The Supreme Court spent the first part of the morning debating the "severability" question, and as Lyle Denniston reported, we learned a bit from the proceedings -- most notably what the justices think of Congress.
The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.
A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
Of particular interest was the justices' opinions of Congress -- it turns out, American voters aren't the only ones who hold lawmakers in low regard -- which was characterized as an institution incapable of creating a new health care law. Denniston added, "Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to "the real Congress or the hypothetical Congress."
I'd also note that Kagan complained at one point about "the complex parliamentary shenanigans that go on across the street."
How dysfunctional is Congress? The legislative branch is now being openly and repeatedly mocked by Supreme Court justices during oral arguments -- eliciting laughter from those in attendance.
Congress, they were laughing at you, not with you.
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Laugh as we might at Congress, the Supreme Court is just as much a joke. It has become so politicized, that the only question left seems to be, what Sophist language can they come up with in order to pretend they had a seance with the founding fathers.
You are correct. If the court strikes down the law and issues another controversial decision, they run the risk that if the Dems control Congress, there may be calls to rein in the justices who are flouting conflict of interests and politicizing the court. It is very possible that justices will find themselves facing ethics rules that could restrict their outside activities. I don't think the conservatives want to gamble that Congress may crack down on them which is why I think the decision is going to be a compromise in that Kennedy will not strike the whole law, just the mandate. This would not be a victory for either side.
I find myself believing more and more that if they overturn ACA, they're handing the election to the Dems. Dems will be energized and turn out, Repubs will have a hard time running on "Repeal and Replace" when there's so little left to repeal.
I wonder if anyone on this politicized court, e.g. Roberts, is concerned about this possible even probable outcome.
You could be right. If the judges toss the mandate or the law, then it takes an issue away from the Republicans. They can't run against an issue that no longer exists so they might have to talk about the ECONOMY and JOBS.
The only way to remove a justice is by impeachment, which would be a monumental waste of time.
If the Dems have the House, they could impeach the judges. But it is unlikely there would be enough votes in the Senate to remove the judges without very serious charges. Thorough investigations, particularly with some of these judges, would be far more damaging and could move the Senate to impose rules of ethics on the judges of the Supreme Court. I don't think Roberts wants to be the chief judge whose inaction caused the investigations and rules because it would be a major legal embarrassment for him and some of the judges. The opinions of the Roberts court that could be seen as clearly political (Bush v. Gore, Citizens United), would be tainted and easily ignored and overturned by a subsequent court if the Congress found that the court was being politicized. Roberts would be open to criticism from every respectable law school, law firms, attorneys and legal scholars. He does not want to be stigmatized because he would be a persona non grata at many legal functions and his stature greatly diminished in legal history.
The grounds for impeachment are the commission of "high crimes or treason". neither of which have been met. The House may sulk and complain, but a co-equal branch of government, There's nothing that can be done. The House can't even impose ethics standards.
That's the beauty of it! It doesn't need to succeed. They tied Clinton's second term in knots even though his impeachment went nowhere. I can't imagine the Court getting much more work done in their attempt to dismantle the 20th century if proceedings against Thomas were initiated. Even juicier, Roberts as Chief Justice would preside over the Senate trial of his colleague.
But with Congressional investigations and hearings, the judges have no control over the proceedings which is not something they are accustomed. Those investigations can be long and drawn out with a constant drip of questionable judicial conduct. That is called death by a thousand cuts.
You know you suck when SCROTUS is laughing at you, but it's not the Democrats that screw it up, it's the GOP, mostly.
And, I guess it is mostly the conservative Justices that have politicized the court and not the liberal ones?
The idea that just the Left has a lock on being non-political is growing to be more and more of a laughing point (and area of frustration) for me. Many suggested several times to go ahead and pass the healthcare reforms on which both sides agreed (things like extending parental coverage to college students and pre-existing condition coverage) but President Obama and the Democrats didn't want to work on the common ground.
Rob, I know you're not new, I've seen your name around TRMS blog for a while. So I'm sure you know the segment and blog posts TRMS has presented about the extremity of the Republicans over the past 30 years or so followed by the rather steady-to-conservative position that the Democrats have taken over the same time period.
You might want to re-familiarize yourself with that information.
Sorry RobDon, but the more liberal Associate Justices have never accepted speaking fees from organizations that have a vested interest in matters before the Court. Nor have any of them gone duck hunting with the Vice President weeks before an important matter was to be argued, as Justice Scalia did. Nor have any of the more liberal Associate Justices spent weekends at the guest of left wing think tanks, as Justices Scalia and others on the right have done. Nor have any of the spouses of more liberal justices been paid hundreds of thousands of dollars by groups with a direct interest in overturning ACA, as Justice Thomas' wife has done and to his personal benefit.
You're trying to create a false equivilency and it doesn't work.
