Patterico's Pontifications

11/10/2020

SCOTUS To Uphold Obamacare?

Filed under: General — Dana @ 1:31 pm



[guest post by Dana]

I’m really pressed for time so I’m just going to put this up to get the ball rolling:

Law professor Steve Vladeck concurs:

Agreed. The #ACA is safe.

Worst-case scenario is that #SCOTUS invalidates the “individual mandate” while leaving the rest of the law in place — but even that is hardly a given.

Also possible that a majority holds that the plaintiffs lack standing — avoiding the merits entirely.

–Dana

73 Responses to “SCOTUS To Uphold Obamacare?”

  1. Hello.

    Dana (6995e0)

  2. The standing argument is tricky, as the state’s argument (that they are harmed) is probably better than Congress’s argument that they have standing to defend after the DoJ declined. The Prop 7 case failed because the justices (alarmingly) claimed than only the state had standing to defend, not the initiative’s proponents (analogous to the legislature in that case). Congress has no power to execute the laws, I don’t see how they have standing to defend them.

    Maybe they wrote that power into the ACA, but I don’t see how that fails to breach separation of powers anyway.

    Kevin M (ab1c11)

  3. Of course, precedent may operate oddly at times.

    Kevin M (ab1c11)

  4. The GOP doesn’t want to repeal Obamacare.

    Time123 (ae9d89)

  5. The one thing this case does is demonstrate just how wrong Roberts was to insist that the mandate — described as inseparable from the act — was a tax. Now that the tax is zero, why doesn’t the whole act fall as was suggested it must in the previous case?

    Kevin M (ab1c11)

  6. The GOP doesn’t want to repeal Obamacare.

    No, we are stuck with it, or something like it now. The earlier case was prior to it becoming effective, and a new version could have been created in a bipartisan manner before the dislocations of the ACA happened.

    Now, nuking it would be disruptive, and no one wants to take the blame for a new round of dislocations. At best, the court could require a sunset, giving Congress a deadline for fixing it. But this case — tying the mandate to elimination of the prior-condition exclusion — would make a reform difficult. They HAVE to uphold removing the mandate while leaving the ACA in place or they make any ACA replacement hard to do without a tax for non-compliance.

    Kevin M (ab1c11)

  7. Oh, and ACB just about has to vote to maintain the act.

    Kevin M (ab1c11)

  8. If obama care ruled unconstitutional republicans have no consensus to replace it. Watching people die in democrat ads won’t be getting many people to vote republican. Biden’s replacement kamala or AOC might charge judges who vote against obama care with accessary to murder. AOC probably murder.

    asset (60db24)

  9. Biden’s replacement kamala or AOC might charge judges who vote against obama care with accessary to murder. AOC probably murder.

    They’d be laughed out of court. Next up would the transplant panels in every hospital.

    Kevin M (ab1c11)

  10. Michelle Steel defeats Harley Rouda CA-48. Pickup.
    Young Kim continues to lead by 1% in CA-39
    David Valadao contineus to lead by 3.6% in CA-21

    Burgess Owens leads in a nail-biter over Ben McAdams in UT-4 (Mia Love’s old seat)

    Kevin M (ab1c11)

  11. They found a dumpster near my domicile/home base of Lake County IL b/c incumbent D Lauren Underwood (another ’18 product) took the lead from Jim Oberweis in the tight 14th CD. It’s a good bet to be eliminated in the next redistricting, due to its far flung geography and areas that have to added to other districts to get them th minimum population.

    If Underwood wins, though shes a black woman who did exceedingly well in a outer suburban district, she might get prodded to take over a district with more AAs in the close-in Chicago suburbs, contingent on Bobby Rush or Danny Davis retiring.

    urbanleftbehind (7c5b5a)

  12. Well, at least President Trump will finally be able to release his healthcare plan that covers everybody better than Obamacare, including anyone with a pre-existing condition, at a tiny fraction of the cost.

    “In about two weeks.”

    Dave (1bb933)

  13. Whatever the SCOTUS does will simply provide Democrats with the ammo they need to pass an even more comprehensive version of government healthcare. Remember, they don’t want Obamacare. They want UK-style government healthcare.

