce Clause is an enumerated
power, the Supreme Court's decisions all
emphasize the need for judicially enforceable
limitations on its exercise. The individual
mandate embodies no such limitations, at
least none recognized by extant Commerce Clause
doctrine. If an individual's decision not to
purchase an expensive product is subject to the
sweeping doctrine of aggregation, then that
purchase decision will almost always
substantially affect interstate commerce.
---

Judge Hull "has consistently restricted
individual rights and favors prosecutors over
criminal defendants."

Dissenting was Judge Marcus. Marcus is a Clinton
appointee who is a Republican and was a compromise
choice between Clinton and Congress. Judge
Marcus blasted the view of the 11th Circuit's
two-judge majority as ignoring precedent regarding
(1) the commerce clause and (2) ruling an act of
Congress unconstitutional.

304 page majority and dissenting opinions at
http://www.uscourts.gov/uscourts/courts/ca11/201111021.pdf
Hank Youngerman
2012-02-24 04:51:47 UTC
Permalink
Post by RichD
Post by Barry Gold
People who do not buy health insurance because they
are currently well drive up the price for people with
less perfect health histories -- the fewer people the
cost is spread among, the more each covered
person must pay.
This statement, taken purely as economics, is inane;
it might, but doesn't, apply to ANYTHING whatever.
Replace 'health insurance' with X -
Are you kidding??? Have you ever priced insurance
for groups? The larger the group the lower the cost.
The larger the group the lower the over-all risk.
This is a nonsensical argument. The post to
which this last one replied will perhaps not
win any Pullitzer Prizes for editorial
clarity, but the principle is irrefutable.

The earlier post (I don't want to call it
"original" as it wasn't first in the thread)
specified that when fewer people buy insurance,
those who do not buy it will be the healthiest
in the pool. And there is little question that
when anyone can get coverage at the same price,
those with the highest expected costs will buy
it more readily.

In insurance the concept is called "adverse
selection" and it is the basis of the
insurance practices of classification rating
and underwriting. Imagine if the workers'
compensation premiums were fixed at 50 cents
per hour per employee, for all businesses, and
insurance companies had to accept all business,
but businesses did not have to buy it, they
could self-insure instead. Manufacturers,
mines, and trucking firms would line up with
cash in their hand, and companies like mine
(a large software company, Microsoft-like but
on a smaller scale) would happily pay for
workplace injuries ourselves.

The reason that larger groups get more favorable
rates is that in a small company, there is a risk
of one or two seriously ill employees having
expenses high enough to turn the entire account
into a money-loser. While it's true that in
theory an insurance company is large enough to
be profitable if 9 of 10 small accounts are
profitable and the 10th does have significant
losses, companies really don't look at it that
way. They want all their accounts to be
profitable, or at least have a fighting chance
at it.

The essential problem here is that (a) there are
significant and easily-identifiable differences
in expected costs between insureds. Women cost
slightly more than men, and older people cost a
LOT more than younger ones; and (b) even within
these groups, there are significant differences
between individuals, and individuals can predict
these differences with moderate accuracy. The
federal government has decided that medical care
should be "affordable" for everyone, which almost
necessarily means subsidizing higher-cost
individuals. However, they are unwilling to pay
for these subsidies from tax dollars, preferring
to tax healthier individuals in another way, by
making them buy an overpriced product.

I'm 54, which means I'm extremely grateful to
know that if I lost my job, I could under ACA
get health coverage at an "affordable" price.
I think that the basic Medicare Part B premium
is about $100 a month, which covers 25% of the
cost of the program, meaning that the full cost
of Part B (physicians costs) is about $400 a
month. I don't know what the Part A cost is
(that is paid by Medicare taxes) but let's
guess another $400 a month, and $200 a month
for Part D (prescription medication). That
suggests that the average medical costs for
someone age 65 or older is $1000 a month, and
I'm guessing that's a bit on the low side,
and there are significant deductibles and
copayments. If I had to buy health coverage on
the open market, it would probably cost me at
least $600-$700 a month, but under ACA my
premiums would be subsidized by younger people.
I doubt I would be so ecstatic if I were 24
rather than 54.

I am not taking a political position on ACA, I
am taking an actuarial position (and I am a
Fellow of the actuarial society, I do not speak
for the society of course, the society speaks
for itself at www.actuary.org =).
RichD
2012-03-10 03:48:45 UTC
Permalink
Post by micky
Post by Stuart A. Bronstein
The larger the group the lower the cost.
The larger the group the lower the over-all risk.
My understanding of the answers I got is that your
last sentence above is correct, for a particular
meaning of risk. But you or someone went from the
notion of lower risk to the notion of lower cost,
and that is not the same thing, and it's not true
that the larger the group the lower the cost. Unless
some other factor is at work. The size of the group
does not have that effect. .
Depends on the demographics of the group. The larger
the group the more predictable the expense will be.
Post by micky
The meaning of risk for which your last line above
is true is the risk to the insurer that the payout
will exceed his predictions. That is lower, the
larger the group. But the payout itself is not
lower, just because the group is larger.
No, but if the group is larger then the income
from premiums is larger.
That tells nothing about the efficiency of the process.
The idea of all insurance is to smooth out the
costs for everyone.
No, it isn't.
But with respect to health insurance, we will
all be old one day
We will?
ALL of us?

