The New Yorker's Jeffrey Toobin: "Heavy Burden"

Jeffrey Toobin doesn't think the 'heavy burden' of defending the Affordable Care Act should fall on Donald Verrilli Jr, Solicitor General, who argued for the government last week that the individual mandate in the bill was constitutional. Toobin believes the 'heavy burden,' in light of judicial precedent for the last 70 years, lies with the States in proving the mandate is unconstitutional.

"Consider, then, this question, posed to Verrilli by Justice Anthony M. Kennedy: “Assume for the moment that this”—the mandate—“is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?” Every premise of that question was a misperception. The involvement of the federal government in the health-care market is not unprecedented; it dates back nearly fifty years, to the passage of Medicare and Medicaid. The forty million uninsured Americans whose chances for coverage are riding on the outcome of the case are already entered “into commerce,” because others are likely to pay their health-care costs.

"Kennedy’s last point, about the “heavy burden” on the government to defend the law, was correct—in 1935..."


Read more http://www.newyorker.com/talk/comment/2012/04/09/120409taco_talk_toobin#ixzz1qvlrQc94

Supreme Court Hears Case Against the Affordable Care Act

The dust is still settling inside the Supreme Court. With all arguments now present before the nine justices in the case against the Affordable Care Act, pejoratively dubbed Obamacare by its opponents, and with still so many railing against it, including the activist conservative judges currently sitting on the Court, and a near-equal chorus in and out of Washington, it bears a moment to step back and look at where things now stand.

With so much media focus on the Affordable Care Act, there are still wide misperceptions of what exactly the law will do. Many of these misconceptions center around a simple premise: “I don’t want to pay for someone else’s health insurance.” Think of Rush Limbaugh’s vitriolic attack on a Georgetown law student two weeks ago, ignorantly claiming this woman a “slut” because she wants the university to pay for her contraception since they mandate that she purchase health insurance through the school. Limbaugh displayed a complete and total lack of understanding of how contraception works, as well as how insurance companies under the Affordable Care Act are supposed to cover these basic medical needs. And it stands to reason this ignorance extends to his listeners’ understanding of the implementation of the individual mandate in the Affordable Care Act, whether intended by Limbaugh and other opponents of the ACA or otherwise.

It is the individual mandate at the heart of the case heard before the Supreme Court. The mandate is that every individual would be forced to get insurance, and if the government is justified in compelling an individual to purchase health insurance, what is the ‘limiting principle’ stopping the government from compelling people to buy broccoli, GM cars, or something else. Those who brought the suit against the Department of Health and Human Services argue that compulsion by the government violates individual freedom and is thus unconstitutional. The government argues that this mandate is non-compulsory because every individual gets sick and is in essence already a participant in the health insurance industry and cannot be compelled to join a group they are inherently a part, and that by the powers vested in the Commerce Clause of the Constitution, Congress has a right to regulate this industry and those participants therein.

That’s the arguments for both sides in a nutshell, but it doesn’t necessarily address the premise that one person is paying for another’s health insurance, i.e. the well-off are subsidizing the poor. This, sadly, is a simple talking-point hounded and harped by those opposed to the bill, and is grounded with no factual basis. The truth is no one is paying for another’s health insurance under the law. The individual mandate forces the person without health insurance to purchase insurance from a private supplier. So, in essence, this is assisting the free market. If the person fails to purchase health insurance, the government retrieves a fee from them off their yearly tax return. Here’s the kicker in all this: without the law, you, me, and everyone else are already paying for other people’s health insurance. When someone without health insurance walks into an emergency room, those visits are paid by other taxes. The government spends over $100 billion per year to cover the uninsured. The additional revenue of mandating all individuals to have some form of health insurance far outweighs these costs.



So how did these arguments go over in the Court? Mostly in accordance with pregame analysis. Conservative judges hit hard against the bill. The Liberal Justices hit back hard against the States. There were moments of trepidation on Day Two of the hearings when Donald Verilli nearly collapsed beneath the pressure of arguing before the Court and many reporters in the room thought for sure the bill would be struck down that very day. Luckily, the Liberal Justices were there to bail Verilli out, and he gathered himself up for the third day of arguments and delivered a more forceful defense of the law. But the Court is tilted in Conservative favor and it seems likely the bill rests on the pen of Justice Kennedy alone. To paraphrase a Robert Reich tweet: how is it democracy when the fate of 30 million people’s health insurance rests in one man’s hands? But it’s not completely lost for the individual mandate, nor health care reform overall. Even if the individual mandate was struck down, many analysts believe most or all of the rest of the bill can stand. Then again, many think the Affordable Care Act hinges directly on the individual mandate and that if the mandate goes, the entire law crumbles after. Would this spell complete doom for President Obama, to repeal his signature social legislation before the 2012 election? Hardly. Thousands, if not millions, of Americans have already benefitted from aspects of the law that have gone into effect, from college graduates having the ability to stay on their parents’ insurance until age 26, to millions of Americans now with access to coverage because insurance companies can no longer deny someone with a pre-existing condition, to many other benefits. More and more Americans are beginning to understand that this bill serves to help, not to hinder. Also, if health reform should fall, many do not think the private insurance industry could last. It would almost certainly open the door to a single-payer system, or Medicare for everybody, and that’s a win for us all.

Obamacare in Trouble

Jonathan Cohn is nervous that after today, Day Two of arguments before the Supreme Court in the case against the Affordable Care Act, the individual mandate will be struck down and very likely the entire law will fall with it.

"My first impression from day two at the Supreme Court: I was more confident yesterday than I am today. With the caveat that I know health policy a lot better than I know law, I can still imagine the justices upholding the individual mandate. But, at this point, I can just as easily imagine them striking it down.

"Tuesday's hearing was energized and contentious, from start to finish. But while the justices hammered lawyers from both sides with difficult questions, Solicitor General Don Verrilli seemed to struggle more than Paul Clement, attorney for the states. And although the liberal justices were able, more or less, to carry the case on their own, there are only four of them – and the conservatives number five..." continue reading here.