dayman

The states rights (in huge letters) argument suggest UConn James is against Federal healthcare reform. For obvious reasons, neither party takes that position. So question is "how" not "if" ....

Anyone interested in this debate should watch the GPS Special "Fixing Education." You can buy it for $2 on Itunes. It's a great piece on education. Actual smart reporting and analysis on the problem...ya know...something this board probably isn't interested in.

Touchy?

Secretary Palin

LOL lawyer speak. I drain porta potties for a living. In fact I ranked 51 in seniority so last Thursday I became a independent contractor around 10am. Don't doubt my **** speak.

It is your duty, if possibly, to fairly construe his words under the presumption that they were accurate.

Haha, I will agree that you find the dissent more compelling and I find the controlling law a better ruling. (in other words I'm right and your wrong )

As is always the case the court does not rule beyond what is necessary. As such you don't he didn't proclaim a bright line rule as he found: We have already explained that the shared responsibil¬ity payment’s practical characteristics pass muster as atax under our narrowest interpretations of the taxing power. That's not to say he was without comment, just read the back half of the summary on the first page. There you will find factors and considerations he used to reach that conclusion. As for the broader end of that spectrum, he references cases where they "policed these limits aggressively"...(so we could read those cases for more information on the outer limits) Just read the short summary in the first post for more specifics all the quotes in this post are taken from there.

The Congress can monkey with appellate jurisdiction b/c it is expressly in the text of the constitution. That's besides the point. The challenge to the validity of the Mandate necessarily turns on whether it's an exercise of commerce clause or taxing clause power. The Anti-Injunction act is relevant not b/c it would invalidate it but as you said early, it would effect standing. The relationship between creatures of congress to themselves and to the constitution is inherently different. As for there being no limits on the taxing power, that ignores the entire opinion Roberts wrote. While the limits are far broader than under the commerce clause, he went through the tax analysis precisely b/c at some point an exercise of that power ceases to be a taxing clause question and crosses over into the more limited commerce clause power. There is case law on that issue, and will no doubt be more in the future.

What you have described is your experience with your health insurance company. Nothing more. Lucky for you, the ACA will help people like you in the future a lot by regulating the behavior of insurance more closely and controlling the price of drugs. To suggest that is insurance generally, it wrong. I don't blame you for feeling as you do about your own policy/company and situation under those facts. Once again btw, many insurance companies have no investors and run not for profit models. And many that run for profit models vary in terms of their response to stories such as yours. Characterizing the entire insurance industry based on that example, is no accurate for the purposes of this discussion. Generally speaking the profit they pull is between 2 and 3 percent.

The anti-injunction argument is pretty basic actually. It's a statute, it's a creature of Congress. The Constitution is not. The Congress could not expand their powers under Constitution by labeling..that would be absurd, for that analysis the court must look to the substance of what Congress is doing and whether it is within their power. For the purpose of how their own statutes relate to each other however, a more textual approach is appropriate. How creations of Congress relate to each other is fairly cut and dry, look to what Congress wrote. And as Roberts said that has been the practice: Amicus argues that even though Congress did not label the shared responsibility payment a tax, we should treat itas such under the Anti-Injunction Act because it functionslike a tax. It is true that Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes simply by describing it as one or the other. Congressmay not, for example, expand its power under the TaxingClause, or escape the Double Jeopardy Clause’s constraint on criminal sanctions, by labeling a severe financial punishment a “tax.” See Bailey v. Drexel Furniture Co., 259U. S. 20, 36–37 (1922); Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767, 779 (1994). The Anti-Injunction Act and the Affordable Care Act,however, are creatures of Congress’s own creation. How they relate to each other is up to Congress, and the bestevidence of Congress’s intent is the statutory text. We have thus applied the Anti-Injunction Act to statutorily described “taxes” even where that label was inaccurate. See Bailey v. George, 259 U. S. 16 (1922) (Anti-InjunctionAct applies to “Child Labor Tax” struck down as exceeding Congress’s taxing power in Drexel Furniture). Congress can, of course, describe something as a penalty but direct that it nonetheless be treated as a tax for purposes of the Anti-Injunction Act. For example, 26 U. S. C. §6671(a) provides that “any reference in this title to ‘tax’ imposed by this title shall be deemed also to refer to the penalties and liabilities provided by” subchapter 68B of the Internal Revenue Code. When Roberts cites the absurdity of forcing someone to buy vegetables he is referring to that by regulatory authority. Not by taxing authority. And if you feel that the tax code should not be used as it has been, fair enough a lot of people feel that way. That's an issue for you to take up with Congress though, not the Supreme Court.

