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Posted at 10:58 AM ET, 02/ 4/2011

Sorry: Scalia is not going to save the Affordable Care Act

By Adam Serwer

Sam Stein reports today that some legal observers believe that Justice Antonin Scalia may vote to uphold the individual mandate, based on his concurring opinion in Gonzales v. Raich, which was premised on a broad interpretation of the Commerce Clause.

In a separate concurrence to Raich's majority decision -- which held that Congress could criminalize the production of homegrown marijuana even in states that approved of its medical use -- Scalia made what is widely regarded as one of the Court's broadest interpretations of Congress' ability to regulate commerce. Not only did the legislative branch have the "power to regulate activities that have a substantial effect on interstate commerce," he wrote; it had the power to extend itself into "those measures necessary to make the interstate regulation effective."

In Raich, the dispute involved someone growing their own medical marijuana. In order to justify regulating such a thing under the Commerce Clause, Scalia wrote that "Congress may regulate noneconomic intrastate activities only where the failure to do so "could ... undercut" its regulation of interstate commerce."

Conscious of the fact that the precedent set by Scalia in Raich would require upholding the Affordable Care Act, Judge Henry E. Hudson gave Scalia an escape hatch in his ruling overturning the individual mandate -- he made a distinction between "activity" and "inactivity," arguing that not buying health insurance was the latter and therefore could not be regulated. The distinction is spurious in the context of health insurance because of the specific problems posed by the insurance market, but it also doesn't really make sense with Raich. Using Hudson's standard, the plaintiff in that case was no more trying to "enter the stream of commerce" by growing marjiuana for their own personal medical use than someone who avoids buying health insurance and then passes on the costs to everyone else when they get sick. It makes no sense to hold Raich correct, but think that the ACA is unconstitutional.

Libertarians were deeply disappointed by Scalia's opinion in Raich. But as Randy Barnett, the attorney who represented the plaintiff in Raich, wrote shortly after Hudson's ruling, "Does anyone want to bet serious money on whether Justice Scalia, the father of this newly minted Necessary & Proper Clause doctrine, won't see all this by the time the case reaches the Court, that he won't adopt Judge Hudson's distinction between activity and inactivity as a judicially administrable limit on his doctrinal creation, and that he won't distinguish Raich (and Wickard) from this case on this ground?"

I wouldn't take that bet, because I think the court is mostly partisan and interprets the Commerce Clause as broadly as it wants to based on the policy preferences of the Justices. As the folks at Reason previously noted, the only time in recent history the court has overturned a law as exceeding the limits of the Commerce Clause was to strike down federal gun regulations in U.S. v Lopez. Then when it came time to punch some pot smoking hippies in the face in Raich, the conservative justices rediscovered their love for it.

More recently, Scalia telegraphed his intentions by signing on to Clarence Thomas' dissent from the court's decision not to hear a case involving a ban on selling bulletproof vests to ex-felons. Thomas wrote that by not hearing the case, the court was accepting "the nullification of [its] recent commerce clause jurisprudence." Mulligan!

So while it wouldn't make any sense for Scalia to overturn the ACA based on his prior jurisprudence, I think he'll do so because he, like most Republicans, probably hates the law and wants to see it repealed. If the decision on the constitutionality of the ACA was merely based on legal precedent, there would be no question about it being upheld, with Thomas as the only likely dissent.

UPDATE 11:53 a.m.: My mistake, the other recent CC case where a federal law was struck down as exceeding the limits of the commerce clause involved striking the part of the Violence Against Women Act that allowed women to sue their abusers in civil court even in the absence of criminal charges against them.

By Adam Serwer  | February 4, 2011; 10:58 AM ET
Categories:  Health reform, Supreme Court  
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Comments

You'd think since the mandate is pro-business and will spur economic growth, he'd be all for it since he appears to be a corporate Koch sucking sell-out.

Posted by: mikefromArlington | February 4, 2011 11:14 AM | Report abuse

"Libertarians were deeply disappointed by Scalia's opinion in Raich" --- but not surprised. As I posted in the morning links, it's the DFH exception. If Raich is about anything other than pot, I'd be willing to bet Scalia dissents.

How broad is the commerce clause? depend on what team is wielding it and to what end.

Thomas' dissent is a pretty good read:

http://www.law.cornell.edu/supct/html/03-1454.ZD1.html

Posted by: NoVAHockey | February 4, 2011 11:18 AM | Report abuse

"Then when it came time to punch some pot smoking hippies in the face in Raich"

I object to this unnecessarily violent rhetoric, which creates an atmosphere where blog readers might find violence more acceptable.

That being said, it'd be a much more easy-going world if everybody grew their own medicinal "home herbal remedies".

Posted by: Kevin_Willis | February 4, 2011 11:22 AM | Report abuse

Hey Adam,

As usual on this issue, I have to respectfully disagree. You are right that a person home-growing marijuana for medical purposes has no intention of entering the stream of commerce (and as a personal matter, I think the ruling stretched the commerce and necessary and proper clauses beyond their proper scope and reflected a misguided apprehension about liberalization of drug policy in this country). You are also right that the justices' commerce clause jurisprudence has tended to be less than consistent, reflecting a desire to fit the Constitution to their policy preferences. However, I think that there is a clear difference between regulating an activity (growing a plant) and an inactivity (not spending money on a commodity you don't desire). I also would distinguish Wickard on the grounds that farmers would have been permitted to refrain from purchasing wheat if they so chose. I don't think there is "no question about it being upheld" if past commerce decisions are followed, and I don't believe most legal scholars find that case that clear cut.