    Hoi Polloi (66077a)

  14. Won’t be repealed; the viable ‘threat’ of a real eventual ‘public option’ will either terrify insurers and healthcare providers to drastically reduce rates, costs and high profit margins or America will have socialized medicine within the next 40-50 years. And if you think that’s ‘far off,’ keep in mind 20% of the 21st Century is already pretty much in the history books.

    DCSCA (797bc0)

  15. Interestingly, no Republican members of Congress filed any briefs supporting the Administration, which tells you how enthusiastic they were about the case.

    Also, it was California (with twelve other states and DC) that intervened at the lower courts when the Administration refused to defend the ACA, hence the case name Texas v. California. The House only joined at the Supreme Court.

    Rip Murdock (d2a2a8)

  16. According to Paul Mirengoff over at Powerline, Justice Samuel Alito also had some pointed questions for the petitioners:

    “There was a strong reason to think of the mandate like a part of an airplane that was essential to keep it flying,” Alito said. “But now it has been taken out, and the plane has not crashed. So how would we explain that the mandate in its present form is essential to the operation of the act?”

    From the beginning, Roberts said that it would be up to Congress to repeal the law they had passed. I think at a minimum he’s been pretty consistent here, even if you don’t agree with his reasoning.

    JVW (ee64e4)

  17. It’s not inconceivable that this is a unanimous ruling.

    JVW (ee64e4)

  18. 5. Kevin M (ab1c11) — 11/10/2020 @ 1:56 pm

    Now that the tax is zero, why doesn’t the whole act fall as was suggested it must in the previous case?

    Because it’s been repealed.

    There should be no issue of severability because Congress knew what the law would be after they repealed it.

    Sammy Finkelman (00fff5)

  19. 17. JVW (ee64e4) — 11/10/2020 @ 4:18 pm

    It’s not inconceivable that this is a unanimous ruling.

    It was unanimous (in the result) in the moot court on which Amy Coney Barrett sat this summer.

    Some judges said no standing, and some judges ruled against Texas on the merits.

    Sammy Finkelman (00fff5)

  20. The act was unconstitutional from the beginning and the coward Roberts changed the law to claim otherwise. Of course they won’t act.

    NJRob (eb56c3)

  21. The partd that might have been unconstitutional were the requirement to buy health insurance (Roberts said it could be characterized as a tax if you didn’t buy) and the forced expansion of Medicaid (Roberts said the pressure on the states was not to great)

    Now the requirement to by health insurance is still in the law, but the tax is always $0.00.

    Amy Coney Barrett said surely the Congress didn’t think they were making the law unconstitutional by setting the tax to zero,

    Sammy Finkelman (00fff5)

  22. Well, in a twisted sort of way, this would be good news. Then, at last, we could say the Trump presidency was a complete and utter failure. “Three justices appointed, and we sold out all our principles…but at least we also couldn’t eliminate Obamacare!”

    Demosthenes (d7fc81)

  23. Then, at last, we could say the Trump presidency was a complete and utter failure.

    Fitting that a precedent set by a Bush justice gets blamed on Trump. NeverTrump in a nutshell.

    beer ‘n pretzels (042d67)

  24. Heh! We might as well Never had Trump as far as Obamacare is concerned. How come, in four years, he never pulled out that plan to replace it with something better than he was carrying in his pocket during the 2016 primary debates?

    nk (1d9030)

  25. Which is why Trump’s wriggling on the hook of the election results is not harshing my mellow in the least. It’s going to be like everything else about Trump — a lot of sound and fury resulting in nothing. He will be about out on January 20, and a new President will be sworn in, and there’s not a thing Trump will be able to do about it.

    nk (1d9030)

  26. he will be about out

    nk (1d9030)

  27. Fitting that a precedent set by a Bush justice gets blamed on Trump. NeverTrump in a nutshell.

    Bush isn’t on the Supreme Court and he never promised to get rid of Obamacare. Trump did actually promise that and failed to do it. So while you are right that Roberts is not the dream conservative justice, you are wrong that there’s something wrong with calling this another example of how trump failed. He simply did not do what he said he could do.