Yet: this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. -Scalia Dissent ...so they've never done it. At some point they had never done the above either. And if in fact the analysis goes to substance, I see no reason the door doesn't swing both ways. Well it's more that on one had we most decide what the law is and in doing so we must be mindful of the constitutional forces that pull in opposite directions and when the rubber meets the road with issues of federalism, spereation of powers, constitutional construction, and then...the anti-injunction act...it's clear that the creature of statute...the feeble (by comparison) anti-injunction act will be what is thrown under the buss (and obviously so). Even Scalia himself wasn't too pissed about that at least he didn't make a huge deal about it...

Scalia uses whatever suits him at the time. Thomas uses actual principle (regardless of what you think of that principle). In any event, I do agree that it is not the holding of the mandate as a tax but the Anti-Injunction analysis that was the most acrobatic. However, the absolute worst outcome for the country would have been to hold it a tax and then punt until 2015. Also, the analysis under that section does nothing of significance and is plausible enough...if the country was saved a crippling wait of uncertainty at the expense of the anti-injunction act that is nothing anybody can honestly say with a straight non-partisan face they care about.

Hard for me to see how the Conservative wing considers their opinion more conservative than Roberts. Federal v. State. Courts v. 2 branches. 2 sources of tension inherent in our system. If you can fairly construe it to be constitutional (as is your duty), and in such a way that narrows the possibility of future commerce clause expansion as well as bolstering States rights when is comes to taking some but not all the bribes the Federal Government will offer them...that to me is the most conservative holding there is. Splicing words in an asinine textualist nature and saying over and over the Federal government could have done this but that it's not what they could have done but what they did (while at the same time saying admitting it is your duty to "if at all possible" construe the statute as constitutional), looking to form over substance as to determine what they did...in general the dissenting opinion is just weak. But that's just me. And Scalia is typically weak to me when he gets his hard on textualist nonsense flowing. It was a tough case, and honestly given the apparent 3 approaches the court as a whole took....I have to say Roberts proved himself to be a good C.J. who IMO produced the best opinion of them all.

Consider the above before you walk around demonizing the insurance companies. (I believe I elaborated after you posted).

This is such a load of **** I stand in awe. Insurance has it's holes, but the crux of the problem is 5% of people using 50% of healthcare (end of life, fat unhealthy people), and providers being terribly inefficient which they are allowed to do based on the pay structure of insurance which followed the trend set by...you guessed it...medicare. Nobody anywhere in that system is anything but a rational actor, there are no evil people tanking America for personal gain. Most insurance companies make 2-3ish percent profit and a lot of them are not for profit anyway. Additionally the ACA mandates they used 80% of the money they take in on services and anything left over is paid back...on top of that the ACA is taxing the insurance companies more on that 20% left over. Plus they provide certain basic/preventative check up type services w/ no co-pay by law now...and they take you no matter how sick you are. In return of course, the mandate will compel people into the market. The bottom line is, as we all know, the cost of healthcare. There are some cost controls in medicare, and some substantial pay structure experimentation in Medicare to correct the trend it set itself decades ago. That of course, and unnecessarily sick people...people who are unGodly and unnecessarily fat and consume pills and operation after operation b/c they don't take care of themselves. And then of course the thing that every Republican said was "killing grandma" which is also reality...end of life care needs to have rational decision making in it. Every single other civilized nation realizes this. It's just insane to dump 100K into an extra year of ****ty quality of life for a 92 year old...that' sounds harsh....but it's the truth. And yes before anyone says anything, it would be the truth if it were me too. Long story short there are no "villains" but if you are looking for them they aren't the insurance companies. There's only one group that benefits from the rising costs and it sure as hell isn't them...we all know who that is....