I do want to point out that this is not about disagreeing with the wisdom of providing people with health coverage. I think that is a noble end. However, the Constitution doesn't say anything about exceptions to its provisions when "something is a really good idea."

Posted by: mobrien83 | February 4, 2011 11:22 AM | Report abuse

Bush-Appointed Federal Judge Tosses Out Challenge To Health Reform

http://thinkprogress.org/

"Judge Roger Vinson’s error-filled opinion was one of the biggest news stories this week, at times even overshadowing the revolution underway in Egypt. Yet another opinion signed by George W. Bush-appointed Judge Keith Starrett highlights just how much of an extreme outlier Vinson is — and how wrong it was for so many observers to overreact to Vinson’s tea partying opinion.

The Constitution requires a plaintiff to show that they will actually be injured by a law before they can challenge it in court, a requirement known as “standing.” Judge Starrett concluded that the plaintiffs in this suit did not demonstrate that the act’s minimum coverage provision — which requires most uninsured Americans to pay slightly more income taxes — would actually cause them to pay more taxes when the law goes into effect in 2014:

Plaintiffs’ First Amended Petition contains insufficient allegations to establish that they will certainly be “applicable individuals” who must comply with the minimum coverage provision.

For example, Plaintiffs did not allege any facts which, if true, would certainly establish that they would not be subject to the provision’s religious exemptions. Plaintiffs simply alleged that they will be subject to the minimum essential coverage provision – a bare legal conclusion which the Court may not accept as true.

Furthermore, it is not certain from Plaintiffs’ allegations that, in the event they were considered “applicable individuals,” they would incur the tax penalty for non-compliance. Their First Amended Petition contains insufficient allegations to establish that they will not be subject to one of the exemptions to the penalty.

For all of the reasons stated above, the Court finds that the ten primary Plaintiffs have not plead sufficient facts to establish that they have standing to challenge the Constitutionality of the minimum essential coverage provision of the PPACA."

Posted by: Liam-still | February 4, 2011 11:27 AM | Report abuse

http://thinkprogress.org/2011/02/03/repeal-staff-gop/

"Why Has Every Pro-Repeal GOP Lawmaker Given Their Congressional Staff Taxpayer-Funded, Gov Health Care? "

"

Posted by: Liam-still | February 4, 2011 11:32 AM | Report abuse

From Clarence Thomas's dissent:

"" Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.""

And that's why I love Clarence.

""Respondents’ local cultivation and consumption of marijuana is not “Commerce … among the several States.”""

Is that even debatable? I mean, really?

"U.S. Const., Art. I, §8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents’ conduct, however, is not “necessary and proper for carrying into Execution” Congress’ restrictions on the interstate drug trade. Art. I, §8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents’ conduct.""

Read the whole thing. Yes, he should have reported his income correctly, but, dang. I love me some Clarence Thomas.

I've heard he almost never asks questions during cases. I think that must be because his brain is so highly evolved he can read minds.

3 . . . 2 . . . 1 . . .

Posted by: Kevin_Willis | February 4, 2011 11:35 AM | Report abuse

Liam,

In the case of GOP lawmakers staff members, health coverage is being provided by their employer. Such is the case for many Americans who have full-time salaried employment. There are good arguments on both sides of this issue, but that, to me, just isn't one of them.

Posted by: mobrien83 | February 4, 2011 11:37 AM | Report abuse

I think your observation in the linked article at the American Prospect was dead on:

"Libertarian arguments about the limits of the commerce clause are successful when they mesh with the preferred policy outcomes of conservative Republicans. That's why defenders of the ACA should be worried."

http://www.prospect.org/csnc/blogs/adam_serwer_archive?month=02&year=2011&base_name=moar_on_the_commerce_clause

Justice Thomas's dissent in Gonzales v. Raich is much more coherent than Justice Scalia's position, and sums up everything nicely in the first two paragraphs:

"Justice Thomas, dissenting.

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.

I

Respondents’ local cultivation and consumption of marijuana is not “Commerce … among the several States.” U.S. Const., Art. I, §8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents’ conduct, however, is not “necessary and proper for carrying into Execution” Congress’ restrictions on the interstate drug trade. Art. I, §8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents’ conduct."

http://www.law.cornell.edu/supct/html/03-1454.ZD1.html

Posted by: jnc4p | February 4, 2011 11:39 AM | Report abuse

Adama:

""...someone who avoids buying health insurance and then passes on the costs to everyone else when they get sick.""

You are confused about cause and effect. A person who avoids buying insurance does not pass their subsequent costs on to everyone else. The government does, via legislation requiring treatment be given regardless of ability to pay.

Posted by: ScottC3 | February 4, 2011 11:46 AM | Report abuse

Hypocrisy is always a good argument against Hypocrites.

Of course it needs to be pointed out again and again, that a few Republican Reps, who voted for repeal, also decided to be consistent and keep their own private Insurance Plans.

That of course then Exposed the Republicans, and confirmed that they had been using "The Big Lie" tactic all along.