    Dustin (4237e0)

  28. Bottom line: People can wait until they are sick to buy health insurance at subsidized rates, and the insurance companies have to sell them the policy.

    It’s a classic case of people wanting benefits that other people pay for. All carrot, no stick.

    I’ll say it again. Health care is not a right. Person A doesn’t have a claim on Person B’s wallet because Person A gets sick.

    The Founders would be aghast that American adults in 2020 are so incapable of individual responsibility, and so insistent that other people take care of them.

    norcal (a5428a)

  29. @24-
    John McCain

    Rip Murdock (e4a538)

  30. 2016-2018, the GOP had the White House and majorities in the House and Senate. If Republicans wanted to repeal the ACA, they could have. Yet they made no effort to do so, nor did they at any time propose legislation to replace the ACA. Thus, they never intended to repeal or replace the ACA. They just want to complain about it, because that’s what keeps the base fired up.

    I doubt Biden will push for the public option. He is, however, reforming the pandemic task force. 61,000 hospitalizations, the most in a single day, make containing the coronavirus his most pressing priority.

    Gawain's Ghost (b25cd1)

  31. I don’t believe Obamacare will be overturned. I’m guessing 5-4 or even 6-3 against overturning the ACA.

    Roberts:

    It’s hard for you to argue that Congress intended the entire act to fall when the same Congress that lowered the [tax] penalty to zero didn’t even try to repeal the rest of the act. They wanted the court to do that, but that’s not our job.

    Under the severability question, we ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed. And here Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question

    Kavanaugh:

    I tend to agree [that] this is a very straight forward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place. . .[I]t does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place.

    Alito:

    There was a strong reason to think of the mandate like a part of an airplane that was essential to keep it flying. But now it has been taken out, and the plane has not crashed. So how would we explain that the mandate in its present form is essential to the operation of the act?

    I see nothing in the enumerated federal powers of the government in article 1 section 8 of the US Constitution that allows the federal government to make laws on healthcare or health insurance. Roberts by changing the fine into a tax put it under the 16th amendment which allows the federal government to tax income.

    If there is no mandate, there is no tax which in my opinion makes the ACA (Obamacare) unconstitutional which is what it should have been even with the mandate, unconstitutional.

    Tanny O'Haley (8a06bc)

  32. @24-
    John McCain

    McCain voted in favor of a legitimate “repeal and replace” plan that Corker, Cotton, Graham, Lee, Moran, Paul, Heller, Collins and Murkowski all voted again (the first of the three votes in the Senate on Obamacare in 2017).

    The “skinny repeal” that McCain voted against was explicitly billed as a placeholder to return to negotiations with the House. Ryan, McConnell and Pence all promised that the measure would not be put to a vote and passed by the House “as-is”.

    So it kind of ignores what actually happened to blame McCain. Had McCain voted yes, there is no guarantee whatsoever that a real bill could have passed the House and Senate.

    The only thing certain was that the bill McCain voted against would not have become law even if McCain had voted for it.

    Dave (1bb933)

  33. Yet they made no effort to do so, nor did they at any time propose legislation to replace the ACA.

    That is not true. The House passed a plan. The Senate voted on three plans, the first of which was essentially the House’s plan.

    That needed 60 votes to close debate, and got 43. Nine GOP senators, including centrists and conservatives, voted against it. McCain voted for it.

    The second senate vote was on a partial repeal. It failed 45-55, with 7 Republicans (including McCain) voting No.

    Dave (1bb933)

  34. 2016-2018, the GOP had the White House and majorities in the House and Senate. If Republicans wanted to repeal the ACA, they could have. Yet they made no effort to do so, nor did they at any time propose legislation to replace the ACA.

    This is simply untrue. Speaker Ryan did propose a plan that greatly changed Obamacare, making it more than just a welfare program for the poor, allowing many in the middle class to again get private insurance without spending twice or three times what they were paying on their old plans.

