Patterico's Pontifications

12/13/2010

Breaking: Virginia Judge Strikes Down “Parts of” Obamacare (Update: The Opinion, FULL Analysis)

Filed under: General — Aaron Worthing @ 9:30 am

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Update: Legal Insurrection comes through with the opinion.  You have to use that annoying scribd thing, but beggars can’t be choosers.  No analysis yet, but you can read for yourself.

Update (III): Some analysis.  See below.  Update (IV): Now full analysis.

Literally just got a breaking news email from CNN: “Federal judge rules unconstitutional parts of Obama health care law. Justice Department expected to appeal.”  This is almost certainly the Richmond Virginia case, and not the Liberty University case from a week or so ago.

But this is extremely prelimary and we should take it with a grain of salt.  There was a significant issue as to whether any of the health care law could be severed from the main, and that is the kind of issue that reporters miss.  I mean not just out of bias, but they innocently miss this kind of issue.  Come back for updates when I get my meaty paws on the opinion, or at least more thorough reporting.

And of course this is the first victory after two district court defeats, so let’s not get too excited.  It does increase the chances of a Supreme Court appeal, although I suspect it was already virtually certain to end up there anyway.

Update: Let me thank all the people who emailed me about this.  I saw on my own, but I still appreciate it.

Update (III): I will go silent on the issue until I finish my lunch and finish reading all of it, but it looks like the mandate and anything referencing the mandate are severed out of the law.  I have literally no idea how much that is.  The relevant ‘graphs:

Finally, in evaluating severability, the Court must determine whether in the absence of the severed unconstitutional provision, Congress would have enacted the statute…. [This] element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote. It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to heath care, without Section 1501. Even then, the Court’s conclusions would be speculative at best. Moreover, without the benefit of extensive expert testimony and significant supplementation of the record, this Court cannot determine what, if any, portion of the bill would not be able to survive independently.

Therefore, this Court will hew closely to the time-honored rule to sever with circumspection, severing any “problematic portions while leaving the remainder intact.”…  Accordingly, the Court will sever only Section 1501 and directly-dependent provisions which make specific reference to Section 1501.

Which I suspect means that many provisions that were financially dependant on the mandate will remain in place.  So if this ruling stands, then the law will have to amended or repealed to avoid significant stress on the health insurance industry.  As in, if they don’t do something, the industry might go bankrupt.  I have said before that I don’t believe that this is the right approach to severability.

The concern, however, is that with a divided Congress and a President devoted to this law, will they be able to do anything to stop this in time?

And if nothing happens and the health insurance industry is bankrupted, would that be in the left’s eyes a bug, or a feature?

Update (IV): I read the opinion, and there is little that is surprising here.  There is the familiar debate about whether the penalty is a tax or not, and the analysis is very similar to Judge Vinson’s analysis in the Florida case, which I discussed here.  And then there is the usual question of whether inactivity can be characterized as economic activity.  This time the court said, no, but the analysis was a little bit interesting.  The court seemed to concede that under some strained definition of the terms, a refusal to buy health insurance was “economic activity,” but then brushed it aside with one word: “traditional.”  In other words, sure you could come up with some slick argument that this is really activity, but traditionally this is not how the term has been understood.  I think given the hash the Supreme Court has made out of the commerce clause, this is about as much as we could hope for a court doing without actually overturning Wickard v. Filburn (which held that growing crops for personal consumption was interstate commerce).

Also, I have long said (but I don’t think here at Patterico’s) that the courts are also concerned that Congress should not be allowed to do anything it wants under the commerce clause.  There has to be a logical limit to their power.  And that concern is echoed in the opinion in this line: “This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence.”

But bluntly I am really not sure this decision is good news if it is upheld exactly as is.  I have long said that without the mandate, health insurance companies will go bankrupt.  For instance, consider the rule with pre-existing conditions.  Health insurance, like all other forms of insurance, depends on cultivating a large number of policy holders whose costs are less than their payments.  Yes, your insurance company might cover a few doctor’s visits and a few pills, but the real purpose in health insurance is to guard you against a serious illness that costs you far more than your premium.  So its almost like as if me and 99 of my closest friends said this, “we know that in the next year one of us will get really seriously ill, and will not be able to afford to pay the bills.  And if that happens, the rest of us will pay your bill.”

It’s the same concept as with fire insurance.  Most of us will never have a fire in their house.  But we buy fire insurance because we know it could happen to us, and if it does, we have this agreement that provides for compensation in that event.

But rules like telling insurance companies that they cannot exclude people for pre-existing conditions makes hash out of the entire concept.  Why would any person rationally choose to pay a monthly fee for insurance if they can just pay nothing, and wait until they get sick and then buy health insurance?  Its like asking to buy fire insurance after your house burned down and demanding that they cover the fire you just had.  It makes no economic sense.

The mandate was vital to making sure that these kinds of provisions didn’t bankrupt the insurance companies.  I mean, that is not just my opinion.  That is what Sebelius argued to the court:

The core of the Secretary’s primary argument under the Commerce Clause is that the Minimum Essential Coverage Provision is a necessary measure to ensure the success of its larger reforms of the interstate health insurance market.s The Secretary emphasizes that the ACA is a vital step in transforming a currently dysfunctional interstate health insurance market. In the Secretary’s view, the key elements of health care reform are coverage of those with preexisting conditions and prevention of discriminatory premiums on the basis of medical history. These features, the Secretary maintains, will have a material effect on the health insurance underwriting process, and inevitably, the cost of insurance coverage. Therefore, without full market participation, the financial foundation supporting the health care system will fail, in effect causing the entire health care regime to “implode.” Unless everyone is required by law to purchase health insurance, or pay a penalty, the revenue base will be insufficient to underwrite the costs of insuring individuals presently considered as high risk or uninsurable.