How so, I hear you ask. Let me tell you why.

Republicans kept spreading Their Big Lie, that reform was a Government take over of health care coverage, but those Republicans Reps who decided that they were going to stick with their own Private Insurance Plans, proved that Government did not take over Health Care.

Get it yet:

President Obama said: If you like your present Insurance Plan and/or Provider, you will be free to keep it.

Along comes a few Republican Reps, and admit that is exactly what they can and are going to do.

Republicans Lie, and Poor Sick People Die.

Posted by: Liam-still | February 4, 2011 11:48 AM | Report abuse

@Kevin_Willis "I've heard he almost never asks questions during cases."

I believe Justice Thomas doesn't ask questions at oral argument because the answers given don't make any difference to any of the Justice's opinions. He's simply not participating in the farce of impartiality. I.e. the idea that the Justices don't already know what they think the proper result should be once a case is being argued before them.

Posted by: jnc4p | February 4, 2011 11:50 AM | Report abuse

Thomas does not ask questions, because he does not have his clerks whispering in his ear, to tell him what to ask.

They write his opinions.

Posted by: Liam-still | February 4, 2011 11:52 AM | Report abuse

Liam,

I don't recall ever making the argument that health care reform is a government takeover of health care. I was simply pointing out that your point about GOP lawmakers allowing their employees (who are employees of the federal government) has no bearing on the argument over whether the law is 1)constitutional or 2) a good idea.

My take is that it is a good idea that happens to be unconstitutional.

There is nothing inconsistent or hypocritical about saying that government should provide health insurance for its employees but should refrain from regulating the health care industry in the way it has. These are two completely unrelated issues.

I think it is an abomination that in this country people are left without affordable, available health care, but that doesn't mean that the government can exceed the boundaries of the constitution to achieve legitimate ends. For me, the less palatable solution is a single-payer system, and I would disagree strongly with the wisdom of such a solution, but I would contend that such a system would be more consistent with constitutional constraints.

Posted by: mobrien83 | February 4, 2011 11:56 AM | Report abuse

"If you like your present Insurance Plan and/or Provider, you will be free to keep it."

Beginning January 1, 2011, PPACA generally provides that OTC drugs will no longer will treated as non-taxable, medical expenses unless they are pursuant to a "prescription." This means that aspirin and other OTC drugs will no longer be reimbursable from an FSA or HRA, or be treated as a non-taxable medical expense under an HSA, unless pursuant to a prescription. It also means that account holders may no longer be able to purchase OTC drugs using an HSA, FSA or HRA debit card.

I did not get to keep my current plan. is that a Big Lie? but no problem. I just changed from an over-the-counter to a prescription at much higher price. My out-of-pocket didn't change, but it costing the health system more. but that's "free" so whatever.

Posted by: NoVAHockey | February 4, 2011 11:56 AM | Report abuse

@Liam-still "How so, I hear you ask. Let me tell you why.

Republicans kept spreading Their Big Lie, that reform was a Government take over of health care coverage, but those Republicans Reps who decided that they were going to stick with their own Private Insurance Plans, proved that Government did not take over Health Care.

Get it yet:

President Obama said: If you like your present Insurance Plan and/or Provider, you will be free to keep it.

Along comes a few Republican Reps, and admit that is exactly what they can and are going to do."

You chose a poor example to make your point. The health care law isn't fully implemented yet. The real question will be what changes are mandated after 2014. Given the number of waivers that Obama's HHS department has already given to existing insurance plans that would otherwise be discontinued, this isn't a persuasive argument.

See also the shutdown of nHealth, although there were also allegations of fraud there.

"A Virginia-based insurance company says “considerable uncertainties” created by the Democrats’ health care overhaul will force it to close its doors by the end of the year.

The firm, nHealth, appears to be the first to claim that the new law has driven it out of business. “We don’t know what the rules are going to be, and, as a start-up, our investors need certainty,” nHealth CEO and President Paul Kitchen told POLITICO. “The law created so much uncertainty that is beyond our control.”

Last week, in a letter to the company’s 50 or so employees, Executive Vice President James Slabaugh said nHealth has stopped accepting new group customers and will terminate all business by Dec. 31.

“The uncertainties in the regulatory climate coupled with new demands imposed by national health care reforms have made it challenging to sustain the level of sales required to remain viable over the long run,” Slabaugh wrote.

The company’s finger-pointing — first reported by the newspaper Richmond BizSense — must be read with caution: For years, employers and health insurance brokers have struggled to keep pace with steeply rising health care costs.

Asked about nHealth’s decision to shut down, a White House aide said, “It’s difficult to comment on this case without fully evaluating the company in question.”"

http://www.politico.com/news/stories/0610/38194.html

More fundamentally, you can't do all three of these at the same time:

1. Cover (almost) everyone
2. Reduce costs
3. Everyone who likes their current plan gets to keep it.

One of the three has to give.

Posted by: jnc4p | February 4, 2011 12:04 PM | Report abuse

Defend The Republicans Big Lie Tactic all you want to; but those Republican Reps just admitted That Government is not taking over health care coverage, and they were free to keep their old private coverage.

Coverage Costs, and what is, and what is not covered, have changed year after year, before reform, so take your specious argument, and tell it to those gullible Tea Party Koch Suckers.