    Kevin M (ab1c11)

  35. The “House Freedom Caucus” held out for no plan, and scuttled it (and affordable health care for the self-employed).

    Kevin M (ab1c11)

  36. 31. Tanny O’Haley (8a06bc) — 11/10/2020 @ 10:41 pm

    I see nothing in the enumerated federal powers of the government in article 1 section 8 of the US Constitution that allows the federal government to make laws on healthcare or health insurance.

    It’s considered Interstate commerce. I don’t think this was at issue.

    Sammy Finkelman (00fff5)

  37. Fitting that a precedent set by a Bush justice gets blamed on Trump. NeverTrump in a nutshell.

    beer ‘n pretzels (042d67) — 11/10/2020 @ 7:10 pm

    Oh, give me a break. It was the one thing you had. The one thing that even those Republicans who couldn’t stand Trump were practically forced to concede to you. The courts, the justices. All solid picks, all Federalist Society approved. The most conservative thing Trump did during his time in the White House (even if it only came because he didn’t mind outsourcing his authority).

    Thomas and Alito are still on the court. Both of them voted against Obamacare in 2012. With three newly-minted conservative justices on the court, it should be easy to overturn this blatantly unconstitutional law, Roberts or no Roberts. If they don’t, that’s on their heads. But it’s also on the head of the president who promised a repeal, and made his selections in part toward that end.

    Demosthenes (d7fc81)

  38. I think the most conservative thing Trump did during his time in White House was to sue Stormy Daniels for a refund. If that’s not striking both a blow for morality and a blow for fiscal responsibility, I don’t know what is.

    nk (1d9030)

  39. The GOP doesn’t want to repeal Obamacare.

    No, we are stuck with it, or something like it now.

    Kevin, the reason we’re stuck with it is that the GOP apparently has NO IDEA what they want to do instead, and as people have adapted to it it’s become the status quo. Any change is now risky.

    The constituency against change
    ——————————–
    All Democrats.
    Non-Democrats that have benefitted from the system.
    Non-Democrats that have become used to the system and are now averse to risk.

    The GOP is so bereft of ideas or courage that they haven’t even put out a proposal of what they would like to do. Trump, mighty con man that he is, has been promising his plan in ‘two weeks’ for years.

    What expect that we’ll get is tinkering around the edges sold with overblown rhetoric.

    Time123 (52fb0e)

  40. Back circa 2010-2012, I was a passionate….if not obsessed…..opponent of the constitutionality of the individual mandate. Could Congress actually force you into a market in order to achieve some greater regulation of that market (address the free rider problem)? There was no doubt that Congress could impose a perfectly valid tax on consuming health care without insurance….Congress could also fashion a valid regulation which in effect could say, if you are consuming health care, these are the rules that you must follow…or else you face some penalty. At its heart, NFIB then became a means/ends question and in came Robert’s saving construction….which required some dancing around what constitutes a direct tax and the curious notion of how big a disincentive must be before it becomes a regulatory penalty…..but the issue was decided: some limited compulsion would be allowed.

    But alas, all of the subsequent legislation has missed the fundamental point…..that whatever you call it, the matter was in essence being thrown back to the people to decide whether they wanted to keep the legislation, modify it, or throw the entire matter out and start again. The GOP ran many an election on the evil of Obamacare and repealing and replacing it. However, they could not get to that magic threshold of 60 in the Senate to make that happen….and the “replacement act” remains agonizingly ill defined. So, the theater continues. The majority appear to like that many without access to health insurance, now have access….especially those with pre-existing conditions. The majority also remains skeptical of socializing the entire mess and losing choice and the good that comes from market competition.

    I strongly doubt that the Court will now suddenly pivot to put its thumb on the scale of what should be done…that doesn’t appear to be the point of NFIB. The GOP needs to come up with a superior idea….or at a minimum….some superior modifications to Obamacare. It’s been 10 years…we need to move beyond the emotional victory of neutering Obama post NFIB…to an actual legislative plan….or concede and move on. These legal proceeding are last gasp appeals to emotionalism. We really do need a second act….

    AJ_Liberty (a4ff25)

  41. @28

    I’ll say it again. Health care is not a right. Person A doesn’t have a claim on Person B’s wallet because Person A gets sick.

