Audio of Anthony Kennedy: The mandate fundamentally changes the relationship between citizens and the federal government

posted at 4:15 pm on March 27, 2012 by Allahpundit

Ed touched on this earlier but you should listen to the clip, as it’s surely the single most momentous exchange from today’s momentous hearing. If the mandate ends up being cashiered, this will be its epitaph.

A dirty little secret about Kennedy: He’s not nearly as centrist when it comes to the Commerce Clause and the Tenth Amendment as he is on, say, abortion and gay rights. He’s been the fifth vote for a conservative majority on several landmark cases finding limitations on federal power. I get the idea sometimes from righties who don’t pay much attention to the Court that they view him as another Souter, but that’s not remotely fair. In fact, it’s telling that he begins here by noting enumerated powers. The liberal view of the Constitution on economic regulation is, for all practical purposes, that the only restraint on federal power is the Bill of Rights. My sense of how they imagine those rights is as a sphere that’s been carved out that the feds can’t invade, but as long as they stay outside of it, they can do anything they want. In reality, of course, it’s the feds who are trapped in a sphere. That’s the point of enumerated powers — to lock them inside an area within which they can act but from which they’re not supposed to escape. Everything outside that sphere is reserved for the people and their state governments. (That’s the point of the Tenth Amendment.) Kennedy seems to take that same basic view. It’s entirely possible that he’ll drive a stake through the mandate’s heart.

But it’s also possible that he won’t:

Later on, it would appear that Kennedy had some doubt about whether the health insurance market was, in fact, a unique phenomenon. But near the end of the entire argument, when challengers’ lawyer Michael A. Carvin was at the lectern, Kennedy made a comment that he may have started to see the issue differently.

To understand its significance, the context of this later remark is important. Justice Breyer had again, as he had done several times during the challengers’ argument, stressed that Congress was confronted with a situation in whch some 40 miliion people did not have insurance, and that gap was, in fact, having an effect on commerce that was substantial. “So,” Breyer said, “I thought the issue here is not whether it’s a violation of some basic right or something to make people buy things they don’t want, bujt simply whether those decisons of that groujp of 40 milliion people substantially affect the interstate commerce that has been set up in part” through a variety of government-sponsored health care delivery systems. That, Breyer told Carvin, ”the part of your argument I’m not hearing.”

Carvin, of course, disputed the premise, saying that Congress in adopting the mandate as a method to leverage health care coverage for all of the uninsured across the nation. Kennedy interrupted to that that he agreed “that’s what’s happening here.” But then he went on, and suggested that he had seen what Breyer had been talking about. “I think it is true that, if most questions in life are matters of degree,” it could be that in the markets for health insurance and for the health care for which insurance was the method of payment “the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.”

If Kennedy can be persuaded that health care is sui generis, maybe he’ll split the baby by voting to uphold ObamaCare while emphasizing that a mandate for any other industry would be flatly unconstitutional. Not sure how that argument will work — listen to Roberts in the second clip below wonder why a cell-phone mandate would be any different than one for health insurance — but that’s the left’s best hope. Speaking of which, their explanation for today’s disaster appears to be not that they have a weak case on the merits but that Donald Verrilli’s performance was the legal equivalent of fumbling 10 times in the Super Bowl. In fairness to them, some of his exchanges with the Court are painful to read; the liberals on the bench had to bail him out repeatedly. But look: No case of this magnitude is being decided by oral arguments. If you think Breyer and Kagan and Sotomayor and Ginsburg were aggressive in arguing his case for him today, wait until they start going to work on Kennedy behind closed doors. Obama has four very good lawyers on his side in the Supreme Court’s chambers. Verrilli’s performance is unfortunate and terrible optics for O-Care’s superfans, but it’s not changing any votes.

Here’s the full transcript of today’s argument and complete audio. If you have the time, dive in.

Update: Orin Kerr notes the million-dollar phrase in Kennedy’s comments today: “Heavy burden of justification.” He didn’t suggest that mandates are always and everywhere unconstitutional, only that in order to justify using one the feds need to point to some very special and compelling circumstances. The whole question now is whether the allegedly “unique” health-care market is special and compelling enough to get Kennedy to vote with the left.

Update: To see what I mean about the liberal view of the Constitution, read lefty Michael Tomasky wondering why we can’t settle this issue with simple democracy. America elected a Congress that passed a mandate; if the people don’t like the mandate they came up with, let ‘em elect a new Congress to undo it. In other words, in lieu of enumerated powers in Article I, he’d apparently let Congress run wild with regulation and leave it to voters to rein them in. That’s a fine idea, and the Court’s ridiculously expansive Commerce Clause jurisprudence sometimes flirts with it, but it’s not the system we have. Enumerated powers mean something or they don’t.


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BobMbx on March 27, 2012 at 7:13 PM

One merely has to look at the Euro to see what happens when governance dreams up these ideas to “increase uniformity and spread the increased costs.”

Pretty soon everyone has nothing.

coldwarrior on March 27, 2012 at 7:17 PM

Verilli tried to use that case in his argument and Scalia demolished him. People who grow marijuana are unequivocally participating in a market, even if they are growing it for themselves. People who choose not to buy health insurance and pay for their own health care costs are not participating in the insurance market. Apples and oranges.

rockmom on March 27, 2012 at 5:04 PM

That’s good to know. Thank you.

