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Prediction: The Supreme Court, 7-2 (or maybe 6-3), will find PPACA, including the individual mandate, to be constitutional

And find is perhaps the operative word here, because they're each going to have to come up with their own (probably wildly diverging) reasons for supporting it.

My impression tallies with this one, the justices in order from most conservative to less conservative are: Thomas, Scalia, Roberts, Alito, Kennedy, Breyer, Kagan, Sotomayor, Ginsberg.

The "Four Liberals" - Breyer, Kagan, Sotomayor, and Ginsberg - will see that the PPACA, despite enriching Big Pharma, Big Hospitalization and Big Insurance, will actually help some people, possibly as many as a few million people. What liberal worth their weight in salt wouldn't want that? Also, they're all smart people and understand that the idea of insurance is to spread the risk across the broadest pool possible and therefore forcing everyone to pay through the nose for a crappy and fraudulent financial "product" keeping the individual mandate intact is essential.

Score: 4 for

Clarence Thomas is the misanthrope's misanthrope and this law will, in spite of all its flaws, help some people, possibly as many as a few million people. Clarence Thomas will find a way to be against this law on that reason alone, though if he's asked to give his reasoning he's awfully unlikely to just come right out and say I'm voting to strike down this law because I'm a fucking misanthrope, you idiot.

Score: 4 for, 1 against

Scalia is a contrarian and a limelight hog. Also a Federalist. He'll be against the law because, you know, Federalism. The fact that the states have a lot (a LOT) of leeway in setting up their exchanges, including that favorite shibboleth of the right, selling insurance across state lines, is not going to sway him. Besides, Obama is a Kenyan Muslim Socialist and The Right must be seen to be obstructing him at every turn; can't have just one lone, possibly rogue, obstructionist on The Supreme Court, the opposition has got to look more coordinated than that.

Score: 4 for, 2 against

Alito and Roberts, while carefully burnishing their "conservative" cred, are basically creatures of Big Business. Various sectors of Big Business are at loggerheads over who's going to get how much out of this law, but in the main, Big Business is going to get Big Buck$ if the law is upheld in its entirety. Alito and Roberts will find some kind of Tea Party-acceptable justification for accidentally appearing to be on the same side as the Kenyan Muslim Socialist.

Score: 6 for, 2 against

I think Kennedy's questioning was not liberty over broccoli! so much as it was forcing everyone to buy broccoli is over the top, so give me a better reason to force people to buy a crappy, fraudulent insurance "product." Count me among those who believe that Kennedy is going to throw individual liberty to the wind and go all acceptance of a practical post-New Deal conception of the federal power to regulate a national economy. Also, while he's a pretty smart dude, he may even fall into the insurance = health care = liberty trap.

Score: 7 for, 2 against

On the other hand, Kennedy may actually favor individual liberty over broccoli.

Score, in an alternate reality: 6 for, 3 against

Ginsberg is smart, and in some ways truly radical, and Sotomayor, the wise Latina, may wise up in time, and both of these women may go full-bore liberal and declare only Medicare and Medicaid and a National Health Service to be constitutional.

Score, in Dreamland: 4 for, 5 against

No votes yet


Submitted by lambert on

I think that the opportunity to force people to buy a corporate product is simply too great to miss. Think of the limitless possibilities!

Submitted by hipparchia on

the best, most succinct summing up of the situation at hand. of a lot of the situations at hand, as a matter of fact....

Submitted by JuliaWilliams on

would find against the ACA because the HIPI (health insurance pharmaceutical industry) sector will do just fine, or even better if this law is struck down, and they know it, and they would definitely like to send the message that there should be NO federal control over corporations (hurts "bidness", yannow). In addition, the same ideologues can also attack a perceived D (yes i know it's a Heritage Foundation construct, but it's the perception) construction, and it's an election year. I say 6-3 against.

Submitted by hipparchia on

i think there are enough loopholes in the law that big bidness :) wins more by keeping the law intact. but it still behooves them to keep screaming that this law is instead going to kill everything.

shargash's picture
Submitted by shargash on

I think partisanship, not constitutional principles or even ideology, will rule. I think there are good consitutional grounds for finding the mandate unconstitutional, but only if you're uninterested in expanding government power into new areas. And both mainstream liberals and mainstream conservatives are interested in doing exactly that. So on contitutional grounds, I'd say 7-2 in favor. On ideological grounds, you get liberals who want to help people and corporatists who want to help corporations, so maybe 8-1 or even unaninmous. On partisan grounds, however, you get 5-4 or 4-5.