Pull yourself up by your bootstraps, and search for the best plan that The Insurance Cabal will give you. That is the Republican way, isn't it?

Posted by: Liam-still | February 4, 2011 12:06 PM | Report abuse

@jnc4p: "I believe Justice Thomas doesn't ask questions at oral argument because the answers given don't make any difference to any of the Justice's opinions."

I believe it's because he can read minds, and has mysterious powers that let him see into your soul. So he knows what evil lurks inside the hearts of men.

@Liam: "They write his opinions."

His clerks are merely automatons whom Clarence Thomas's brain use as hands, and for other menial tasks, as the central function of Clarence's physical body (or, as he calls it, Body Prime) is to support the immense power requirements of his massive brain. Many times he writes his own opinions by directly manipulating the electrons inside his computer, but because that would be awkward to explain, the official reason put out is: "Oh, um, it's the clerks. Yeah, that's the ticket!"

Posted by: Kevin_Willis | February 4, 2011 12:07 PM | Report abuse

All, check out a new, emerging Dem argument against repeal of reform:

http://voices.washingtonpost.com/plum-line/2011/02/is_the_gops_repeal_push_creati.html

Posted by: Greg Sargent | February 4, 2011 12:13 PM | Report abuse

Most people who have liked their current plan, at any given point over the past 30 years, haven't gotten to keep it.

Employers change plans frequently and there's no "choice" for an employee to keep what he had before. Generally when the plans change, the coverage goes down and deductibles and co-pays go up. There are probably very few of us who have been working in the past 30 years who have ever had a good plan that was traded in for a better one.

People with individual insurance don't get to keep their plans for more than a couple of years, either. By that time, the insurer has tacked on numerous clauses, exceptions, and price hikes. Again, all in the direction of shifting more of the cost onto the individual.

Some people think it's a real gotcha to point to the president's statement, but there are at least 100 million people in the country who know that "keeping the plan they like" was never in their hands before ACA either.

Posted by: JennOfArk | February 4, 2011 12:13 PM | Report abuse

@Liam-still "Defend The Republicans Big Lie Tactic all you want to; but those Republican Reps just admitted That Government is not taking over health care coverage, and they were free to keep their old private coverage."

Here's some more:

"McDonald's May Drop Health Plan"

"McDonald's Corp. has warned federal regulators that it could drop its health insurance plan for nearly 30,000 hourly restaurant workers unless regulators waive a new requirement of the U.S. health overhaul.

The move is one of the clearest indications that new rules may disrupt workers' health plans as the law ripples through the real world."

http://online.wsj.com/article/SB10001424052748703431604575522413101063070.html

More honest progressives, such as Timothy Noah of Slate concede this point, but argue that it's a desirable outcome as the insurance plans being offered were insufficient. However, they do acknowledge that this isn't what Obama promised:

"The Journal reported that McDonald's was threatening to drop its health care plan if it didn't get its exemption. That would seem an accurate interpretation of McDonald's' assertions that the cost of the medical-loss ratio "would be economically prohibitive for our carrier" and that "having to drop our current mini-med offering would represent a huge disruption to our 29,500 participants." But it elicited huffy denials not only from McDonald's ("Media reports stating that we plan to drop health care coverage for our employees …. are purely speculative and misleading") but also, weirdly, from HHS Secretary Kathleen Sebelius ("flat out wrong"). Why lie to protect McDonald's? Sebelius could have said, "Yes, McDonald's says it may not offer health insurance to its workers anymore. But what they call health insurance wouldn't meet the fiduciary standards of a second-rate Christmas club." Why didn't she say that?

Because McDonald's was smart enough to know where the Obama administration is vulnerable. "If you like your insurance plan, you will keep it," President Obama said right after he signed the health reform bill. "No one will be able to take that away from you." That had been Obama's mantra since the 2008 presidential campaign, because he knew people worried about losing what they had. For the most part, Obama kept his promise. But if HHS had stood up to McDonald's and said sorry, paying no more than $2,000 in medical benefits is not our idea of insurance, and if McDonald's, as a consequence, had stopped offering its preposterously stingy mini-med plan, then McDonald's would arguably have won the right to call Obama a liar. Simply because Obama never thought to add the eminently reasonable caveat, "unless, of course, your health plan is utter crap.""

http://www.slate.com/id/2275877/

Posted by: jnc4p | February 4, 2011 12:14 PM | Report abuse

Paul Ryan said that the Health Care Insurance System was not working. He said so back in the fall of 2009. He also said that Republicans failed to Reform Health Care, when they had the power, and they should have done so.

He also said, that he, and several of his colleagues had Reforms ready to implement. This was back in the fall of 2009.

Here we are; in Feb. 2011. The Republicans have control of The House. They voted to repeal the Health Care Reform bill, but they have not introduced any of those reforms that Ryan said he had on the shelf, fifteen months ago.

Where is the beef Paul Ryan. Where is your reform bill now. You said you had it ready to go, over a year ago. Were you just telling another one of your Republican Big Lies?

Where's The Beef Paul.

How are you going to pay for covering people with pre-existing conditions, when the young and healthy will not be paying into the coverage pool?

Where Is The Beef Paul Ryan?

Posted by: Liam-still | February 4, 2011 12:15 PM | Report abuse

@JennOfArk

"Some people think it's a real gotcha to point to the president's statement, but there are at least 100 million people in the country who know that "keeping the plan they like" was never in their hands before ACA either."