    The Founders would be aghast that American adults in 2020 are so incapable of individual responsibility, and so insistent that other people take care of them.

    norcal (a5428a) — 11/10/2020 @ 8:09 pm

    It’s even worse than that norcal… Person A doesn’t have a claim on Person B’s labor. Health care cannot be a “right” by definition… only an entitlement, such that the government can grant or remove.

    whembly (c30c83)

  42. @30

    2016-2018, the GOP had the White House and majorities in the House and Senate. If Republicans wanted to repeal the ACA, they could have. Yet they made no effort to do so, nor did they at any time propose legislation to replace the ACA. Thus, they never intended to repeal or replace the ACA. They just want to complain about it, because that’s what keeps the base fired up.

    Gawain’s Ghost (b25cd1) — 11/10/2020 @ 10:17 pm

    This is flat out false.

    The GOP had replacement plans, but couldn’t get past the GOP Senate because there wasn’t enough DEMOCRAT votes to overcome the 60th cloture vote (to end debate).

    Democrats were not about to have Obama’s signature plan to go down in flames.

    So, not that the GOP “made no effort to do so”. It’s that they couldn’t get any Senate Democrats to agree to do so.

    whembly (c30c83)

  43. The Ghost of Mr Gawain wrote:

    2016-2018, the GOP had the White House and majorities in the House and Senate. If Republicans wanted to repeal the ACA, they could have. Yet they made no effort to do so, nor did they at any time propose legislation to replace the ACA. Thus, they never intended to repeal or replace the ACA.

    The Republicans did try, but, thanks to His Maverickness, the repeal effort failed in the Senate. Our esteemed host waxed wroth about that.

    Obysmalcare has been emasculated by the reduction of the tax penalty to zero, and the GOP will not allow it to be raised again as long as Mitch McConnell, one of whose 1,222,000 votes this year came from me, controls the Senate. But the GOP will be happy enough to see Obaminablecare limp along, while the Democrats control the House and [Shudder!] Kamala Emhoff Joe Biden is President, because its total repeal will push the only option remaining for government provided health care, some form of single payer.

    The Democrats never expected Offalcare to work; they just needed something, anything! that could pass, to establish the cockamamie notion that the government was ultimately responsible for people’s health care coverage. Then, when Owfulcare failed, they’d say, “See? We tried it using conservative, market-based principles, and it just didn’t work, so all that’s left is single payer!”

    The Dana in Kentucky (facd7c)

  44. Oh… I think the SCOTUS will sever the mandate and uphold the rest.

    whembly (c30c83)

  45. @38

    I think the most conservative thing Trump did during his time in White House was to sue Stormy Daniels for a refund. If that’s not striking both a blow for morality and a blow for fiscal responsibility, I don’t know what is.

    nk (1d9030) — 11/11/2020 @ 4:18 am

    tbf, she did break a contract for which she was paid.

    What? You only like contract laws for certain people?

    whembly (c30c83)

  46. Part of the problem is that the GOP, including Donald Trump, ran on “repeal and replace,” but nobody had any idea with what to replace Offalcare. The idea that most conservatives wanted to replace it with the 2008 status quo, to replace it with the repeal of the concept that the government would take care of you, was one that the conservatives were to chicken [insert slang term for feces here] to say aloud.

    I can say it, ’cause I’m not running for anything.

    The Dana in Kentucky (facd7c)

  47. @46 Well, for most people returning to the 2008 status quo would be better.

    There were two main reasons why Obamacare was pushed:
    -the uninsured
    -the practice to deny based on pre-existing conditions

    If only the government addressed those two situations, things would’ve been fine. But, democrats had different idea and wanted more.

    whembly (c30c83)

  48. Mr Whembly wrote:

    I’ll say it again. Health care is not a right. Person A doesn’t have a claim on Person B’s wallet because Person A gets sick.
    The Founders would be aghast that American adults in 2020 are so incapable of individual responsibility, and so insistent that other people take care of them. norcal

    It’s even worse than that norcal… Person A doesn’t have a claim on Person B’s labor. Health care cannot be a “right” by definition… only an entitlement, such that the government can grant or remove.