Not for nothing, RobDon, but Pres. Obama and the Democratic Party were interested in passing reform that amounted to more than the "incremental change" the GOP lobbied for. CBO scored the Republican healthcare reform "plan" and found that it was so incremental, it would have only covered approximately 3 million more people than no "plan" at all. It wouldn't even have covered the entire population of Mitch McConnell's home state of Kentucky!
Kentucky QuickFacts:
http://quickfacts.census.gov/qfd/states/21000.html
CBO report on GOP HCR Plan:
http://voices.washingtonpost.com/ezra-klein/2009/11/congressional_budget_office_th.html
And for what it's worth, Pres. Obama publicly stated several times that if a healthcare reform idea was presented that 1) didn't increase the deficit, and 2) was a fiscally-sound concept, he was open to it, whether it be Democratic or Repubican -- there are over 200 GOP ideas included in the final form of the Affordable Care Act - the individual mandate being one of them.
I refer those who think that our Congress is remarkable for its incompetence to Mark Twain, more than a century ago:
Also consider that Twain, as many did, considered this to be a feature, not a bug.
Kagen didn't just make a dig at Congress. She also dinged Scalia:
Whoa! I can't ever recall one Associate Justice calling out another Associate Justice in an open session - even if she directed her dig at Justice Scalia's clerks who she clearly regards as idiots. But, by extension, she was calling Mr. Scalia an idiot at the same time.
Good for her!
This Supreme Court is a joke, three of them are openly Koch brothers jesters, being wined and dined and speaking at Heritage meetings. Two others are quietly siding with the Tea Party. Corporations are people, Citizens United and if it further enriches the wealthy that is how it votes, Thomas's wife openly opposes health care. Sad day for the working poor and us unemployed.
I loved your pointing out the hypocracy of the Republicans as they add more and more government intervention into our lives, heaping more riches onto the wealthy while taking even more from seniors and the needy. It just amazes me to see the elderly seniors being lead down the garden path by lies, hard to believe they all suffer from dementia. As those GOP women, none of them use contraception? Who are they kidding, how will they vote when alone in a booth?
Yea, they should be more upstanding like the Wisconsin judges...oh, wait, that's not right. Hypocrisy grows rampant on BOTH sides of the aisle. Its just here, you only will see one side of it.
Wisconsin Judges? Like who, Prosser?
It is time to read-re this,http://faculty.virginia.edu/lsanders/adler073001_p... by Renata Adler about Bush v Gore, which, in 2001, was "the most lawless decision in the history of the Court." It can never be surpassed, but it is about to meet its soulmate.
Book Adler, TRMS. You will not be disappointed and we will all be enlightened.
Congress: Repeal & Replace.If only it were that simple.
Sorry, joca41, you cannot repeal and replace congress- like SCOTUS, they effectively have "Lifetime Appointments".
First of all, I am deeply disturbed at how ill-prepared the Solicitor General has been throughout the proceedings. As Paul Krugman noted this morning, "... the administration’s lawyer seemed unprepared to explain the difference. (The Obama administration has been weirdly inarticulate on this stuff from day one; Mitt Romney has done a better job of explaining the mandate than the president has)."
Beyond this and more to the point of Steve's post, when Bush v Gore was decided I was dumbfounded at what was clearly a politically motivated and ideological ruling that had nothing to do with "justice." It began to shake my faith in the high court. When Citizens United was handed down, I couldn't believe what the Court had just done, essentially turning our democracy over to the highest bidder. If ACA is overturned, in whole or in part, it will be obvious to me that the current makeup of the court cares not one whit for precedent, for statutes or for the Constitution.
When the integrity of two of our three branches of government comes into question, we are all in deep doo-do.
Agree with you 100%. Therefore, I can't imagine giving the GOP/TP the keys to the Executive Branch. The country would not have any balance in government. The GOP/TP has control of the majority of states and a large percentage of their state houses. How these states and state houses are governing, make me cringe. The U.S. House of Representatives is not much better and the GOP/TP members in the U.S. Senate with their filibustering is just as bad. To give the GOP/TP control of our government from the federal level down to the local level will give them absolute control to do anything that they want and we will not be able to do very much about it. Dangerous for the populace!
As far as Romney goes, he has yet to explain anything except that he wants to be President.
I'm a macroeconomist and, in my view, one of the signal accomplishments of the Affordable Care Act, a law of the land let's remember, is to extend insurance coverage to the largest possible pool of individuals, thus moderating actuarial risk and presumably lowering the cost of health insurance overall. This isn't enough, though. Did you know that health insurance companies are exempt from antitrust law? I think concentration of markets grants health insurance companies the power to set rates and control revenue absent serious negative consequence. As a nation, we won't be able to corral and even reduce the cost of health insurance until Congress sets antitrust law on the insurers. But I wonder how significant health insurance companies' financial links with lawmakers are. Rachel, I do wish you might shed light on the matter of why health insurance companies are so (silently) powerful.