So, I'm guessing we get a 5-4 (possibly 6-3) in favor of the mandate, largely along partisan lines, but with just enough corporatism to push it over the line.

Submitted by hipparchia on

that seems to be the majority opinion in the punditry, that the decision will fall along partisan lines.

i like lambert's summing up, that the opportunity to force people to buy a corporate product is too good to miss. which is why i think they're going to somehow craft a decision that's not "just barely" over the line.

letsgetitdone's picture
Submitted by letsgetitdone on

and the comments too. Don't really want to predict how it will turn out, but I think the discussion illustrates that there are many ways for the "liberals' to get the 5th vote they need to uphold. So, I, too, think it will be. (There I go predicting).

If, however, the "five horseman" [Pestilence (Thomas), War (Alito), Famine (Roberts), Death (Scalia), and Bullshit (Kennedy)] stick together and overturn the law, then the outcome will be worse for many millions and even fatal for many thousands; but it would give us another bite at Medicare for All. Expanding Medicare to everybody is easy to do under reconciliation, but O's probably awfully pissed off at the private insurance companies because of their public opposition to the mandates, they previously pressured him for.

Maybe if he wins again, an event I still think is very likely, and if the Ds take back the House, then he'll want to get some revenge. The guy's pretty bloodless, however, and I really don't think that revenge will motivate him. On the other hand, if people clamor for another, constitutional, health care bill, then that's what can they put on the table. If they expand Medicare to everybody, it won't kill the health insurance companies, immediately because there's still 20% and the drugs to pay for, so the companies can still have a role selling complete coverage to close that 20% and pharmaceuticals gaps. On the other hand, it would take a lot of pressure off the politicians.

Submitted by hipparchia on

making predictions!

yeah, i think obama will win a second term too.

as for the chances of medicare-for-all, striking down the individual mandate and keeping the rest of the law might open up possibilities for people to buy into medicare right away, if there's enough political pressure. that would be an excellent next step.

but yeah, it's fun to just speculate too.

shargash's picture
Submitted by shargash on

If they strike down the mandate and uphold the rest of the law, that puts the insurance companies in a bad spot. There WILL be further legistlation in that case, and pronto, and we'll get to see how badly the Ds sell us out on HCR II. Still, the trickster in me is hoping for exactly that outcome. I want to hear how the obots will justify Obama either adding a big giveaway to corporate interests or stripping out the actual good parts of the bill to appease the insurance companies.

tom allen's picture
Submitted by tom allen on

The Administration argued FOR stripping out most of the good parts, should the Court strike down the mandate, in order to appease the insurance companies. I don't see why they'd change their tune if just the mandate is ruled unconstitutional.

Excerpt: "In the event of an adverse ruling, the administration takes a peculiar view: that the law is “partially severable.” They say that if the court scotches the mandate, it should also eliminate provisions in the law guaranteeing that everybody will receive health insurance, regardless of prior health conditions. This reflects a certain policy rationale: that the health insurance system will crumble if people aren’t required to buy into it, and thus only sick people take advantage of the coverage guarantee."

Presumably the decision not to include a severability clause in the legislation was made to appease the insurance industry as well.

letsgetitdone's picture
Submitted by letsgetitdone on

so if the mandate is overturned, Obama's gong to be under pressure to say what he's going to do. If he tries to get the Ds to vote to let the insurance companies off the hook by cutting back the law and not replacing it with something else, I don't think they're going to vote with him. That may be the breaking point for them. On the other hand, if everyone jumps together to Medicare for All, then the companies are off the hook.

Submitted by hipparchia on

Still, the trickster in me is hoping for exactly that outcome.

heh. i can sympathize with that.

not sure the insurance death spiral would necessarily happen. a lot of people, given a big enough subsidy, would go out and buy insurance tomorrow, without waiting until they get sick. also, the insurance companies that participate in the exchanges will get to participate in risk adjustment pools, where companies that end up with "too many" sick people will be given money and companies that end up with "too few" sick people will have to give back some of their ill-gotten gains.

also, there are several payment "innovation" pilots in the law, for things like medical homes and coordinated care and integrated care and so forth, where "efficient" providers will be given bonuses. in anticipation of this windfall, insurance companies are already buying up doctors' practices and clinics and hospitals.