Then he shouldn't have made the promise to begin with.

More substantively, he shouldn't have asserted that the changes the health care law made weren't going to significantly disrupt the health care market, including possibly making some plans disappear.

Posted by: jnc4p | February 4, 2011 12:19 PM | Report abuse

Never mind the crap about McDonald's may drop providing health insurance.

If people want to stay healthier, they should drop McDonald's from their diet.

I like that new McDonald's campaign:

Not only do we sell unhealthy products, but we will also leave our workers sick.

Posted by: Liam-still | February 4, 2011 12:21 PM | Report abuse

@Liam-still "Never mind the crap about McDonald's may drop providing health insurance."

So the "Big Lie" wasn't so big after all?

Posted by: jnc4p | February 4, 2011 12:24 PM | Report abuse

jncp - Obama never said "I'm going to force your employer to continue to carry the exact same coverage you have now."

It's essentially a very weak-tea argument, because most people have never had much control over what type of insurance, if any, they have. It's also a dishonest reading of his remarks, IMO. Obama said if you like what you've got, you can keep it. In other words, no one's going to force you to buy into a public plan (that's when that statement dates to - before the death of the public option). He didn't say that what you've got right now as a private plan is guaranteed to never change, that he would prohibit employers from changing plans, and if he had, it would be just one more thing conservatives would scream about.

Posted by: JennOfArk | February 4, 2011 12:30 PM | Report abuse

Again, for the Terminally Bewildered: AKA Tea Party/ Stupid Koch Suckers:

President Obama said: If you like your present plan, you are free to keep it.

He never said that he was going to run the Insurance Companies, and force them to never change your plan, or drop it.

Make up your mind, Stupid Koch Suckers. Are you now actually lamenting that President Obama has not taken over The Private Insurance Cabal, and ordered that your Insurance Plan be never changed, by them?

That would be government take over, wouldn't it be.

Pull yourself up by your bootstraps, get your arses in gear; and do research until you find the best plan you can afford under your beloved private insurance system.

President Obama is not going to make the Insurance Companies issue the policy that you would like to have.

It seems like a lot of you told The Big Lie for so long, that you actually ingested it yourselves. Suckers!

Posted by: Liam-still | February 4, 2011 12:33 PM | Report abuse

jcnp:

""More fundamentally, you can't do all three of these at the same time:

1. Cover (almost) everyone
2. Reduce costs
3. Everyone who likes their current plan gets to keep it.

One of the three has to give.""

I was saying precisely this, repeatedly, over a year ago right here on this board. The progressives here wanted no part in hearing or understanding it. I doubt times have changed much.

Posted by: ScottC3 | February 4, 2011 12:33 PM | Report abuse

President Obama is not going to make the Insurance Companies issue the policy that you would like to have ---

that's right, he's making them issue one that I don't want and have to pay more for.

PPACA mandates a great deal of benefits that insurance companies must provide. I have no interest in them and would rather not pay for it in the form of increased premiums. I was perfectly happy without "free" preventive care and a lifetime cap. PPACA also requires mental health and substance use disorder services are a part of the essential benefits package. not interested.

Posted by: NoVAHockey | February 4, 2011 12:45 PM | Report abuse

Paul Ryan promised to have all those with pre-existing conditions, covered, while not requiring the young and healthy to contribute to the coverage pools.

ScottC. keeps on turning a blind eye to that promise, because he knows it cannot be done.

None of his something has to give when Paul Ryan is the one who created a Catch22.

Call Paul Ryan and ask him where is the reform plan he claimed to have ready, back in the fall of 2009.

Ask him; Where's The Beef Paul, and how are you going to pay for treating all the sick, without having the young and healthy paying into a coverage pool?

Republicans run The House Now, so it is Paul Ryan's turn to pass the reform that he lamented about not having passed, when they last had the chance. He has it again, and again he is not doing a damn thing about it. How hard could it be, for him to reach up on the damn shelf, and dust off his already prepared reform bill?

I think he was just Telling The Big Lie, and he never had any such bill ready.

Posted by: Liam-still | February 4, 2011 12:46 PM | Report abuse

@JennOfArk "jncp - Obama never said "I'm going to force your employer to continue to carry the exact same coverage you have now."

It's essentially a very weak-tea argument, because most people have never had much control over what type of insurance, if any, they have. It's also a dishonest reading of his remarks, IMO. Obama said if you like what you've got, you can keep it. In other words, no one's going to force you to buy into a public plan (that's when that statement dates to - before the death of the public option). He didn't say that what you've got right now as a private plan is guaranteed to never change, that he would prohibit employers from changing plans, and if he had, it would be just one more thing conservatives would scream about."

I would argue that the tax on "Cadillac Health Insurance Plans" included in the ACA is specifically designed to get rid of those types of plans and directly contradicts the promise. I believe this takes effect in 2018.

http://www.kaiserhealthnews.org/Stories/2010/March/18/Cadillac-Tax-Explainer-Update.aspx

http://articles.cnn.com/2010-01-14/politics/health.care.negotiations_1_health-care-health-care-afl-cio-president-richard-trumka?_s=PM:POLITICS


Posted by: jnc4p | February 4, 2011 12:47 PM | Report abuse

jnc4p - whatever you believe the intent is, the fact is, Cadillac plans aren't being outlawed; they're being taxed. They are a form of compensation, you know. If you've got a plan with a low deductible and no copay that covers pretty much everything and your employer is picking up the tab, you're at least being compensated by the amount that the average person pays in deductibles and copayments each year.

