>>>>...was the sound of Obamacare collapsing in on its indefensible self.
>>>>
>>>>2 years ago I posted The End of the Republic Thread #1456212
>>>>
>>>>Yesterday, like a phoenix, I saw a feather stir in her ashes.
>>>>
>>>>I watched with great amusement as various stories hit the wire last week about how Justices Roberts, Scalia and Kennedy would be upholding the individual mandate based on various decisions from the past. Going in to Tuesday's oral arguments, if one was so ill informed in the Constitution, one may have actually believed that one or maybe all three may come out on the side of upholding the law.
>>>>
>>>>3 minutes into his opening statement Solicitor General Verrilli is challenged by Kennedy "Can you create commerce in order to regulate it?" and a smile began to appear on my face.
>>>>
>>>>Then Scalia "if I'm in any market at all, my failure to purchase something in that market subjects me to regulation?"
>>>>
>>>>Then Roberts "the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it you're not sure that you will. But the same is true for health care."
>>>>
>>>>Then Alito "Do you think there is a market for burial services?"
>>>>
>>>>Verrilli's answers were weak. More important to listeners was the way he answered: unsure, stumbling & unimpressive. After 2 years to prepare he seemed to have no defense. Not surprising given that an individual mandate is indefensible under the US Constitution.
>>>>
>>>>By the time Ginsburg spoke up, she was basically offering Verrilli a life line, "Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money."
>>>>
>>>>30 minutes into Tuesday's arguments the writing was on the wall.
>>>>
>>>>Nearly every court watcher across the political spectrum agrees that the day was a disaster for the individual mandate, which of course makes it a glorious day for the Republic.
>>>>
>>>>The story today is not whether the mandate will survive, but rather whether or not the Court will strike down the entire law or just pieces.
>>>>
>>>>I still won't exhale until the actual decision is made but I feel a lot better about it today then I have in 2 years.
>>>>
>>>>My prediction, the mandate is the lynchpin and the whole kit-and-kaboodle is a goner.
>>>>
>>>>Transcript : http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-398-Tuesday.pdf
>>>>Audio : http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday
>>>
>>>Agreed. I certainly do not share your delight that we apparently will remain the only developed nation without a decent health care program.
>>
>>You are not suggesting that the PPACA is in any way related to a decent health care program? ;)
>>
>>Update : Perhaps if the PPACA was designed with the compassion of a developed nation like the NHS:
>>http://www.telegraph.co.uk/health/healthnews/9165629/Elderly-dying-due-to-despicable-age-discrimination-in-NHS.html
>>Somewhere Donald Berwick is swooning with romanticism. ;)
>>
>>>But it seems clear that Kennedy will join the four sure Republican votes on the court and torpedo the individual mandate.
>>
>>It also seems clear that the four sure Democratic votes will vote against the Constitution and the majority of the Court (and the country) in spite of the staggeringly unprepared Solicitor General's oral arguments. This is clear by 2 of them trying to make the Administration's case for Verrilli when he couldn't muster one.
>>
>>>It doesn't really matter whether they strike down the whole thing or not because without everyone having to contribute the economics just won't work.
>>
>>The economics don't work period. Even by the unrealistic CBO standards of calculation the projected costs have doubled since the day it was signed. And remember, that's a 10 year analysis based on 10 years of revenues and 6 years of benefits. What happens in the 2nd decade?
>>
>>>I am sure they have some legal rationale
>>
>>Legal rationale = It's unconstitutional.
>>
>>>but it puzzles me that this is the first time in nearly 80 years that the Supreme Court has seen fit to strike down legislation.
>>
>>I'm not sure where you're getting that (source please), however, even if true it's irrelevant (see next comment).
>>
>>>The way I learned it in school that is the role of the, you know, legislature.
>>
>>You also likely learned that the Supreme Court's is a check on the Legislative and Executive branches of the government to ensure they do not overstep the bounds of the Constitution.
>>
>>If you cannot see one, Carville and Reid providing a bright side for you to consider:
>>http://politicalticker.blogs.cnn.com/2012/03/27/carville-a-supreme-court-loss-will-help-democrats/
>>http://www.realclearpolitics.com/video/2012/03/27/reid_obamacare_being_overturned_puts_admin_in_better_position_for_the_election.html
>
>I don't know where I got the bit about the first time in 80 years. I really thought I read it somewhere, fairly recently, but obviously was mistaken ---
>
>http://wiki.answers.com/Q/How_often_has_the_US_Supreme_Court_overturned_legislation
>
>According to the GPO (Government Printing Office Database) the US Supreme Court overturned 158 Acts of Congress between 1789-2002, the most recent year for which information is available.
>
>The notorious Citizens United decision would be at least one more.
>
>What makes mandatory participation in health insurance unconstitutional?

Justice Kennedy :
- But the reason, the reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.
And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.

- Can you create commerce in order to regulate it?

If Congress can mandate you purchase something under the Commerce Clause, they can mandate you purchase anything.

>We all have to pay into Social Security.

That's a tax.

>We all have to pay income tax.

That's a tax, which took a Constutional amendment to apply, mind you.

>The difference eludes me.

Still?

>Well, I suppose one difference would be SS and income tax don't inconvenience gazillion dollar industries.

They inconvenience all industries as people have less to spend. ;)

>Neither do I buy it that the economics can't possibly work.

They don't work, not even by their own standards which the CBO uses to assess cost.

>We already pay a higher percentage of our GDP on health care than Canada and the European countries. Is there some special reason it can't work here?

Depends on what "it" is. ;)

For instance : We already have higher cancer survival rates than Canada and European countries. Is there some special reason it can't work there?

>Are we inherently dumber than they are?

Yes. Especially since our high drug costs enable their price controls. If we enacted price controls ...

>Wait, don't answer that.

Oops. ;)