Submitted by lambert on

1. Because ObamaCare isn't rolled out

2. The argument assumes health insurance is not a defective product. But it is.

* * *

No matter, fuck the Democrats for taking hostages instead of putting the public good foremost. Because "you can't advocate for Medicare For All because those we cover with ObamaCare For Some are going to die" is, exactly and precisely, hostage taking.

letsgetitdone's picture
Submitted by letsgetitdone on

come from my analysis back when the law was passed. Remember, I opposed it then and still do. Here, I said:

5) The bill will not cover 30 million additional people, as the access bloggers and career liberals keep repeating. The subsidies are not indexed to rising insurance costs, and therefore insurance even with subsidies will become increasingly unaffordable. In my view, it's doubtful that more than 15 million will be covered. Since US population will be increasing over time, we can expect the total number of uninsured to grow over time, so even after 2014 and taking into account the 15 million additional people covered, we will still be looking at 35 million uncovered, and 35,000 fatalities per year due to lack of insurance.

So, 15 million would be covered and maybe 10 K fatalities would be saved, while allowing for population growth 45 - 50k would still be dying. This doesn't assume the ACA isn't a defective product. It is that's why only 10,000 would be saved and 15 million new people actually covered.

On this:

No matter, fuck the Democrats for taking hostages instead of putting the public good foremost. Because "you can't advocate for Medicare For All because those we cover with ObamaCare For Some are going to die" is, exactly and precisely, hostage taking.

I certainly agree, that's why I'm emphasizing the second chance on Medicare for All.

Submitted by hipparchia on

possibly as many as a few million.

insurance companies rake off 10, 15, 20% (or more) of the total spending, so it's in their interest to keep the overall spending high. 20% of big number is more than 20% of a small number. so to keep those dollars flowing, a fair number of people do actually have to end up getting medical care in the process.

of course, we could provide a lavish amount of medical care everybody, at reasonable prices, with medicare for all but that would hurt the fat cats so we can't do that.

Valley Girl's picture
Submitted by Valley Girl on

No way the middle ground will happen- strike down mandate, keep the rest.

5-4 to strike down. Leaves some hard choices for some. A strange bedfellows moment.

Against: Ginsberg, Breyer, Thomas, Scalia, Kennedy

For: Roberts, Alito, Kagan, Sotomayer.

jumpjet's picture
Submitted by jumpjet on

I could see Sotomayor also voting against. She seemed skeptical of the Solicitor General's arguments in her questioning, and she's voiced opinions in the past (like her questioning of corporate personhood) that hint at deeper leftism than Obama perhaps intended.

Submitted by hipparchia on

yours and valley girl's.

i've been secretly hoping, just in general and not just in the case of health whatever reform, that sotomayor is further left than obama might have thought.

Submitted by ubetchaiam on

That's strictly a media allusion that we should be dispelling. And there does seem to be forgetfulness of how loose -some would say easy- the 'rules' are to avoid any penalty for not paying the 'mandate'. Anyone really think some law clerk isn't going to bring that to the attention of the 'justices'?
And ,in this case, wouldn't a Roberts court stick to the 'Stare decisis' position re severability of contracts? And isn't the ACA a 'contract'?
And for an 'activist' court that is decidedly 'Republican' oriented in philosophy, wouldn't striking down ACA and thereby killing the 'centerpiece' of Obummer's legislative accomplishments be consistent with the 'Bush v. Gore' mentality?
I honestly have no idea what's going to occur but can see where the SCOTUS ruling against the legislation in most parts -like they did with the AZ immigration law- could be a very positive thing; just maybe -and I mean truly maybe- it might be the impetus needed to break Obummer out of his narcissistic, antisocial personality disorder.
But I doubt it.

Submitted by hipparchia on

my view is that the current supreme court is approximately half conservatives and half far-right-wing radicals.

i remember roberts making a big deal of his respect for stare decisis during his confirmation hearings, but i suspect that was just lip service to lull the democrats into thinking he wasn't a rightwing radical.

Submitted by lambert on

.... to "far-right-wing radicals."

I believe that describes the complete spectrum of our ruling class more accurately, including both legacy parties.

Submitted by ubetchaiam on

Yeah, and all Feinstein can do is express 'disappointment'. Seems ground for removal to me but I couldn't get elected dog catcher.

Submitted by MontanaMaven on

to treat, according to a book I've got on mental disorders. Mostly impossible, really. And yes, the trickster in me really wants the mandate struck down. FYI, I was once told by a therapist that I had "the Puck Syndrome" named after the mischievous fairy in "A Midsummer Night's Dream".

"Oh what fools these mortals be."