    There is the always unspoken part: if the government is not ultimately responsible for health care costs, there will be people who cannot afford health care, and some will die early due to it. To admit that part is to say that you are OK with people dying earlier due to a lack of health care, and almost no one has the balls to say that.

    I have said that! I would prefer to see those who cannot afford health care suffer for it, and die earlier, rather than to see the entire country suffer through ever-increasing socialism. But how many other people would be willing to admit that, in public?

    The Dana in Kentucky (facd7c)

  49. What? You only like contract laws for certain people?

    Just what part of

    I think the most conservative thing Trump did during his time in White House was to sue Stormy Daniels for a refund. If that’s not striking both a blow for morality and a blow for fiscal responsibility, I don’t know what is.

    nk (1d9030) — 11/11/2020 @ 4:18 am

    which you also copied and pasted in full implies that? Man, you can’t even say something nice about someone around here anymore without somebody jumping down your throat. $%^&ing Obama!

    nk (1d9030)

  50. The GOP makes a weak case in the court for repealing Obamacare and now the feel they can blame the court.

    MAYBE the Republicans are simply incompetent:

    Hmmmm I thought they had the court in their pocket now with Trumps three appointments

    Hmmm They made a weak case in the courts for voter fraud also.

    Knickerbocker Slobberknocker (27d313)

  51. @49 lol, nk I took your post as sarcasm.

    Is my sar-caso-meter broken?

    whembly (c30c83)

  52. 33. Dave (1bb933) — 11/10/2020 @ 11:03 pm

    That is not true. The House passed a plan. The Senate voted on three plans, the first of which was essentially the House’s plan.

    The newspapers didn’t cover it well (unless maybe you looked for it) but I think the hitch was the high risk pools to deal with people who had pre-existing conditions.

    The claim, I think, was that the math didn’t work out, or that the plan wasn’t complete. And, on the other side, that it cost too much.

    Democrats opposed it, I think, on the grounds that people who did not have continuous insurance could be left out. Or that insurance would be too expensive for people in te high risk pool. But I have only a vague idea.

    In any case, Democrats aren’t very honest on the federal level.

    Sammy Finkelman (00fff5)

  53. Public interstate highways aren’t a “right” either – but they are an obvious public good and an economic boon, even if some people pay more in taxes than others to maintain them and even though some people rarely use them.

    Leviticus (9d3248)

  54. 44. whembly (c30c83) — 11/11/2020 @ 6:55 am

    I think the SCOTUS will sever the mandate and uphold the rest.

    ongress severed the mandate in 2017.

    Or rather, they left it at zero, with the possibility of a future Congress raising the amount. The amount was actually too low to incentivize anybody. And it wasn’t collected, either. It couldn’t be collected, except through withholding tax refunds. And were there audits?

    Sammy Finkelman (00fff5)

  55. Sarcasm

    Etymology
    From Late Latin sarcasmus, from Ancient Greek σαρκασμός (sarkasmós, “a sneer”), from σαρκάζω (sarkázō, “I gnash the teeth (in anger)”, literally “I strip off the flesh”), from σάρξ (sárx, “flesh”).

    Usage notes
    Because sarcasm and irony often go together, people often use sarcasm to refer to irony. Strictly speaking, an ironic statement is one that means the opposite of its content, and a sarcastic statement is an acerbic or sardonic one. To distinguish the two, saying “Oh my god, I hate you!” to sincerely congratulate one’s best friend on their good fortune is ironic, but not sarcastic; saying, “I’m not a mind reader, okay?” is sarcastic, but not ironic.

    Just doing my best to keep things light, whembly. Some may say “clown nose on, clown nose off” but I say “I want to be enjoying these threads again”.

    nk (1d9030)

  56. @54 Congress only zeroed out the tax penalty Sammy, that’s not severing that law out.