Again, Obama isn't forcing anyone's hand here. The choice is the employers'. Given that these generous plans usually only go to executive types, I predict the employers will up executive salaries by the amount needed to cover the taxes. They always find a way to make things ok for those guys.

Posted by: JennOfArk | February 4, 2011 12:54 PM | Report abuse

"...I think he'll do so because he, like most Republicans, probably hates the law and wants to see it repealed."

Is that the argument of a "great" legal mind and Supreme Court Justice? Scalia, Thomas, Alito and Roberts are jokes they are making a mockery of the SCOTUS.

Posted by: jillcohen | February 4, 2011 12:55 PM | Report abuse

Kaiser. Hah,,

I knew it. You are an Insurance Cabal Plant. That is why you always show up to push their line, when ever the Health Care bill is being discussed.

Posted by: Liam-still | February 4, 2011 12:55 PM | Report abuse

@Liam-still "President Obama said: If you like your present plan, you are free to keep it.

He never said that he was going to run the Insurance Companies, and force them to never change your plan, or drop it."

His actual remarks were pretty non-equivocal:

"So let me begin by saying this: I know that there are millions of Americans who are content with their health care coverage – they like their plan and they value their relationship with their doctor. And that means that no matter how we reform health care, we will keep this promise: If you like your doctor, you will be able to keep your doctor. Period. If you like your health care plan, you will be able to keep your health care plan. Period. No one will take it away. No matter what."

President Obama - June 15, 2009

http://www.nytimes.com/2009/06/15/health/policy/15obama.text.html?pagewanted=3

"Keep Your Insurance? Not Everyone.
Obama's claim depends on what employers would likely do under several legislative scenarios. "

"The legislation in Congress, however, would require employers to offer coverage (the so-called "employer mandate"), and it provides penalties for those who don’t contribute to their employees’ insurance, as well as subsidies to entice small businesses to offer coverage. Still, the CBO estimated that under the House bill, some firms, likely those with lower-wage employees, would decide to stop offering insurance. The mandate penalty might cost them less than providing coverage, and their low-wage workers would be eligible for federal subsidies to help them buy their own coverage through the exchange. The CBO estimated that "in 2016, about 3 million people (including spouses and dependents of workers) who would be covered by an employment-based plan under current law would not have an offer of coverage under the proposal."

So, can you keep your insurance under the health care proposals in Congress? Answer: It depends."

http://www.factcheck.org/2009/08/keep-your-insurance-not-everyone/

"Barack Obama promises you can keep your health insurance, but there's no guarantee"

"It's not realistic for Obama to make blanket statements that "you" will be able to "keep your health care plan." It seems like rhetoric intended to soothe people that health care reform will not be overly disruptive. But one of the points of reform is to change the way health care works right now. So we rate Obama's statement Half True."

http://www.politifact.com/truth-o-meter/statements/2009/aug/11/barack-obama/barack-obama-promises-you-can-keep-your-health-ins/

"Are you now actually lamenting that President Obama has not taken over The Private Insurance Cabal, and ordered that your Insurance Plan be never changed, by them?"

No, I'm arguing Obama was dishonest when he promised that he could:

1. Cover (almost) everyone
2. Reduce costs
3. Everyone who likes their current plan gets to keep it.

Posted by: jnc4p | February 4, 2011 1:00 PM | Report abuse

"Kaiser. Hah,,I knew it. You are an Insurance Cabal Plant. That is why you always show up to push their line, when ever the Health Care bill is being discussed."

It's official. He doesn't have a clue. If you don't know the difference between the the Kaiser Family Foundation, a respected and hardly a right-wing research and policy shop, and Kaiser Permanente, it really makes it difficult to take anything even remotely seriously.

Posted by: NoVAHockey | February 4, 2011 1:01 PM | Report abuse

Kagan is going to be forced to recuse herself.

So, even if Kennedy sides with the liberal justices, a 4-4 deadlock means that the Supremes will defer to the decision made by the lower court, meaning the circuit court which handled it before them.

That will be the 11th Circuit, based in Atlanta and covering Florida, Georgia, and Alabama.

*VOID*Game Over*

Posted by: KaddafiDelendaEst | February 4, 2011 1:05 PM | Report abuse

@Liam-still "Kaiser. Hah,,

I knew it. You are an Insurance Cabal Plant. That is why you always show up to push their line, when ever the Health Care bill is being discussed."

Blame Google for the Kaiser quote. It was the first hit on "Cadillac plans" with detailed facts.

More substantively, why are you defending a law that essentially forces people to become customers of the "Insurance Cabal"? I would have thought you would be opposed to it given the lack of a Public Option?

Posted by: jnc4p | February 4, 2011 1:06 PM | Report abuse

Respected by Right Wingers when ever the write something that the spreaders of The Big Lie, feel they can apply to bolster the big lie.

Again. Paul Ryan said the old system was not working. Try calling him out. Strange how none of you Right Wingers want to ask him where is the plan he claimed he already had on hand, over a year ago.