Yes, this IS a valid point.
and we will all experience having to
under medical examinations and procedures.
Some will consume more than others. And hence
should pay more.

It's called economics, the allocation of scarce
resources. Medicine is not exempt from these
laws, despite popular delusion and bombast.
By including everyone in the insurance pool the
costs become much more predictable, and on the
whole more affordable for everyone.
"on the whole"
I love that one.

One foot in boiling water, one foot in ice water,
and on average - on the whole - you're doing
all right.

--
Rich
RichD
2012-03-24 01:29:04 UTC
Permalink
Post by Stuart A. Bronstein
The idea of all insurance is to smooth out the costs
for everyone.
No, it's not. Not at all.
The idea of all insurance is to smooth out the costs for
everyone in an actuarily-similar risk pool. Not for all
people.
In pure insurance you make separate groups. Everyone in
each group is a similar risk. With enough people in the
group the law of large numbers enables you to know with
good accuracy what you'll need to pay out. You then set
the premium to cover that (plus a reserve margin and a
profit margin.)
The key point is that this is done PER RISK GROUP. Each
member of a given risk group pays a premium that
reflects that risk. The premium will be different by group.
As well it should, since each group has a different risk
profile.
.......
As soon as you glom together risk groups you no longer have
pure insurance. No one (except by chance) is being charged
an actuarily-fair premium. Some groups are being
undercharged and some are being overcharged. In other
words, it's insurance with an overlaid cross-subsidy.
Now, one can argue about whether such cross-subsidies
are good or bad, but just don't call grouping people together
willy-nilly with no regard to underlying risk "insurance".
Well stated.

You might also find this of interest:
http://tinyurl.com/obamacare-econ

--
Rich
Barry Gold
2012-03-24 13:58:07 UTC
Permalink
Post by RichD
Post by Rich Carreiro
As soon as you glom together risk groups you no longer have
pure insurance. No one (except by chance) is being charged
an actuarily-fair premium. Some groups are being
undercharged and some are being overcharged. In other
words, it's insurance with an overlaid cross-subsidy.
Now, one can argue about whether such cross-subsidies
are good or bad, but just don't call grouping people together
willy-nilly with no regard to underlying risk "insurance".
http://tinyurl.com/obamacare-econ
Yes, but _how_ you define the risk groups is often critical. Use the
right factors and you can out-compete other insurers and make money.
Pick the wrong ones, and you lose customers to those who make better picks.

Further, of course, our laws limit the basis on which you can set your
risk groups. For example, American blacks are at higher risk for
hypertension (high blood pressure) than whites or Asians. But if you
charge extra for being black, you'll run right into the Civil RIghts laws.

Two things to beware of here:

1. Any source that refers to the health are plan as "Obamacare" rather
than as the Patient Protection and Affordable Care Act (PPACA) is
showing their bias.

2. Using the Wall Street Journal as a source in anything political must
be considered suspect. WSJ is owned by News Corporation, aka Rupert
Murdoch. News Corp. is, of course, also the owner of Fox News. Fox
News is was sued by a former employee who claimed that he was ordered to
lie. Fox asserted that they had a right to lie. They are correct, of
course: the First Amendment guarantees them the right to lie (except for
defamation of character, and then only under limited circumstances).
But no other news organization has ever needed (or wanted) to assert
such a right.

Also, there are two ways of looking at insurance.

1. A way to "spread the risk". 1,000,000 people have a given risk, so
instead of making each person bear the risk of, say, a $100,000 loss
that would happen to 1 person in 1,000, you charge each person
$100+epsilon. This is relatively simple to understand, but is useless
against a risk that will hit a large number of people if it occurs at
all (a large earthquake, war, etc.)

2. The insurer "buys" the risk from the policyholder. Risk has a
negative value, so the insured must pay the insurer for that negative
value. Note that this makes it at least theoretically possible to
insure against "mass risks". If the insurer has a net worth of
$1,000,000,000, it can write 500 policies for $100,000 each, risking
1/20th of its net worth.

If the risk occurs in the first year, the insurer takes a loss (but not
a crippling one). If not, next year it has $50,000,000 more and can
write 1,000 policies. Etc.
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