So what happens if the mandate is gone?  Well, then Congress must either repeal the law or come up with another way to balance the books, and Obama must go along.  And what if they can’t get this done?  Things are not exactly going well on the taxation front, are they?  So what if they don’t pass it.

Oh, and what if the entire health insurance industry implodes?  Will the Democrats hope to argue that this proves that we need a public option?

And could that have been the idea all along?

My tendency is to avoid the most paranoid answer to these kinds of questions.  I have argued before that their conduct seems much more like inattention.  I mean you do not pass the “_____ Act of _______” because you doing a careful job of doing things.  So, I am more likely to think the Democrats were like Phil Hare and they didn’t care about the constitutionality of this law, and if they gave it any thought at all, they actually convinced themselves they could do it.  But you have to wonder if they were really that clueless.  Or were they, as Dustin once dubbed Elena Kagan, “stupid like a fox.”

And even if they didn’t intend for this situation to occur, will enough liberals in Congress seek to take advantage of it to destroy the health insurance industry?

Mind you, this impending doom is used by the Obama administration to argue that it is within their power.  I, on the other hand, believe that we should presume that Congress does not intent to intentionally bankrupt an industry and therefore I believe it justifies striking down most, if not all, of Obamacare.  But the court didn’t agree with either perspective, and picked a middle course that is in some ways actually worse than the two extremes.

I would further add that I have previously pointed out that this law also violates the right to boycott under the first amendment, another good reason to strike it down and for my money the real reason why Obamacare is doomed is because it would undermine Lawrence v. Texas.

So, in short, today I am not entirely happy.  What we need is either for Congress or the Courts to knock down most if not all of this ugly thing and not just one part.

[Posted and authored by Aaron Worthing.]

113 Responses to “Breaking: Virginia Judge Strikes Down “Parts of” Obamacare (Update: The Opinion, FULL Analysis)”

  1. It’s so rare to see someone note that the commerce clause doesn’t mean ‘everything and anything’.

    I sure hope the Court is sane and sober when they evaluate this. The federal government was never meat to have this much power, and it’s time to stop the constant march of expanding commerce clause powers.

    Breyer, of course, will vote however the hell he feels like, on the grounds that if something was put in the constitution merely to induce states to ratify it, it’s his place as philosopher king to overrule it.

    Breyer has established himself as the worst Justice since Black.

    Dustin (b54cdc)

  2. Dustin

    Yeah, I was almost done with a post on breyer’s idiocy (I am certainly you have seen the same article i did), when this breaking news came in. So you will see more on breyer later.

    What is really scary about what Breyer said was it would apply to any of the bill of rights.

    Aaron Worthing (e7d72e)

  3. What is really scary about what Breyer said was it would apply to any of the bill of rights.

    I don’t want to thread jack. This is huge news for Obamacare.

    Repeal and replace could be in the works, at least to some extent. I shouldn’t get my hopes up.

    Obama probably shouldn’t bother playing the lottery, given how his fortunes have held up lately.

    Dustin (b54cdc)

  4. It does seem to follow statutory authority, unlike
    the other two decision, but the ‘severability’ claim
    seems strained.

    narciso (6075d0)

  5. Wow, you mean word’s like ‘is’ and ‘interstate’ can have a universally accepted meaning?

    How contrarian.

    gary gulrud (790d43)

  6. There was some discussion last week that the mandate is not severable from the rest of the legislation. It was “an oversight” but there is no severable clause in the bill.

    Mike K (568408)

  7. Mike,

    that’s true. I had a post on it, when the NYT put in that spin. and see the update discussing the issue of severability.

    Aaron Worthing (e7d72e)

  8. I am agnostic on this issue, for now.

    There is no clear cut precedent that is dispositive on the issue of the insurance mandate (unlike Loving v. Virginia in regards to interracial marriage, and Baker v. Nelson in regards to same-sex marriage).

    There was some discussion last week that the mandate is not severable from the rest of the legislation. It was “an oversight” but there is no severable clause in the bill.

    Why can’t the rest of the legislation work without the mandate?

    Michael Ejercito (249c90)

  9. Ejercito, because of the provisions that require insurance companies to accept pre-existing conditions.

    SPQR (26be8b)

  10. Racist anti-science deniers. RomneyCare! Hypocrites.

    JD (109425)

  11. the important thing is that our sad little economy will now have the certainty it needs to move forward

    happyfeet (a55ba0)

  12. Ejercito, because of the provisions that require insurance companies to accept pre-existing conditions.

    And why is a mandate necessary for that to work?

    Are there similar mandates for auto insurance and fire insurance?

    Michael Ejercito (249c90)

  13. Ejercito

    > And why is a mandate necessary for that to work?

    > Are there similar mandates for auto insurance and fire insurance?

    Well, you are putting your finger on exactly the problem with covering pre-existing condition. Try this. don’t buy fire insurance. then if your house burns down, try buying it then, and ask them to cover the fire you just had. Let me know how long it takes for them to stop laughing.

    Insurance depends on a large number of people buying it who are not going to need it. As in, “I don’t think I will have an auto accident in the next year, but I will buy this insurance so that if I should be unfortunate enough to get in an accident, I am protected.” So let’s say that 100 people pay $10,000 a year for insurance. That raises $1,000,000. Now say one of that hundred has a $500,000 auto accident (including liability to others, damage to car, hospitalization, etc.). Then that pool of customers in essence pays for that one person, and $500K is left over to pay for the insurers themselves.