He said he will require coverage for all sick people, while not requiring healthy people to pay into the coverage pools.

When you put the heat on that double talking , for to now walk the talk, then I will consider that you are sincere, but so far, you have all just shown yourself to be just a bunch of dishonest wankers.

Posted by: Liam-still | February 4, 2011 1:08 PM | Report abuse

Liam-

Your tone belies your inability to engage in a civil discussion about important issues. You should be mostly ignored. I guess you didn't hear the calls for civil debate coming, mostly from your side, after the tragic events in Arizona. I bet you were screaming about the hostile rhetoric of the right after the attacks, too. You should be ashamed calling people names when they are engaging you in a discussion of this nature.

Posted by: mobrien83 | February 4, 2011 1:11 PM | Report abuse

I have no intention of showing any respect toward those who kept on using The Big Lie tactic.

I have no respect for any of you, who remained silent when the Republicans were pushing their Death Panels, and Killing Our Grannies., Big Lies.

The same goes for all of you who remained silent, while those Birthers found a warm welcome in your party, and when they were calling President Obama a Muslim, A Socialist, A Nazi.....

I have more respect for sewer rats, than I do for people who engage in such use of The Big Lie tactic.

Posted by: Liam-still | February 4, 2011 1:18 PM | Report abuse

Among the variety of incorrect arguments advanced by the left on behalf of their latest power grab, Obamacare, is that something must be done to offset the cost of uncompensated care being provided to the uninsured.

That argument is nonsensical to the point of low comedy. The simple fact is that we, the citizens ALREADY absorb that cost. It is built into the price of every interaction we have with the health care system.

To bring this down to the level that even dogmatically blinkered liberals can hope to fathom I'll use the example of a retail store. Among the costs that must be covered by the retail price of the items for sale is the cost of pilferage, "inventory shrinkage" or just plain theft. Shop lifters take everybody's money. It is just that simple.

It is the same with health care. When an uninsured person presents for care, providers provide it. Of course laws like COBRA and EMTALA mandate this but recent changes in IRS 990 filing rules also impacted this arena.

Now not for profit hospitals must provide, on their 990 filings a numerical measure of the amount of charitable activity they provided for the year being reported. Hospitals provide a significant amount of charity care already, much of it to patients being admitted electively.

since hospitals are already treating the uninsured, and the cost of that is reflected in their fees and the reimbursements they recieve from commericial insurance companies, we, the responsible citizens who work and have coverage are already paying the cost.

so when Obama's loyal minions talk about this they are simply saying that the current level of charity we freely provide is insufficient because it didn't result in the formation of hundreds of new bureaux and boards that must be staffed with political appointees and union members.

We, the people, with the nerve to take of ourselves without government intervention simply don't get it. It isn't enough. We must fund a huge overbearing government that is designed to drive privately inspired good works away.

so spare us the "uncompensated care" argument.

Posted by: skipsailing28 | February 4, 2011 1:19 PM | Report abuse

Liam- I respect your opinion, with which I disagree, but your way of expressing yourself is a symptom of the vitriol that is tearing this country apart.

Posted by: mobrien83 | February 4, 2011 1:22 PM | Report abuse

The climate of vitriol was stirred up and nurtured by Right Wing groups, including The Koch Bros, and Faux News.

The Big Lie was the weapon they used over and over.

I have had it with Democrats being punching bags, and am not going to any longer fall for that old trick of unilateral disarmament. Rush and his many clones spew vitriol day after day to the masses, and that will not stop, should we Democrats continue to be muted and well mannered.

Muzzle your huge kennel of Vitriol Hounds, and then we can talk.

Posted by: Liam-still | February 4, 2011 1:31 PM | Report abuse

Liam-

I completely agree that rhetoric on the right is equally responsible. You are 100% correct about this.

Posted by: mobrien83 | February 4, 2011 1:35 PM | Report abuse

Unfortunately, we can't control or be responsible for the behavior of others. We can only point out when their behavior is inappropriate and try to set an example for others by the way we comport ourselves.

Posted by: mobrien83 | February 4, 2011 1:37 PM | Report abuse

Unfortunately, we can't control or be responsible for the behavior of others. We can only point out when their behavior is inappropriate and try to set an example for others by the way we comport ourselves.

Posted by: mobrien83 | February 4, 2011 1:39 PM | Report abuse

I am not accepting that lame excuse. We are not equally responsible. President Obama set a civil tone, from the very start, and The Republicans decided to wage a Big Lie smear campaign against him, and just say no to him on everything.

What was even worse was The Big Lie they kept telling the American People about what was in The Health Care Reform bill.

"Death Panels, to intentionally bump off all our grannies. For cripes sake, how much of a scumbag political party do you have to be, to start terrifying old people with A Big Lie.

Posted by: Liam-still | February 4, 2011 1:51 PM | Report abuse

All, John Thune's commments on repeal are quite remarkable:

http://wapo.st/eixVBf

Posted by: Greg Sargent | February 4, 2011 2:00 PM | Report abuse

@liam-still: ""Death Panels, to intentionally bump off all our grannies. For cripes sake, how much of a scumbag political party do you have to be, to start terrifying old people with A Big Lie.""

Like the one where Republicans were going to take away senior's social security and make them eat dogfood?