    There’s a weird legal scenario in that we have a law that it’ll apply the penalty, but you don’t pay anything. Technically, if you’re assessed a penalty, other “penalties” could kick in simply because you were assessed a penalty (0$), which isn’t really the intent of Congress at the time, but couldn’t do anything else.

    whembly (c30c83)

  57. mr nk has broken almost as many sarcasmo-meters than president donald has promises

    Dave (1bb933)

  58. 36. whembly (c30c83) — 11/11/2020 @ 7:55 am

    There’s a weird legal scenario in that we have a law that it’ll apply the penalty, but you don’t pay anything. Technically, if you’re assessed a penalty, other “penalties” could kick in simply because you were assessed a penalty (0$)

    But in the first Obamacare case, Chief Justice Roberts interpreted the law so that that would not be case.

    Was Congress putting it back again? How so, when those clauses of the law were not touched.

    Sammy Finkelman (00fff5)

  59. @59 Sammy, Chief Justice Roberts reinterpreted the penalty as a tax. Even though the writers of the law stated that it was not a tax.

    That’s it.

    It’s only latter a GOP Congress zero’ed out the tax.

    This issue here is that the tax, was considered integral of the entire law. Now that it’s zero, is it still integral? Obviously not…hence why I think SCOTUS will sever the tax/mandate and leave the rest alone.

    The other part of the conversation, is that the courts usually relies on the law to determine what is severable or not (laws can be written to allow severability). However, in cause where the law doesn’t provide severable directions, the courts has in the past severed certain aspect of the law, so long as the intent of the law can still stand on its own. I think in most cases, the courts loathes to sever any peice of the law and rather strike the entire thing. Which forces congress to try again. But, the PPACA is a massive law and its to the courts interest to not rock the boat too much (ie, be deemed too political).

    whembly (c30c83)

  60. Part of the problem is that the GOP, including Donald Trump, ran on “repeal and replace,” but nobody had any idea with what to replace Offalcare. The idea that most conservatives wanted to replace it with the 2008 status quo, to replace it with the repeal of the concept that the government would take care of you, was one that the conservatives were to chicken [insert slang term for feces here] to say aloud.

    I can say it, ’cause I’m not running for anything.

    The Dana in Kentucky (facd7c) — 11/11/2020 @ 6:57 am

    If they wanted to do it they’d have done it. But they don’t. The GOP isn’t the small gov party any more. It’s not what they’re about. Now they’re an identity politics and conspiracy theory party.

    Time123 (235fc4)

  61. Now they’re an identity politics and conspiracy theory party.

    Corruption and election-stealing too!

    Dave (1bb933)

  62. The precedent for taking your money and giving it to someone else started with Social Security and Medicare. SS beneficiaries for the most part will receive far more in benefits than they pay into the system, and are supported by current workers.

    Source

    Rip Murdock (e4a538)

  63. Also the Virus Party:

    Is The White House Done With The Pandemic?

    I know they’re all busy right now with the kabuki legal effort to soothe the president’s bruised ego over the election but there *is* a major crisis unfolding and they … just don’t seem very interested in it.

    Asking for leadership and empathy is asking too much, I realize, especially after Americans committed the unforgivable sin of preferring someone else as president. But you would think the White House might want to make a pretense of caring if only to not cede that ground to Biden at a moment when they’re kinda sorta fighting for a second term.

    The usually astute Comrade Allahpundit overlooks the obvious: it’s all about the Benjamins, not any second term.

    Reminding people about the pandemic won’t help the Trump Lifestyle SuperPAC fleece his supporters, so who cares if 400,000 Americans are dead by the time he’s escorted out of the White House?

    Dave (1bb933)

  64. @64, I’m not trying to just be insulting. I’m listing the things that seem to motivate the parties actions, messaging, and base of support. I’m sure it’s incomplete, but during the Trump years that’s what I’ve seen.

    Time123 (52fb0e)

  65. Dana in Kentucky is right. It was repeal and replace. It always would be. You can’t just say ‘get rid of Obamacare’. President Trump did need to explain his alternative. He’s been all over the map over the years, and since he was elected has promised to detail his plan in a few days or weeks so often it is an internet meme.