    You cannot expect to pay $800 a month for insurance and magically get back $50,000 of medical coverage. And yet that is what happens if you do not exclude people with a pre-existing condition. They are allowed to not buy insurance, and wait until they get sick, and then they buy the insurance.

    So Congress says, “we would like to make you stop refusing coverage for pre-existing conditions.”

    And the insurance industry replied, “are you nuts? Why would anyone buy insurance if they knew they could get away with waiting until they were sick in order to buy it?”

    And Congress, or at least the democrats said, “Ah, don’t worry! We will force everyone to buy insurance. We got ya covered!”

    Do you see the problem, now?

    Aaron Worthing (e7d72e)

  14. maybe the judge decided leaving the rest of the machine running would increase the pressure to get the law repealed?

    redc1c4 (fb8750)

  15. And yet that is what happens if you do not exclude people with a pre-existing condition.

    That is exactly what happened in Washington state when the leftards eliminated pre-existing condition denial. The ultimate effect was the insurance companies ended selling individual insurance until the state was forced back into sanity (as always, a brief respite when dealing with those so greedy as to insist that “what’s mine is mine and what’s yours is mine too”)

    iconoclast (bbd5ee)

  16. Novice question: Were the first two judges just passing the dead raccoon off, or did they really think the mandate had a prayer?

    gary gulrud (790d43)

  17. They could keep the pre-existing conditions exclusion but shorten the look-back period, which is usually one year. Make it 30 days.. But then that makes fraud harder to prove. Or is this what ObamaCare essentially did?

    It seems unconscionable that pre-existing could be eliminated entirely. Retarded, in fact. But popular for sure.

    carol (5a5d33)

  18. Ejercito, you can’t buy auto insurance after an accident to cover the accident.

    SPQR (26be8b)

  19. Nikki Haley asked Obama today, point blank, what would it take to get her state the ability to opt out of the mandate, and Obama’s most obvious reply was ‘coverage for preexisting conditions’.

    They will never let that one go, because it implies some kind of social justice right that they know tears down the rest of the system, unless they force people to buy in.

    Dustin (b54cdc)

  20. Novice question: Were the first two judges just passing the dead raccoon off, or did they really think the mandate had a prayer?

    I’m sure the first two judges believed what they wrote just as honestly as this judge.

    This is an issue of first impression. All judges agree about the legal precedent: If the economic activity in question substantially affects interstate commerce, then Congress has the power to legislate under the Commerce Clause.

    The problem is whether or not “refusing to buy health insurance” is deemed an “economic activity” even if the result of the refusal means shifting the costs to market participants.

    There are two legitimate sides to the argument, so I think all judges are acting in good faith, even though they come out differently.

    Kman (d30fc3)

  21. “If the economic activity in question substantially affects interstate commerce, then Congress has the power to legislate under the Commerce Clause.”

    It’s really interesting to contrast this point with the long point AW made above about the… substantial effects on the insurance market of people deciding to buy insurance only when needed.

    imdw (c8c33d)

  22. “And if nothing happens and the insurance industry is bankrupted, would that be in the left’s eyes a bug, or a feature?”

    A.W. – Suggested clarification. I think insurers would only stop writing health insurance and the insurance industry as a whole would survive, unless somehow states are able to force insurers to continue offering insurance at a loss, which is not in the interest of policyholders when you think about it from a regulatory perspective. Why would regulators want to endanger the claims paying ability of insurers under their supervision in order to force them to write unprofitable business? Makes absolutely no sense.

    This development, assuming severability is there in some form, is definitely a feature for the left. Welcome to the world of the government option, government run healthcare, the public option, or whatever Obama could not get the first time around.

    daleyrocks (c07dfa)

  23. Michael – Health insurance is to automobile insurance as elephants are to oboes.

    JD (0d2ffc)

  24. The consequences of the HMO and ERISA law, continue
    apace, the preexisting condition exemption is the minefield,

    narciso (6075d0)

  25. I am confident that Justice Breyer will find solace in the penumbras and emanations of the constitution of Guyana that doing nothing in multiple areas of one’s life constitues ginormous and constant interstate and international commerce.

    daleyrocks (c07dfa)

  26. Daley

    you were right, it did need clarification to make it clear that i just mean the end of the health care industry.

    Aaron Worthing (e7d72e)

  27. Section 1501 is the top part of the iceberg, but the largest hull shredding part is in the enacting
    language, and other areas, large enough to steer the titanic through.

    narciso (6075d0)

  28. There is little to no threat of the insurance industry imploding. In fact the crisis you are worried about might actually be a healthy thing.

    Pre-Ex doesn’t effect Medicare, Medicaid, and the VA. Those plans will continue just as poorly as they do now. In the private insurance market 80%+ of that is group insurance. Of that 80% 50%+ is self funded, these regulations do not apply to the reinsurance that self funded plans buy.

    It is already expected, and we are already seeing, a large movement towards self funding. No sane employer wants to be in the exchange unless they are so unhealthy they have no choice. Worst case scenario the 13 million people with individual policies lose them and another 10-20 million with group insurance are priced out of the market. Bad for those people but no risk to the entire system.

    If we were forced by this calamity to scrap all of our current community issue, guarantee issue, small group reform, mandates, and other cost increasing regulations in the fully insured market a more logical system that prioritized good basic catastrophic coverage could replace it.

