Our friend E. J. Dionne had a column earlier this week accusing the more conservative members of the Supreme Court of implying a wish to usurp the powers of the legislative branch — something more popularly referred to as “judicial activism” — in their comments and questions during the oral arguments on Obamacare:
It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.
Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship.
The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cellphones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others — often taxpayers — have to pay for…
I don’t know whether his inference is correct or not. He seems to be paying closer attention to the arguments than I am, so I’m inclined to give him the benefit on this. Perhaps they are presuming to judge the law on its merits rather than the law. If it were so, it would be a grievous fault — one that you may recall me getting on Sen. Obama’s case about, just before the 2008 election.
In any case, the paragraph in E.J.’s column that appealed most to me was this one:
Liberals should learn from this display that there is no point in catering to today’s hard-line conservatives. The individual mandate was a conservative idea that President Obama adopted to preserve the private market in health insurance rather than move toward a government-financed, single-payer system. What he got back from conservatives was not gratitude but charges of socialism — for adopting their own proposal.
I don’t entirely agreed with the first sentence — it sounds like Bud’s frequent assertions that conservatives are so awful that they should be given no quarter at any time. But the rest of it should be read aloud every day at the start of business in the Congress — and in our Legislature as well, given GOP lawmakers’ penchant for fulminating about the individual mandate rather than concerning themselves with state-level issues.
Yes, boys and girls. The reason there is a mandate to purchase private insurance in this bill is because of all the people on the right who won’t stand for doing the one sensible, rational thing that we should do — create a single-payer system.
Over and over, we hear extremists on the right (and increasingly, extremism has become mainstream among alleged “conservatives”) rant about this. Hey, I’m not crazy about a plan that requires us all to buy private insurance either. But because of opponents on the right, it was the only way we could do the one thing that must be done in any health plan that can be called “reform” — get everyone into the system.
And we all should remember that.
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Dionne’s first sentence is entirely correct. Name an instance in the past five years when going along with the GOP hasn’t resulted in their gaining far more than halfway?
I think EJ is really putting a poor spin job on what the Court did on the day they argued severability. I read the transcript, and the Justices (all of them) had good questions.
Also, EJ must never have heard oral arguments before, because they’re mostly “weird hypotheticals”. His trying to spin that as anything other than normal demonstrates a lack of knowledge about how oral arguments are done. Heck, I think about half of law school is comprised of “weird hypotheticals”.
One of the Court’s central purposes is to be a check against a legislature that has exceeded the constitutional limits. I think that even though it may be a “good idea” to get everyone into the system, the mechanism was fatally flawed because our federal government only has certain enumerated powers.
I thought it was a fascinating debate on the issue of severability, and I honestly don’t know what the best decision would be. It seemed that all the Justices agreed that this was a novel issue: Assume the heart of a law is unconstitutional – what do you do with the rest of it?
The questions they wrestled with were the role of the Court itself, it’s limits, and how the Court’s function relates to Congress’. I don’t really know what the best answer is if the mandate is found unconstitutional. Do you return the hollowed out shell of a law (half a loaf to Justice Kagan) or do you strike the entire law, or something in between?
It will be interesting to see how the Court resolves this issue, assuming of course they find the mandate to be unconstitutional, which I think, is still very up in the air.
EJ just seems to be engaging in a partisan polemic with this one.
If you want single payer all you have to do is accept a European style defense system.
No, I don’t. We can afford both.
Germany is engaged in at least one of the wars….of course, they have compulsory service….
I believe that the most telling question posed by the justices (I believe it was Kennedy but I do not remember for sure) was something to the effect of “Does Congress have the power to create commerce only to regulate it?) I actually applaud the questions about broccoli, etc because that is exactly the fear that so many of us have. If the government can force us to purchase health insurance, what else can they force citizens to purchase or do? I pray that at the very least the mandate is struck down.
Doug OECD nations achieve universal coverage some with and some without a single payer. The Swiss require all citizens to have insurance purchased from highly regulated private but nonprofit health insurance companies.
These systems cover all and they also have a single mechanism for payment so costs aren’t shifted by providers from one payer group to another payer.
These systems also allow citizens to purchase private health insurance to provide for services not required to be provided by the universal plans. This is similar to AFLAC in the US. It allows citizens to seek care in nongov’t owned hospitals.
@Ryan– There is a big difference between “forcing” someone to purchase health insurance and forcing someone to purchase broccoli. For one, if critical health care is provided without the prior requirement of purchasing health insurance, why should those of us who are responsible have to pay for those who choose not to purchase health insurance? You get the broccoli–you just may not have to pay for it. How is that fair?
Slippery slope arguments are lazy. We draw lines all the time.
People can’t afford to pay their power bill or rent, and the Democrats wants them to be forced to pay for health insurance. What are they supposed to pay with? Because the way I understand it, if they don’t they go to jail.
Doesn’t matter, the Supreme Court is going to come back with a ruling that’ll be a death sentence for Obamacare.
If they come back with a verdict that’s a “death sentence” for “Obamacare” it’ll also be a death sentence for some people throughout the country.
Maybe we should only provide enough “free” healthcare to avoid or abate a public health emergency. By public health emergency I mean an infectious pandemic, not an individual condition like type II diabetes or emphysema, just to name a few.
@Karen – So you’re saying that people are receiving a death sentence now? Because if Obamacare is declared DOA, what changes?
Judge Scalia should be ashamed of his ridiculous broccoli comment. Like Kathyrn said there’s no slippery slope here. The individual mandate is a Republican idea put forward in 1993 as a means of defeating Hillarycare. Once that mission was accomplished they never mentioned it again until Obama adopted it for his plan. Now it’s nothing short of an unconstitutional government takeover of the free market. What the GOP really wants is a return to the clusterfest of 2008 where costs were rising and the insurance companies were free to deny coverage at will. As for those uninsured, they will continue to flock to the ERA for problems big and small. And those of us with insurance, along with the government, will pay. Why that reality appeals to ANYONE is the real mystery.
Yep. In case you haven’t checked, if you are poor and go to the hospital, they’ll treat you for an acute problem, give you prescriptions, and send you home. There’s a limited amount of time you can stay in the hospital (I think a week, but I really don’t remember exactly). Let’s say you’ve got cancer. They take you in, diagnose you, give you some pain pills and some prescriptions that you can’t afford, and send you on your way. I’ve seen it done. In that case, it leaves you to die, as the song says “like a tramp on the street.” It’s very inefficient care for which all of us who have health insurance are paying now through higher payments, and a very expensive way to not care for our most needy.
Does it really matter who’s idea any portion of the act is? It’s the Supreme’s job to examine whether or not it’s Constitutional – not whether it might or might not be good for the citizenry. Isn’t it? Did I miss something in civics class?
@ Steven– “Obamacare” provides subsidies for those who truly cannot afford health insurance.
If one believes that universal healthcare COVERAGE is a govermental trampling of individual rights, then one should be an ardent supporter of medically assisted suicide for end-of-life circumstances.
Those where will it all end musings by Supreme Court justices reminded of the time my agitrated old landlady in Tours, France caught a fellow roomer storing a bicycle under his bed. Hysteria took hold. “First a bicycle, then a motorcycle, then a car. Next thing you know he’ll have an airplane up there”. She threw the boy and his bike out of the house.