Charley James, Obama and team had months and months of preparation for this. They knew what types of questions would come from the justices, and rehearsed them for months. They weren't blind sided. These types of questions were all over the internet for the last two years. Don't blame the Obama hand picked attorney for not being able to defend the position. His problem was THE CONSTITUTION and the questions from the conservative justices. He had no answer for them because the mandate is not constitutional. The federal govt cannot force you to buy a product. If the federal govt can force you legally to buy something as important as health insurance, then they can force you to buy anything - Chevy Volt, organic food, a certain type of shoe, etc. This is not in the constitution. The Federal govt is only allowed to do what the constitution says, the rest is left to the states. It's a state issue per the constitution. Forcing everyone to buy health insurance is not under the federal domain. Interesting that all the websites and blogs, even the liberal ones, mostly quote the conservative justices who were prying at constitutional issues. Where are the liberal justices digging at constitutional issues with any real weight, intellectual argument, and scrutiny. The liberal justices don't care about the constitution, just their agenda.
If this is not constitutional, neither is Medicare. Once you reach age 65, you are forced to use it as your primary coverage - even if you already have health coverage. Even those not covered under Social Security (certain state and Fed retirees), must use it. And it is not free. You paid for it and continue to pay for it. Look at your pay stub or Social Security statement. If that's not a mandate, nothing is.
It seems the issue is whether the fine for not being insured is not a tax. What you pay for Medicare is a tax, clearly within Congress' powers.
Constitutionality of Healthcare?
The Constitutionality of the Healthcare Law is a bogus red-herring argument. Mandatory healthcare with mandatory monthly premiums already exists in the US. It is known as Medicare. It is required at age sixty-five. It is efficient and popular. Obamacare, as the right loves to call it, changes the numbers covered and who pays the providers. It also limits discrimination for denial of coverage. That cuts into profits of the insurers. The wealthy conservative right hates that.
Obamacare doesn’t matter to the rich. They will always have insurance. Employees of large corporations generally have insurance including non-management. Unions played a significant part in achieving this. Their gains forced corporations without unions to offer medical insurance for two reasons; the first competition for employees, benefits are better than no benefits when deciding where to work. The second reason is a real corporate fear that unions would be able to organize a non-provider of benefits.
The opponents of healthcare use a litany of phony arguments. The biggest of these is that it undermines the individual’s right to choose. It doesn’t. The choices that exist without the healthcare law are much more limited. The decision on who can have insurance belongs exclusively to the insurance companies. They set what is covered and what they will pay and how much an individual will pay for that limited coverage. They exclude pre-existing conditions. If an insurance company decides one is entitled to complete coverage with twenty-percent co-pay, but my premium will be 1400.00/mo. Is that really a choice for most people? I think not. The wealthy right thinks that is a viable choice.
Take a healthy employee of a large company that has coverage for himself and his family. They have a newborn that has a heart defect. The infant is covered, but that employee is now going nowhere. If he had to change jobs his youngest would certainly be denied coverage for the pre-existing condition. Before the new arrival, pre-existing conditions had no consequence, but after is a totally different story. Top line executives would never be forced to make a decision like that, which is the entire point of this screed. Obamacare would level the playing field somewhat.
The right targets the young in the work force. Why should they be required to buy health insurance? The answer is quite simple; it is a lifetime investment in their personal wellbeing and financial security. I have insurance, and I unknowingly swallowed a small fishbone. It perforated my intestine which created discomfort. I saw a doctor. The doctor sent me for x-rays. It required surgery and a three-day stay in the hospital. Total billed cost $29,000. The large insurance carrier settled with the hospital for $7300. The uninsured would have been on the hook for the extra $21,700. My age doesn’t matter. The cost was covered. Some other person without insurance, but with a savings account or home would have been required to pay that extra $21,700. That is the money hospital’s use to cover the cost of the uninsured that can never pay. Obamacare would go a long way toward eliminating the injustice as well as restrain the real cost. The wealthy would never have to pay that extra $21,700. It is a cost borne by the middle-class.
Excellent post - and I would just like to add to it that I'm a bit gobsmacked at the argument I've heard several times lately that it's "unfair" to require young people to purchase health insurance (gobsmacked because I've heard quite a few horror stories of 20-somethings who suffered terribly or even died, because of lack of insurance) -- but the ACA does have a clause that up to age 30, one can purchase catastrophic-only insurance (which will be one of the lowest-priced options on the Exchanges, and will still give entree to at least three doctor's visits in addition to the coverage for a catastrophic health event).
It's the Senate republicans not "the senate" who have stopped all legislation in order to prevent Obama from being re-elected. Isn't that really what is behind the 5 Justices agenda also since it is being called "Obamacare"? They think themselves infallible and untouchable and we have allowed them to become so. They forget their place.