Without the mandate, the ACA cannot stand as written. You either have to strike down the entire act, uphold all of it, or perform a rewrite and just call it a tax. Without the mandate, as written, you'd effectively bankrupt the entire health insurance industry, and the justices know that.

 

To put it in simple terms, no mandate = wait until your sick or on the way to the hospital to buy insurance...after you leave hospital, cancel it. They cannot reject you for pre-existing conditions, so there is no point in paying for insurance until you need it.

 

That won't just bankrupt the entire insurance industry, it will bankrupt the government programs, too...since suddenly the entire country would be on them all at once.

 

And that would be extreme judicial activism. The Supreme Court is supposed to rule on the law, not the consequences of the law. Bankrupting the system should be irrelevant to whether or not parts of the law are legal and whether those parts can be severed.

 

The Supreme Court decides law, it should not decide economic policy. If the Supreme Court was to rule in a fashion that would bankrupt the system, it would be up to Congress, to fix the law.

 

It would be unprecedented (at least from what Ive ever seen) to have a Supreme Court rule that the law is valid, but the economic consequences are so great that the law should be invalidated.

And that would be extreme judicial activism. The Supreme Court is supposed to rule on the law, not the consequences of the law. Bankrupting the system should be irrelevant to whether or not parts of the law are legal and whether those parts can be severed.

 

The Supreme Court decides law, it should not decide economic policy. If the Supreme Court was to rule in a fashion that would bankrupt the system, it would be up to Congress, to fix the law.

 

It would be unprecedented (at least from what Ive ever seen) to have a Supreme Court rule that the law is valid, but the economic consequences are so great that the law should be invalidated.

Of course, prior to the case being heard, the consensus of a huge majority of legal minds in this country was that striking this law down would be unprecedented judicial activism, and Hell most of them still think that.

Just have to wait and see.

Interesting volokh comment from Randy Barnett

Barnett's been doing victory dances over there for a while now, along with some of the other bloggers.

It really doesnt matter.

 

Whatever happens, you just play by the new rules. So if the court strikes it down, you either pass it again, you take on the court or you do nothing.

 

If you want change, attack the Court. Propose an amendment to the Constitution, that Supreme Court justices can be recalled, term limits, whatever.

 

For to long the Supreme Court has gone unchecked, its time for Congress to grow a spine.

 

its time for Congress to grow a spine.

They can be impeached. Term limits have their own huge problems e.g. term-limited Supreme Court Justices moving on to private sector positions.

 

If the ACA is struck down in part or in whole, nothing will be done on health care. It was far too bruising of a political fight for Democrats and they have nowhere near the numbers now.

Do you know how many Supreme Court justices have ever been impeached?

 

1

 

Over 200 years ago, and he was acquitted. Impeachment is not a practical solution to the problem of the Supreme Court.

 

As for Supreme Court Justices moving on after they leave, so what? A Supreme Court Justice can retire, they are not duty bound to serve until their death.

 

The point is if they didnt think theyd be there for 20-30 years, maybe they would be more careful in their rulings and actually try and have some consistency. It also would avoid the nonsense of Justices stepping down so that a President can replace them with their ideology, etc.

 

Appointment for life is just not something that resonates with modern America.

Term-limited SC Justices would be a very pricey legal commodity. We don't need more bought-and-paid-for influence in our courts.

Do you believe all judges are bought and paid for?

 

Because that is the natural end of your argument.

How so?

 

Having Antonin Scalia, former Supreme Court Justice, advocating for your case in front of the Supreme Court brings all sorts of problems to mind. Sure, he could retire and do so now, but he'd be giving up tremendous power. If he was term-limited out, it'd all but guarantee that he'd be doing just that (along with every other Justice).

 

Double the size of the court, maybe. Then every individual judge isn't so important, so the fights over lifetime appointments to single spots aren't quite as drastic. As it is, I believe we have one of the smallest Supreme Courts in the western legal world.

Okay so due to conflict of interest I think most attorneys would agree a reasonable solution would be to bar former justices from arguing at the Supreme Court level.

 

But even if we were to allow it, Scalia is not exactly an orator. In fact Scalia only had 1 case in 1976 before the Supreme Court.

 

The fact is, if you want to be a rich lawyer, you are not angling to be an academic or judge. If Scalia wanted money, he would have gone into private practice.

 

Most of these judges want power/influence.

 

(edit)

 

There are other options, you can have retention votes etc.

Edited June 26, 201213 yr by Soxbadger

Okay so due to conflict of interest I think most attorneys would agree a reasonable solution would be to bar former justices from arguing at the Supreme Court level.

 

But even if we were to allow it, Scalia is not exactly an orator. In fact Scalia only had 1 case in 1976 before the Supreme Court.

 

The fact is, if you want to be a rich lawyer, you are not angling to be an academic or judge. If Scalia wanted money, he would have gone into private practice.

 

Most of these judges want power/influence.

 

(edit)

 

There are other options, you can have retention votes etc.

 

I think this is a first, but I agree with your last few posts.

So, I've got dibs on the worst possible outcome, 5-4 vote that not only overturns the entire act but also declares that Medicaid can't be changed from it's original state because states would then have to opt-out of new rules, throwing maybe 100 million people off the insurance rolls.

 

(Edit: oh, and as this gets applied, it dismantles lots of interstate regulations, highway rules, pollution controls, etc.)

My prediction: 5-4 mandate struck down, instructions to congress to figure out how to save or toss out guaranteed coverage and community ratings.

Edited June 28, 201213 yr by StrangeSox

I'm following it here:

 

http://www.scotusblog.com/cover-it-live/

Interesting note from the SCOTUSblog coverage:

 

To answer another question, the provision requiring insurers to let young adults stay on their parents' insurance could get struck down if the mandate is invalidated and the Court decides that that the rest of the law (or some part of it) must go too. But some major insurers have announced that they will continue to allow the young adults to stay on even if the law is invalidated.

Interesting note from the SCOTUSblog coverage:

 

To answer another question, the provision requiring insurers to let young adults stay on their parents' insurance could get struck down if the mandate is invalidated and the Court decides that that the rest of the law (or some part of it) must go too. But some major insurers have announced that they will continue to allow the young adults to stay on even if the law is invalidated.

It's actually good business to do so...people aged 23-26 don't get sick all that often.

It's actually good business to do so...people aged 23-26 don't get sick all that often.

 

It's not extra revenue if you've got a family plan and already have a younger kid on it, though.

mandate survives as a tax

mandate survives as a tax

 

What exactly does that mean?

Mandate is found to be a tax, which is a power of Congress

 

Roberts joins the liberals of the Court.

Edited June 28, 201213 yr by StrangeSox

I'm shocked. Legitimately shocked.

CNN just reported the mandate was ruled unconstitutional

Edited June 28, 201213 yr by Athomeboy_2000