    Nate Ogden (18883a)

  29. Until it is deciphered what sections of the law are affected by the ruling, I doubt if President Clinton and his cronies are very happy with the decision.

    daleyrocks (c07dfa)

  30. Nate – Are you saying that a corporation which self-funds its health insurance program for employees because it doesn’t want to trade dollars with an insurance company is not subject to the rules of ObamaCare? Even if the coverage is set up with a high deductible or captive of the employer behind the underlying policy? Really? Who issues the basic health insurance policy to the employees? Is that entity covered by ObamaCare?

    daleyrocks (c07dfa)

  31. Bush appointed judge strikes down the mandate upheld by two other federal court judges — in Virginia and Michigan.

    JT (a5a81f)

  32. How many names do you plan on posting under, William the midget plagiarist Yelverton?

    JD (109425)

  33. When Republicans proposed an individual mandate, it was ok.

    JD, how’s your denialism working tonight?

    JT (a5a81f)

  34. So, you are going with the coward route, again. Own your idiocy, beeyotch. The idea that a R at some point in time supported some craptacular idea compels me to do so is laughable, Yelverton.

    JD (6e25b4)

  35. Just so everyone is clear, the person posting as JT is the same person that posted as leo, and pam, and bill, and w, and other various names. He is a cowardly dishonest plagiarizing hilljack midget named William Yelverton, the pride of MTSU.

    JD (0d2ffc)

  36. JD, what name would you like me to post under? How about this, I’ll post under my real name if you post under yours, and we both must use our website address. Deal? Or are you a coward?

    JT (a5a81f)

  37. what name would you like me to post under?

    How about you just pick ONE and stick to it, instead of using multiple names? Is that such a hard thing to do?

    Some chump (4c6c0c)

  38. My name is JD. Yours is William Yelverton. You have a website you and your multiple personalities read. I do not. You sock puppet a variety of people including, but not limited to me, noyk, me, your “girlfriend”, and once even your dad. You are a habitual douchenozzle. Me, not so much. You are ashamed of yourself, so hide behind sockpuppets. It is rather pathetic.

    JD (6e25b4)

  39. I get the statistical idea that the health insurance companies could go bankrupt if the pre-existing acceptance clause is not overturned in conjunction with finding the mandate unconstitutional, BUT, because of it’s prohibitive pricing, didn’t I see not long ago that only some 8,000 nationwide had actually availed themselves to the high-risk insurance plans? Surely 8,000 people can’t bankrupt the industry before we completely undo this in 2012. What am I missing?

    sybilll (a91c30)

  40. Just grant more waivers !!!

    JD (6e25b4)

  41. Professor Yelverton, you continue to not exactly cover yourself with glory. You change nicknames to avoid moderation or outright banning. And you are an angry ignoramus outside music. You get schooled with regularity around here.

    By the way, what is the difference between atomic mass and atomic number again? My freshmen know.

    You’ll have to look it up. But that didn’t stop you from trying call people stupid when you quoted someone else about isotopes.

    Go chop some wood. And brag some more. It makes you look so good.

    Eric Blair (5cf285)

  42. SUVs. Splitting wood.

    Greenhouse gas hypocrite.

    No one is surprised.

    Eric Blair (5cf285)

  43. sybilll – I believe you are referencing voluntary high risk insurance pools established by individual states rather than the provisions of ObamaCare which kick in during 2014. The voluntary pools have different pricing and requirements by state. I believe the Illinois pool required people to have been turned down by at least two carriers to be eligible to participate in the pool. ObamaCare will have no such requirements. I’m not sure if the pools operate with subsidies for the participants either, although they did receive some funding presumably to absorb losses.

    daleyrocks (c07dfa)

  44. daleyrocks, thanks for answering. I get it about the high risk pools. But, I still don’t get that dismissing the mandate, but not the pre-existing clause will send us to single payer sooner. This was a discussion on CNBC, and unless they were working on the assumption that this whole sh!t sandwich won’t be undone in 2012, I don’t get it.

    sybilll (a91c30)

  45. You have done this before, Yelverton. You obsession and jealousy of me and Eric Blair is unseemly, and disconcerting. Given your erratic and bizzare and aggressively dishonest behavior, why in the world would I give you anything other than my first name? My lack of a blog proves what, exactly?

    JD (109425)

  46. Eric asked you a simple question, beeyotch. A question that a man of your scientific background should have no problem with. Google away.

    JD (109425)

  47. _______________________________________

    “This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence.”

    Thank God for that. The thought of the IRS being given a new mandate, its mass of cubicle dwellers and pencil pushers snooping on and hectoring and harassing us to an even greater degree, drove me nuts.

    Mark (3e3a7c)

  48. A midget calling someone an ankle biter is rich in irony.

    Have to meet my boss for dinner. Place nice with the short bus midget, people.

    JD (109425)

  49. They are subject to some parts of PPACA but not all and they aren’t affected the same way. For example there is no minimum loss ratio.

    The plan is issued by the employer, there is no insurance company contractually tied to the employee.

    Employer plans are protected from the pre-ex rules in coverage can be tied to employement, you can’t wait till you get sick to join you have to decide when your hired or have a qualifying event.

    its not 100% avoidance of people playing games but enough that the system stays functional. Its a very easy system, you either maintain coverage or suffer a penlaty. If you have a gap over 63 days then your subject to pre-ex period.

    Nate Ogden (47b598)

  50. “The plan is issued by the employer, there is no insurance company contractually tied to the employee.”

    Nate – Do you have any links that describe this type of arrangement? Is it subject to any kind of regulation for the protection of employees, e.g. denial of coverage for certain types of treatment the way arms lenth arrangements would be?

    daleyrocks (c07dfa)

  51. JD, honestly, this Yelverton character brags quite often…so he ought to be happy.

    But he isn’t.