    Just chalk it up to another broken promise. I know he gets a break on this because Biden must be a socialist and therefore binary choice, Trump must be much better and nothing is his fault. But the job didn’t get done.

    Fixing Obamacare would be incredibly tough. Obama barely pushed through this weak policy with massive shenanigans, and people in DC actually liked Obama. And BnP is right. Bush also did not replace Obamacare, because he did not have the foresight to time travel and do so.

    But excuses aside, the job ain’t done. The GOP is paying a price for nominating Trump instead of someone who promised a little less, but may have meant what he was promising to do.

    Dustin (4237e0)

  66. @65-
    Meanwhile DC fiddles while the nation burns:

    A political animal’: Atlas attacks Fauci, escalating feud between Trump’s pandemic advisers
    Dr. Scott Atlas, one of President Donald Trump’s chief coronavirus advisers, publicly attacked Dr. Anthony Fauci on Tuesday — accusing the nation’s top infectious disease expert of being a “political animal” who adjusted his dire assessments of the pandemic after Election Day.
    ……..
    ……. Atlas said on Tuesday that perhaps Fauci had “cheered up because of the election,” echoing the president’s unfounded allegations that elected officials and even his own administration’s health experts are being dishonest about the pandemic in an effort to dent his political fortunes.
    ……..
    Atlas calling Fauci a political animal is like the pot calling the kettle black.

    Rip Murdock (e4a538)

  67. Mr Murdock said:

    Atlas calling Fauci a political animal is like the pot calling the kettle black.

    Which does not, of course, mean that the pot wasn’t right.

    The Dana in Kentucky (facd7c)

  68. Time123 (235fc4) — 11/11/2020 @ 8:28 am

    The GOP isn’t the small gov party any more. It’s not what they’re about. Now they’re an identity politics and conspiracy theory party.

    Almost. The GOPe hasn’t been small gov or conservative for a while. I don’t know where you’re getting identity politics from. That sounds like you’re trying to repurpose that term.

    There are a lot of people who’ve traditionally voted GOP who are realizing they aren’t and maybe that’s who you’re tagging as the conspiracy wing. But conspiracy theories in general seem evenly spread around.

    frosty (2f13ff)

  69. “I would prefer to see those who cannot afford health care suffer for it, and die earlier, rather than to see the entire country suffer through ever-increasing socialism.”

    No one says it because it’s impractical. We’re not a libertarian society….as each national election confirms beyond dispute. We don’t let Darwin dispose of the poor or those unfortunate enough to face health catastrophes. Medicare is socialism and it isn’t going anywhere….not just because old people vote….but because we are all shooting to be old one day….and you never know what your financial situation is going to be.

    But it’s also not the right question. Are there better ways to structure the financing and incentives of the system to provide more access and efficiency? How do we achieve greater cost transparency….greater supply of medical care….fewer regulations to impede technology development and choices…..and less 3rd-party payments? It’s really complicated….and people don’t like to risk when it comes to their health care. We could decouple insurance from our employment…but then you might lose the leverage of buying as a collective. Do rates go up? Will employment compensation increase accordingly?

    Are people shrewd health care shoppers….would they be better if costs were more explicit? Should insurance be even covering routine medical treatment…or should it be left for exigent circumstances? But you have to get the masses to agree. I’ll give the DEMs credit for trying even though their plan has problems and has little cost containment. Trump brought no ideas to the table….and the GOP has not advanced any piece of meaningful reform legislation since 2011. This has been a big whiff by my party.

    AJ_Liberty (ec7f74)

  70. We’re not a libertarian society

    Correct. Americans aren’t mature enough to manage their personal finances in a responsible manner and accept the consequences for their own decisions. They’d rather suckle at the government teat.

    norcal (a5428a)

  71. CBS has a SWAT episode about a virus at 9 pm

    Sammy Finkelman (00fff5)

  72. 72. Actually, the television program really was abot something else, but the non-flashbsck part was set in March, 2020.

    New episodes of TV programs have started. The new Young Sheldon which really should have been the finale for last season, was last week, November 5 at 8 pm. Soap operas also have new episodes.

    Sammy Finkelman (00fff5)


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