And those were, one more time since I do not recall?

You can look around the world. There are virtues to the Sweedish system and drawbacks in the cost fighting effort. There are virtues to the system in Taiwan and there are drawbacks (politically this system is impossible in our country given our political madness and the gov't regulating premiums). And yes, believe it or not there are aspects of the British healthcare system that are positive, and I need not even mention there are drawbacks there. I still would not hesitate to say that given all the problems these other countries have with their approaches, the American system is a case study in "what not to do." So...where to go from here? In my opinion, we can start with the ACA, and move forward. There are a number of things in the ACA that do help some systemic problems today, there are a number of things that do help individuals today, there are a number of things that provide the seeds of change in medicare pay structure that should help the changes we must see over time, and of course there are a laundry list of things that are FAR from perfect and indeed some things that are just plain nonsense. So the question is, do you have a law that is perfect? Or do you have a starting point that can put us on the path to (in all likelihood) endless quest for perfectibility? Stop complaining, and tell your congressman and senators to shut the **** up, get to work, and make sure the good is implemented well, and mitigate the bad as well as destroying the toxic. It's called common sense.

Representation issues aside...you don't want a handful of unelected people sitting on life time appointments deciding what is and is no in the general welfare. If the issue is one of reform the basic system of representation we can talk but as we both know that would be entire different topic that could go 1000+ pages in an instant. It is important to have a constitution that sets some limits, but no words on paper can establish what is in the general welfare ... flawed as our system obviously is it's a dangerous assertion to imply that a group of appointed men w/ almost no accountability (in reality) after they take their lifetime seat should interpret what is and is not in our "general welfare" with anything more than the most deferential analysis. By statute the tax will never be more than the average cost of minimum essential coverage in your area. They have this in Taiwan. And it works great for them. Thing is, then the COST of CARE gets serious, and our doctors would NEVER EVER EVER do what their doctors do. But then again, the "entitlement" mentality is something that is a poor person problem the doctors are just fine they've earned their share. (I'm not anti-Doctor like that one poster btw just making a point). In any event we're moving towards the system they have in Sweeden, it's not a perfect law no law is...but it's a start and it's time to work on it. Some portions could theoretically be repealed that way, others can not. And I promise you, repealing the mandate and leaving some of those other provisions would drive insurance companies to the brink.

Semantics but b/c the court gave it this ruling it is right (until it's reversed). In any event the "general welfare" is ungodly broad in case law. Congress can spend for instance, "in the general welfare," to go break rocks on the moon if they want. "General welfare" is the "stretchiest" of phrases in Federal Conlaw. How do you make sure we don't spend on breaking moon rocks? You don't elect people who want to break moon rocks.

Take it up C.J. Roberts. It's a tax. And fyi it's 906 pages. I'm sure in the right font in could be 10,000 pages. So it could be 2700 pages if you wanted it make it. But it's 906 pages. Which is still a lot of pages.

Well that just isn't true. Maybe not in your circles...everyone knew it could be ruled on as a tax in legal circles. It was held a tax in lower courts long ago. Even here 3rdnlng and many others for instance, talked about the toothless nature of the mandate scathingly...basically making the argument unknowingly in previous healthcare threads. People can disagree but to say this is somehow unpredictable isn't true.

Your 10 year old kid is asking about the ACA? What in Gods name is going on in your house lol (just joking around btw don't take it the wrong way)

...hmmm....I'm not sure it adds any confusion to the issue though...it seems if anything to summarize the existing confusion over that issue in one sentence?

Nobody is above the fray at all times but we should all aspire to be above the fray don't you think?