    I am. So are you.

    Just got back from a conference next to Pebble Beach and thought about your golf habit. Hope the weather isn’t too snowy.

    Eric Blair (6037ec)

  52. William

    this kind of poisonous crap is not going to be tolerated. You have apparently never learned to disagree without being disagreeable.

    So for now we are cleaning out your ugliness. perhaps patterico will bring you back. I am sure he will put it on his to-do list right after picking his toes. :-)

    Aaron Worthing (b8e056)

  53. “daleyrocks, thanks for answering. I get it about the high risk pools. But, I still don’t get that dismissing the mandate, but not the pre-existing clause will send us to single payer sooner.”

    sybilll – If there is no mandate but a prohibition against denying coverage for preexisting conditions, why would most people buy any insurance coverage until they actually get sick? That deprives the insurance companies of premiums during periods when people are healthy which are offsets to claims when they are sick.

    daleyrocks (c07dfa)

  54. William

    you can wait forever. Penalty box for you. I will decide which comments comply with policy in my leisure.

    JD

    I will take out a few where you respond back to him. Gotta be evenhanded. I know who the instigator is here, though. Yelverton is like Kman, without the Brokeback mountin’ vibe.

    Aaron Worthing (b8e056)

  55. “You have apparently never learned to disagree without being disagreeable.”

    Poor boy, the Yelverton inferiority complex rises to the top again.

    daleyrocks (c07dfa)

  56. “…Yelverton is like Kman, without the Brokeback mountin’ vibe…”

    Aaaaah! Mr. Worthing, I need some mental floss to remove that image.

    Eric Blair (6037ec)

  57. It’s that whole heteronormative vibe, maybe. Gets in the way of my accepting everyone.

    Eric Blair (6037ec)

  58. Sigh. Professor Yelverton, you do realize that folks can look up your posts in the past, right?

    So criticizing others for insulting you and supposedly being childish is…well, ironic.

    You keep saying you have this great life. Go enjoy it.

    Eric Blair (6037ec)

  59. “I posted links, I revealed my identity, and asked them to do the same after being insulted. I posted news links to facts and I get banned. I’m repeatedly called childish names … and these are the people you side with.”

    Poor boy, the Yelverton inferiority complex rises to the top again.

    Willie, thanks for proving my point, you victim you.

    daleyrocks (c07dfa)

  60. daley rocks, I get that, I was a Risk Manager by trade, but, this gloom and doom of finding the mandate unconstitutional will send us to single payer faster just does not make sense, UNLESS we do not undo this whole thing in 2012. The pre-ex part does not fully kick in until 2014, at which time I hope Obamacare in general will be a long forgotten nightmare. That is why I keep asking, is there something I am missing?

    sybilll (a91c30)

  61. “daley rocks, I get that, I was a Risk Manager by trade, but, this gloom and doom of finding the mandate unconstitutional will send us to single payer faster just does not make sense”

    sybilll – Look at it from the carrier perspective. Why do I want to write a line where the minimum benefit content is regulated by the government, my minimum loss ratio is specified by the government, the government forces me to accept all comers regardless of medical condition at any time, and I cannot individually price policies. It’s insane to think that looks like a good line of business.

    The mandate makes it potentially palatable.

    daleyrocks (c07dfa)

  62. sybill – That’s by removing some of the moral hazard. Just think of it as reducing cheating by employees on workers comp claims. If you were a risk manager, that costs your employer money directly and through higher insurance costs. Having a larger, continually paying pool of insureds spreads the risks for the insurers. The healthy subsidize the sick.

    daleyrocks (c07dfa)

  63. Yelverton

    You can keep doing this as many times as you want. you are in the penalty box. Goodnight.

    Aaron Worthing (b8e056)

  64. Mr. Worthing, my guess is that Professor Yelverton is acting out and being nasty. Thank you for appealing to his better nature. He really is a good musician. More music, less bile. And certainly less anger.

    Eric Blair (6037ec)

  65. Getting past the troll, for a minute, what does it say when the likes of Breyer, can deliberate ignore
    the facts, and Kennedy isn’t much better, We’ve seen this with the Kelo, the detainee cases,

    narciso (6075d0)

  66. Well, you are putting your finger on exactly the problem with covering pre-existing condition. Try this. don’t buy fire insurance. then if your house burns down, try buying it then, and ask them to cover the fire you just had. Let me know how long it takes for them to stop laughing.

    No one has yet to explain why health insurance should cover pre-existing conditions, while auto insurance and fire insurance should be exempt from having to cover pre-existing conditions.

    Michael Ejercito (249c90)

  67. daley rocks, my last try. I understand all of that. I am not arguing about the moral hazard, I am arguing about the timeline. The pre-ex does not kick in until 2014, we can undo all of this in 2012, so why any conservative would think striking down the mandate would lead to single payer is beyond my thinking.

    sybilll (a91c30)

  68. You learned nothing, which is par for the course for you, willie the racist hilljack. Eric is 100x the intellect, and even beyond that, 100x the man you could ever dream of being. Pathetic is a dramatic understatement of your psychosis.

    JD (109425)

  69. JD

    seriously, why not just ignore the douchenozzle? do you think anyone takes him seriously?

    Aaron Worthing (b8e056)

  70. it would be unbelievably heartening if this obamacare thing were killed dead for reals

    please please please let me let me let me

    happyfeet (c0d821)

  71. I should, AW. You are right. But there is a history with this creep, and the sockpuppeting deserves to be exposed. It is amazinf that this little f@ck is a “professor” of anything. He can try to make fun of me all he wants. Plenty of people know me, so that does not bother me. His attacks on good and decent people like Eric Blair piss me off.

