The health care decision: Make your predictions

[PsyOps (Premo)]

Originally Posted by Tilted

Okay, I flipped a coin. I'm going with option #1 - the mandate is upheld. If we get a bunch of opinions today and health care isn't among them, I may change my prediction based on who authored today's majority opinions (and thus who is left without a majority opinion from the March sitting).

So, here are my guesses on the main questions:

(1) Does the Anti-Injunction Act bar a pre-enforcement challenge to the mandate? No.

(2) If no for (1), is the mandate Constitutional? Yes.

(3) If no for (2), how much of the PPACA is to be thrown out? The mandate and related provisions (e.g. community rating, must-issue) are thrown out, much of the law is left in force.

(4) Is the Medicaid expansion Constitutional? Yes.

(5) If no for (4), is the rest of the PPACA to be thrown out. No, just the Medicaid provisions.

I'm gonna speculate wildly and guess that Justice Kennedy writes the majority opinion. In essence, he says that mandates are almost never Constitutional but that this one is because of some unusual / exceptional circumstances. He fumbles over establishing principles whereby future mandates would be considered with the takeaway being this message to Congress: Okay, you get this one, but no more - most any other mandate you try to enact will not pass muster. Justices Scalia and Thomas write separate dissents. Chief Justice Roberts writes another dissent that reads only: "Seriously? You have got to be kidding me." Justice Scalia's opinion is the primary dissent being joined by the Chief Justice and Justice Alito and, maybe, Justice Thomas. Either Justice Ginsburg or Justice Breyer writes a concurrence joined by the other and Justices Sotomayor and Kagan.

Of course, all of that changes if the vote goes the other way - if the mandate is struck down. One thing I think is close to certain - Justice Thomas will write an opinion but it won't be the majority opinion. If the mandate is struck down, it will be an unjoined concurrence. If the mandate is upheld, it will be a dissent that is either unjoined or joined by only Justice Scalia.

I also think there's a fair chance that we get a separate majority opinion (and dissent if there is any) for the Medicaid issue.

I hope you're wrong. If the mandate is found constitutional, this will open the door completely for the government to force us to buy anything they see that fits within their loose interpretation of the commerce clause.

[Tilted (Premo)]

Originally Posted by PsyOps

I hope you're wrong. If the mandate is found constitutional, this will open the door completely for the government to force us to buy anything they see that fits within their loose interpretation of the commerce clause.

I hope I'm wrong also, and I wouldn't be surprised if I am. At this point, I'm basically just guessing between 2 possibilities that I see as nearly equally likely. I heard Justice Kennedy struggling with this during oral arguments, I could easily see him going either way.

[PsyOps (Premo)]

Originally Posted by Tilted

I hope I'm wrong also, and I wouldn't be surprised if I am. At this point, I'm basically just guessing between 2 possibilities that I see as nearly equally likely. I heard Justice Kennedy struggling with this during oral arguments, I could easily see him going either way.

So you're just setting yourself up for 1) not being surprised if it goes your predicted way or 2) not disappointed if you're wrong.

I'm going to set myself up for disappointment and go the other way. I just don't see the SCOTUS giving any green light to further loosening of what's supposed to be strict limits to government powers.

[Larry Gude (Premo)]

Originally Posted by PsyOps

I hope you're wrong. If the mandate is found constitutional, this will open the door completely for the government to force us to buy anything they see that fits within their loose interpretation of the commerce clause.

Here's the problem. One of the thoughts Tilted put into this was the general way decisions have been made for some time leading up to this and how that could be, should be, fairly indicative as to how this may be decided which leads him, if ever so slightly, to think it will be upheld. They, the court, have, in essence, upheld other laws that are essentially mandates. So, in a deeper sense, upholding this would not be as stunning a 'new' line of reasoning as we might like to think it is.

I mean, that is the big attack on this, what you are saying; "Oh! If they do this, then then Katie bar the door! Then, they can do ANYTHING!" Tilted, correct me if I am not representing your thoughts accurately but, you've been pointing out on this issue the last year or so that, basically, they HAVE been allowing stuff that would actually support upholding, yes?

My larger point is that while we who oppose are inclined to point out the Armageddon of it all, it's really not some stunning new level of court permissiveness.

[Tilted (Premo)]

Originally Posted by PsyOps

So you're just setting yourself up for 1) not being surprised if it goes your predicted way or 2) not disappointed if you're wrong.

I'm going to set myself up for disappointment and go the other way. I just don't see the SCOTUS giving any green light to further loosening of what's supposed to be strict limits to government powers.

I don't much care about being right in this case. It wouldn't mean much if I were anyway, only that I happened to guess right. If it were something that I thought I'd figured out and was very confident in my prediction, then I might care that I'd done a good job figuring it out - that I'd seen the crucial piece of the puzzle that mattered.

Here I care orders of magnitude more about the outcome being what I desire as opposed to what I predicted (or guessed).

At any rate, we should know in a few minutes whether the decision(s) will be released today. I still think it will be next week, but today's the first day I thought there was a real possibility - enough that I thought I should offer my guesses ahead of time.

[exnodak]

I'm certainly no legal scholar, but I see SCOTUS completely punting this one.

Isn't there a possibility that they may say something like: The part of this that is unconstitutional (the mandate) hasn't been engaged yet, obviating the injunction argument, and that the problem created by congress may yet be cured by congress making the issue moot for now?

Everyone seems to think that because they took the case in the first place that their opinion on the injunction issue is a foregone conclusion. I don't think so. I think they will throw this back to the political wolves.

[PsyOps (Premo)]

Originally Posted by Larry Gude

Here's the problem. One of the thoughts Tilted put into this was the general way decisions have been made for some time leading up to this and how that could be, should be, fairly indicative as to how this may be decided which leads him, if ever so slightly, to think it will be upheld. They, the court, have, in essence, upheld other laws that are essentially mandates. So, in a deeper sense, upholding this would not be as stunning a 'new' line of reasoning as we might like to think it is.

I mean, that is the big attack on this, what you are saying; "Oh! If they do this, then then Katie bar the door! Then, they can do ANYTHING!" Tilted, correct me if I am not representing your thoughts accurately but, you've been pointing out on this issue the last year or so that, basically, they HAVE been allowing stuff that would actually support upholding, yes?

My larger point is that while we who oppose are inclined to point out the Armageddon of it all, it's really not some stunning new level of court permissiveness.

Okay, so perhaps some more learned persons in constitutional law and precedence can show where the court made previous decisions that force us to buy something.

I agree it wouldn’t be surprising (although disappointing) if the mandate was upheld; it still opens the door for far more overreaching legislation. Amending Obamacare to ban certain foods or force you to buy certain foods because it’s best for your health would not be hard to do. I can envision no end to it.

[PsyOps (Premo)]

Originally Posted by exnodak

I'm certainly no legal scholar, but I see SCOTUS completely punting this one.

Isn't there a possibility that they may say something like: The part of this that is unconstitutional (the mandate) hasn't been engaged yet, obviating the injunction argument, and that the problem created by congress may yet be cured by congress making the issue moot for now?

Everyone seems to think that because they took the case in the first place that their opinion on the injunction issue is a foregone conclusion. I don't think so. I think they will throw this back to the political wolves.

Forcing a do-over is the same as saying it's not constitutional.

[Tilted (Premo)]

No health care opinion today, it will come Monday at the earliest.

[PsyOps (Premo)]

Originally Posted by Tilted

No health care opinion today, it will come Monday at the earliest.

Oh the drama.