Posted by: Kevin_Willis | February 4, 2011 2:09 PM | Report abuse

I worked for the defense department and have health care and I got a notice the other day of the amount that was deducted for health care. With medicare and my Anthem (Blue Cross) the total comes to 7400 dollars per year. So, it isn't free at all.

I don't know if I was required to let the gov deduct that or not, but I am certainly glad I did because I have had two life saving operations even though I seldom used the insurance until I was retired.

Don't fight the mandate if you have good sense about you. Sooner or later all you healthy people are going to need it.

I recently talked to a retired VA state employee. He has had about as many life saving operations that I have and his state insurance is about the same as mine. He and I would both be dead without it.

If we all participate, the cost is naturally cheaper. Without it, companies will get rid of risky older people and hire the younger risk free types. I remember under Reagan there was a drive to get rid of older workers when the average grew to 39.

I wonder why Gov Christie of NJ says he pays 20,000 per year for each employee. As far as I know the feds don't pay anything in addition to the 7400 they take from my retirement each year.

Also, my insurance doesn't pay for dental and doesn't pay for the little blue pill that some insurance does

Posted by: LL314 | February 4, 2011 2:13 PM | Report abuse

Kevin,

When did Democrats run a national campaign, holding unruly town hall meetings, to claim that.

Many Republicans have openly called for privatizing social security, and if the money have been in Wall St. Funds back in the fall of 2008, I am sure that a lot of retirees would have to scrounge for scraps of food and shelter. The food banks were not able to keep up with the demand, even though old people still got their Social Security. Thank you Frankie Roosevelt, as the young girl in Paper Moon used to call him

Posted by: Liam-still | February 4, 2011 2:18 PM | Report abuse

More substantively, why are you defending a law that essentially forces people to become customers of the "Insurance Cabal"? I would have thought you would be opposed to it given the lack of a Public Option?

Posted by: jnc4p | February 4, 2011 1:06 P
======================================

Logical consistency is not one of Liam's strong points.

Posted by: Brigade | February 4, 2011 2:34 PM | Report abuse

Brigade is Plumline's very own Lobotomised version of Nelson Muntz.

He even believes that The Earth would have stopped tilting , if global warming were real.

Of course The people of Australia, who have been experience deluges, in regions that have always been arid, especially at this time of the year, know better than Nelson Brigade Muntz.

Posted by: Liam-still | February 4, 2011 3:54 PM | Report abuse

@mobrien: "Liam- I respect your opinion, with which I disagree, but your way of expressing yourself is a symptom of the vitriol that is tearing this country apart."

My kinda guy! But, people get riled up and want to get to off their chest. That's why they often come to places like this.

Posted by: Kevin_Willis | February 4, 2011 5:48 PM | Report abuse

If most healthy people opt out of purchasing insurance, the health care Insurance Industry, and most likely the Medical Providers system will collapse.

The Insurance Industry is based solely on having a large number of low risk, healthy people in their pools, to allow them to skim large profit margins, large salaries/bonuses, and operating expenses off the top of their premiums receivables. It is really a Ponzi scheme. Pay us when you are healthy, and we will drop you, if you look like you are going to start asking for a payout.

So who are the Republicans going to bat for, with their efforts to repeal the individual mandate? Isn't it mostly a bunch of free loaders, risk takers, or dead beats?

It has to be, or else the Insurance Companies would have already gone out of business.

So why are The Republicans going to bat for that minority of people, who just do not want to contribute their fair share?

They are still going to seek to medical care, as needed, but they just are not prepared to contribute to covering the over all costs of the system.

Should we also let them show up at restaurants, when ever they run out of food, and be allowed to eat for free?

I am not talking about people who are so poor they can not afford the premiums. The reform bill already addressed that issue. I am talking about people who can afford the premiums but do not want to pay anything for coverage, but still will seek medical care, when ever the get injured or become seriously sick.

It still strikes me, that all The Republicans are doing, is going to bat for that class of freeloaders.

Posted by: Liam-still | February 4, 2011 5:58 PM | Report abuse


I really don't think Greg Sargent likes to listen....


That is the FLAW IN HIS BRAIN.


Anyway, the Conservative argument is this:

There are State powers and Federal powers - the definition of this line is in the CONSTITUTION.


That is WHY we have a CONSTITUTION.


I seriously do not know why it is so difficult for people to understand this.

The Conservatives believe that health care is a power of the STATES. It is clearly on that side of the line.


WHERE do doctors get their licenses? The States.


Case closed.


NOW - let me give you a lesson. If the Federal government decides to "occupy" a certain area of powers, then by definition, the States are not ALLOWED to make laws in that area.

So, logically, if the Courts give the Federal government power in the area of health care, logically the power to give out doctors licenses goes to .... the Federal government.


THAT has never been done in the past 200 years. Health care has been the domain of the States for over 200 years.

ARE you to say that all the doctors' licenses for the last 200 years are INVALID? That ALL the health care laws of ALL the states have been passed in ERROR - and the Federal government should have been making health care legislation for the past 200 years???


That MUST be your position.

.

Posted by: RainForestRising | February 4, 2011 6:02 PM | Report abuse

Anybody who doesn't realize that Scalia reaches his conclusion and then constructs the reasoning to support it hasn't really been paying attention.

Posted by: pj_camp | February 5, 2011 12:57 AM | Report abuse

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