    JD (0d2ffc)

  72. My name is JD. Apparently now yelverton thinks he knows better what my name is, as opposed to the name my parents and wife and children call me.

    JD (6e25b4)

  73. No, this is not ‘the beginning of the end’ but the ‘end of the beginning, next the full 4th Circuit,
    and then the Supremes, with cases out of Detroit an d Florida, being consolidated

    narciso (6075d0)

  74. W. Pam. Bill. Leo. JT. That is just off the top of my head. So, your dishonesty is established. Now, you claim to know my name better than my parents, wife, and children, and friends. Are you that delusional? What does my lack of a blog prove?

    JD (822109)

  75. Because a Rino once supported something compels nobody to support the same bad idea today. You are an imbecile.

    JD (0d2ffc)

  76. Spamming the same douchey link from earlier does not make it any less douchey.

    JD (109425)

  77. _____________________________________________

    GHW Bush supported it, future GOP nominee Romney supported it, along with Republicans from states that are now challenging it.

    I’ve noted previously that almost every infamous, notorious decision or policy of Republican/conservative administrations has been when they’ve leaned left.

    So Herbert Hoover foolishly initiated large tax increases on the heels of the Great Stock Market Crash of 1929, Richard Nixon (already infamous in more ways than one) was a squish from A to Z, Ronald Reagan did his impression of Jimmy Carter by secretly negotiating with a hostage-taking nation (ie, Iran—and, hence, the debacle of Iran-Contra), George Bush Sr was into “read my lips…” and also selected David Souter to the Supreme Court, and George W was a softie when it came to bloated budgets, illegal immigration and Harriet Miers.

    Liberal sentiment, whether from a Republican or Democrat (natch), often leads to knuckleheaded results.

    Mark (3e3a7c)

  78. @78

    Do you have anything to support your contention that the mandate was a “Republican position”?

    Yes, I read your link, and the article IT links to talks primarily about the Democrat pushing for it.

    I just would like to see something supporting your assertion that a sizable portion of the GOP backed it.

    malclave (1db6c5)

  79. Because a Republican once supported this in 1994, all current conservatives are hypocrites for opposing it. This is the depth of MTSU thinking.

    JD (109425)

  80. Professor Yelverton, lots of people posting here know my real name (including Patterico). You don’t. And given how you act, that is a really good idea.

    Again, your actions continue to speak louder than words.

    Eric Blair (0d8df6)

  81. “The minimum insurance would cover “catastrophic” health care expenses–that is, those exceeding $1,000 a year for an individual or $2,000 a year for a family.”

    That doesn’t sound similar to ObamaCare at all, with its free preventive care, etc. WTF?

    daleyrocks (c07dfa)

  82. Romney approving of something proves what? Good Allah, even MTSU should be embarassed by you.

    JD (6e25b4)

  83. Willie – JFK supported tax cuts. Why doesn’t Obama?

    daleyrocks (c07dfa)

  84. Speaking of cowards, Professor Yelverton, have you criticized Muslims on campus?

    Eric Blair (0d8df6)

  85. JD, he is going to have another of his breakdowns again.

    Eric Blair (0d8df6)

  86. So, now he is showing how RINOs supported a prosion that people at this blog oppose, and that is supposed to prove hypocrisy. William the plagiarist Yelverton is an imbecile.

    JD (6e25b4)

  87. Such a troll. Honestly.

    What is an isotope, again?

    Eric Blair (0d8df6)

  88. You’ll have to show how a pope’s statement must be regarded as an article of faith by a non-Catholic Christian. Or, for that matter, why the pope’s statement when it wasn’t ex cathedra has any theoligical imperitive.

    Some chump (e84e27)

  89. This guy is mental. Honestly. Go split some wood, would you?

    Eric Blair (6037ec)


  90. “…Prove it or you’re a lying fake….”

    Such a tough man.

    Wow. You get to say all kinds of things, don’t you? It’s not your blog, sir. Is it? You have one of your own, where you can make rules of your own. Like delete Dustin’s comments.

    And you really think you are quite a smart guy.

    Patterico knows my bona fides. So does JD. And Dmac. And Bradley Fikes.

    Who are you? An angry little troll.

    Eric Blair (6037ec)

  91. “…You’ve been proven a fraud and a fake…”

    Um. Proven by you? Please.

    Eric Blair (6037ec)

  92. “The pre-ex does not kick in until 2014, we can undo all of this in 2012, so why any conservative would think striking down the mandate would lead to single payer is beyond my thinking.”

    sybilll – I missed the part about overturning everything in 2012. If that’s the bet great, but parts are already phasing in. Children on parents policies without regard to preexisting went into effect in September. Insurance companies have already begun exiting the individual health insurance line, so choice, contrary to what Obama was telling people, is already diminishing.

    Personally, if Obama is reelected, absent major legislative changes, it is not a line of business I would want to be in given the Democrat policy goals. The risks are too great. You assume Republicans can take control of the Senate and win the Presidency in time to overturn the onerous provisions before they kick in at the beginning of 2014, basically a year after the election. My comments assume they don’t or that appeals don’t reach the SC in that time.

    daleyrocks (c07dfa)

  93. JD – Don’t cross swords with Yelverton, he’s refereed guitar competitions.

    daleyrocks (c07dfa)

  94. I like how these threads have an intense dramatic arc

    happyfeet (c0d821)

  95. ohnoes someone raided the lost arc

    happyfeet (c0d821)

  96. Eric, You’ve been proven a fraud and a fake. I’d be ashamed to show my face around here.

    Actually, Yelverton, you are the one who has used multiple names here and told lies using those names (such as when you pretended not to know who JD was). Glass houses, and all that. Eric Blair has not been proven to be anything but a polite commenter.

    It is interesting to watch you beclown yourself.

    Patterico (c218bd)

  97. I think we’re in flying fridge territory by now,

    narciso (6075d0)

  98. Fool doesn’t even bother to spell Stockman, the treasonous financial chop shop operator, correctly.

    narciso (6075d0)

  99. ____________________________________________

    “The idea of an individual mandate as an alternative to single-payer was a Republican idea,”

    What’s the reverse of the phrase “even a broken clock tells the correct time twice a day.”

    I have no problem saying that bad ideas or poor decisions can come from folks on the right, registered Republicans or otherwise. I mentioned previously the foolish decision of Ronald Reagan to go against his publicly stated policy of never negotiating with hostage-taking nations. A variation of that occurred earlier this year when a president to the left of Reagan — way, way to the left of him — ended up being too, well, perhaps laissez-faire conservative? (or too libertarian?) for my tastes:

    theatlanticwire.com, February 2010:

    William Kristol is a dyed-in-the-wool conservative thinker, a defender of Bush foreign policy and founding editor of The Weekly Standard. Paul Krugman is a leftist economist who writes for The New York Times. The two, it goes without saying, are not natural allies.

    Yet they can agree on at least one thing: Obama is letting big bankers off too easily. Both are aghast at the president’s nonchalance about the JPMorgan Chase and Goldman Sachs CEO bonuses. “Oh. My. God.” writes an excitable Krugman, as Obama continues to fall short of liberal expectations. “These bank executives,” he explains, “are not free agents who are earning big bucks in fair competition; they run companies that are essentially wards of the state.” Thus, “at the very least, you would think that Obama would understand the importance of acknowledging public anger over what’s happening.”

    “I agree with Paul Krugman,” announces Kristol, not mincing words. “If Obama’s idea of moving to the middle politically is to embrace Wall Street’s too-big-to-fail banks, he’s crazy.” Here’s why:

    Usually Republicans are the party of Big Business and Democrats of Big Government, and the public’s hostility to both more or less evens the politics out. But if Obama now becomes the spokesman for Big Government intrusiveness and the apologist for Big Business irresponsibility all at once–good luck with that.

    Mark (411533)

  100. Oh, and coward Worthing, I have unlimited numbers of IPs so, you can run but you can’t hide.

    Goodnight boys.

    Comment by William — 12/13/2010 @ 8:07 pm

    *sotto voce* Be careful, gentlemen. I’ve heard those IPS can be pretty dangerous.

    I think we’re in flying fridge territory by now,

    Comment by narciso — 12/13/2010 @ 8:08 pm

    LOL

    no one you know (72db9b)

  101. Gosh, I have a fake PhD. I had no idea.

    I guess that the tough guy sure showed me.

    Again, it is interesting to note that the man admits to having lots of lots of different names and IPs and the like. For what?

    A very angry person.

    Eric Blair (6037ec)

  102. William

    For the record, you went into the penalty box when you started getting nasty to the regulars. You can disagree without being disagreeable. And if you want to win over anyone around here, I suggest you try that for once in your life.

    Aaron Worthing (b8e056)

  103. And what does this mean?

    “..I have unlimited numbers of IPs so, you can run but you can’t hide…”

    Mr. Worthing isn’t the one hiding by avoiding moderation by the use of multiple names.

    Brrr. I sense some issues.

    Eric Blair (6037ec)

  104. Mr. Worthing, I think he likes a more pugilistic approach to things. At least electronically. After all, he has a “political blog” where he can kick people’s backsides.

    Unless they ask him what an isotope is, I guess.

    Eric Blair (6037ec)

  105. Willie, eat a tasty cupcake and drink a beverage. Take a breath. Talk to your imaginary hot babe and enjoy your festivus tree.

    daleyrocks (c07dfa)

  106. Eric Blair – What is the url for Willie the Wanker’s blog?

    daleyrocks (c07dfa)

  107. “Mr. Worthing isn’t the one hiding by avoiding moderation by the use of multiple names.”

    That sounds sort of cowardly and not reflective of good faith commenting on Willie’s part.

    daleyrocks (c07dfa)

  108. Hi daley: just google you up some “William Yelverton.” He actually has some nice information about his music. I’m not a musician, but the guitar work is nice to listen to… There is also a link there to his political blog, where he maintains that conservatives are stupid and liberals are smart…scientists have proved it.

    Well, I may not be smart, but I generally know about the items I discuss (like isotopes).

    Just a bunch of angry partisan ranting. But this is a fellow with a good job, a rewarding career, and from all reports, loved ones. The anger is a mystery, again.

    Eric Blair (6037ec)

  109. ________________________________________

    The anger is a mystery, again.

    You ask that question after information like the following has been posted here on several occasions?!!

    Call this my salute and tribute to William Yelverton:

    freakonomics.blogs.nytimes.com, Arthur C. Brooks, April 2008:

    For three decades, the General Social Survey has asked a nationwide sample of adults, “Taken all together, how happy would you say you are these days? Would you say that you are very happy, pretty happy, or not too happy?” Here is a representative sample of the results:

    • In 2004, 44 percent of respondents who said they were “conservative” or “very conservative” said they were “very happy,” versus just 25 percent of people who called themselves “liberal” or “very liberal.”

    • Adults on the political right are only half as likely as those on the left to say, “At times, I think I am no good at all.” They are also less likely to say they are dissatisfied with themselves, that they are inclined to feel like a failure, or to be pessimistic about their futures.

    It doesn’t matter who holds political power. The happiness gap between conservatives and liberals has persisted for at least 30 years. Indeed, the difference was greater some years under Bill Clinton than it was under George W. Bush. Democrats may very well win the presidency in 2008, and no doubt many liberals will enjoy seeing conservatives grieving out about that — but the data say that conservatives will still be happier people than liberals.

    Reason.com, December 2006:

    The people who give the least are the young, especially young liberals. [Arthur C.] Brooks writes that “young liberals — perhaps the most vocally dissatisfied political constituency in America today — are one of the least generous demographic groups out there. In 2002, they were 12 percent less likely to give money to charities, and one-third less likely to give blood.”

    Liberals, he says, give less than conservatives because of religion, attitudes about government, structure of families, and earned income. The families point is driven home by other results from Brooks. He writes that young liberals are less likely do nice things for their nearest and dearest, too. Compared with young conservatives, “a lower percentage said they would prefer to suffer than let a loved one suffer, that they are not happy unless the loved one is happy, or that they would sacrifice their own wishes for those they love.”

    Mark (3e3a7c)

  110. Thanks daley rocks. You are correct that my presumptions were perhaps too optimistic. I just can’t fathom that this country will not undo what malfeasance has been bestowed by this administration. But, since this thread appears more about a renegade commenter, I will let it go. Thanks for your input.

    sybilll (a91c30)

  111. A.W and Patterico my question to you guys as lawyers is this;
    1-every district court including the ones that ruled that the mandate is constitutional have held that penalty for individuals for failure to buy health care is a tax and not a permissible one. Therefore there is no stick to which to induce some one to buy a policy.

    2-As the Virginia court has held that the mandate is not constitutional (and the Florida court is expected to to rule the same regarding the mandate) and without the mandate to both finance the the health bill and make it actuarially feasible that presents the health insurance companies with an impossible dilemma, either go bankrupt in insuring all comers no matter the risk or to cease existing. Would not the insurance companies be able to sue under the takings clause since the government would have under operation of law taken their property (their business) on behalf of their shareholders? Would the government be subject to suit by the shareholders under eminent domain? And the insurance companies creditors would they not have a claim against the government as well under eminent domain and the companies employees as well?

    3-If one has a constitutional right to boycott and encourage others to do as well then as you said can the mandate be permissible? If choosing not to buy health insurance is permissible as a condition of living then would not opting out of joining a union and not choosing to pay agency fees also be permissible? Would closed shop laws have to be stricken since it would be impermissible to be forced to join a union in order to enjoy ones right to work?

    4-the FL case also has the issue of the Demcare mandating the states provide additional medicaid coverage but without additional federal funding. Could not those states (if that section is ruled unconstitutional) simply argue that medicaid is a federal scheme and opt out of medicaid and that it is the federal government responsibility since it collects payroll taxes from all employed state citizens to either cease collecting those taxes in the states that opt out or to the extent it collects taxes on those states’s citizens payrolls provide the medicaid funding and benefit equal to what it provides the other states that continue to have the state add on portion?

    cubanbob (409ac2)

  112. Cubanbob

    1-every district court including the ones that ruled that the mandate is constitutional have held that penalty for individuals for failure to buy health care is a tax and not a permissible one.

    Not literally true. the FL court and VA court yesterday held that it was a penalty under the commerce clause. they specifically denied it was a tax, because congress wrote the law so they didn’t even call it one. But I think that is tangential to your point.

    > 2-As the Virginia court has held that the mandate is not constitutional (and the Florida court is expected to to rule the same regarding the mandate) and without the mandate to both finance the the health bill and make it actuarially feasible that presents the health insurance companies with an impossible dilemma, either go bankrupt in insuring all comers no matter the risk or to cease existing. Would not the insurance companies be able to sue under the takings clause since the government would have under operation of law taken their property (their business) on behalf of their shareholders?

    I am not sure about this area of jurisprudence of the takings clause, but over at Volokh, I believe, they have had a number of posts on a theory of precedent that congress cannot regulate a business out of existence. I mean I suppose congress can ban health insurance, but short of that, they can’t make it completely unprofitable. I would suggest looking over there through their archives (although I am likely to look myself and see if I can use that analysis).

    > 3-If one has a constitutional right to boycott and encourage others to do as well then as you said can the mandate be permissible? If choosing not to buy health insurance is permissible as a condition of living then would not opting out of joining a union and not choosing to pay agency fees also be permissible? Would closed shop laws have to be stricken since it would be impermissible to be forced to join a union in order to enjoy ones right to work?

    The state cannot force you to join a union. The state can force you to pay dues to a public sector union, but then they have to give you the right to opt out of paying the portion of dues that goes to political activities. I think the thought is that in that situation the union becomes a quasi-state actor, a joint partner in the management of the state entity—such as the public school system. So this forced association with the union is no different than the force association with the school board—its just part of what you agree to have when you seek to be a public school teacher. But you are not required to consent to the truly-speech specific element of the union.

    > 4-the FL case also has the issue of the Demcare mandating the states provide additional medicaid coverage but without additional federal funding.

    Honestly, I work in health care, and I am not sure of the answer. But I will note that Cucinelli has challenged the same issues, but based on a non-severability theory—that is, because he believes you can’t sever out the mandate, the rest of it will fall, including these kinds of Medicaid rules.

    Hope that helps.

    I will also add that my theory of the right to boycott is mine. I have never seen patterico endorse it. or disagree, for that matter. i have no idea what he thinks of it.

    Aaron Worthing (e7d72e)


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