Gelsomina on March 27, 2012 at 7:17 PM

Want to reform healthCARE? Get rid of insurance. Period. Suddenly, that MRI will cost about $10.00. And don’t start with the innovation and R&D crap. The cost of that will plummet likewise.

Its all relative. And the US Treasury artificially keeps prices high by providing “a backstop” for those that can’t afford to pay. Funny, no matter how much the government pays, there’s always another group that can’t afford the service and must rely on the government.

Tuition, healthcare, the mortgage market, energy, you name it. If the government participates in a market, that market is over-priced.

BobMbx on March 27, 2012 at 7:09 PM

A freaking Men, Bob.

Whether its corporations or government paying for healthcare (and now governments paying corporations for healtcare with ObamaCare) the problem is exactly the same – the consumer of the services and the payer of the services are now separate and incommunicative. Adverse price incentives go out the window.

You remove third parties at all unnecessary points (ie having an insurance company pay for your bottle of Advil), insurance costs will drop.

Chuck Schick on March 27, 2012 at 7:21 PM

Levin just validated my perception that this is ALL about the funding of the unsustainable Medicaid’s cost-shifting !
He says he’ll post links to that on his website, by tomorrow.

pambi on March 27, 2012 at 7:22 PM

Silly me. I always thought that more choices provided competition and results in lower costs to consumers no matter the market.

So I guess, by Chucks’ logic, that Big Oil, Big Pharma, Big Defense, Big bank, etc. is a good thing. Uniformity and all that.

All in all we’re just another brick in the wall.

BobMbx on March 27, 2012 at 7:13 PM

Either I’m misunderstanding you or you’re misunderstanding me. :-)

Chuck Schick on March 27, 2012 at 7:22 PM

You remove third parties at all unnecessary points (ie having an insurance company pay for your bottle of Advil), insurance costs will drop.

Chuck Schick on March 27, 2012 at 7:21 PM

I wouldn’t go so far as saying eradicate the insurance industry. But make insurance do what it was supposed to do, i.e. literally insure people who willingly participate against catastrphic risk which would otherwise bankrupt them.

gryphon202 on March 27, 2012 at 7:23 PM

People who grow marijuana are unequivocally participating in a market, even if they are growing it for themselves. People who choose not to buy health insurance and pay for their own health care costs are not participating in the insurance market. Apples and oranges.

rockmom on March 27, 2012 at 5:04 PM

Good to know he got it half right. Too bad about the first part. Growers who don’t go to a market are not participating in the market. How else would you opt out? If you can’t opt out then you are not free.

pedestrian on March 27, 2012 at 7:25 PM

I wouldn’t go so far as saying eradicate the insurance industry. But make insurance do what it was supposed to do, i.e. literally insure people who willingly participate against catastrphic risk which would otherwise bankrupt them.

gryphon202 on March 27, 2012 at 7:23 PM

No I’m not, and I agree with you 100%.

If auto insurance worked like health insurance, you’d have to file all your maintenance as claims – tires, oil changes, belt changes. Think how much that would increase costs, even without all the fraud you’d be asking for from all the shady mechanics you see on Dateline.

Chuck Schick on March 27, 2012 at 7:27 PM

If the federal government can force you to purchase a product and force the church to provide a product can they force you to make a product or maybe pick cotton?

Redglen on March 27, 2012 at 7:28 PM

I’m a very busy CPA, so I only had a chance to quickly scan the news today, but it sounds like Obama’s legal stooges didn’t have a particularly good day at SCOTUS.

Can anyone tell me:

Did Thomas have any interesting questions for the clueless SG?

Did the wise Latina say ANYTHING worth repeating today or was she simply providing cover for the vapid crappy leftist arguments like the other 3 “living breathing Constitution” doofuses?

Did the attorney arguing against Obamacare have any good shots against said doofuses?

Marybeth on March 27, 2012 at 7:28 PM

All I see here are people in denial about the problem of healthcare system.

0bamaderangementsyndrom on March 27, 2012 at 6:23 PM

You’re blind. You see nothing. Nobody is denying the existence of a problem.

You are being told that your solution sucks.

blink on March 27, 2012 at 7:26 PM

Repeat after me, kids:

Government

is

the

problem

!

gryphon202 on March 27, 2012 at 7:40 PM

…I agree with you 100%.

Chuck Schick on March 27, 2012 at 7:27 PM

You honor me, Chuck. I never get tired of hearing people say that. :)

gryphon202 on March 27, 2012 at 7:41 PM

I’ll bite on Breyer re: “affect the interstate commerce”

where is the interstate portion? As far as I see it, healthcare is a point-of-sale paradigm.

There’s so many arguments against like 70% of what Congress and fiat regulatory bodies attempt to pass off, it’s like playing solitaire on my computer…easy.

John Kettlewell on March 27, 2012 at 7:42 PM

You’re blind. You see nothing. Nobody is denying the existence of a problem.

You are being told that your solution sucks.

blink on March 27, 2012 at 7:26 PM

Actually there is no problem. Uninsured medical care that is pushed off onto other people accounts for a grand total of 2% of all medical care in this nation. 2% is not a problem. The uninsured are not an undue burden.

All the problems we have with medical care can all be placed directly on the shoulders of government intrusion into it. There are no hospitals that will shut down because an uninsured person did not pay. Those hospitals have other far larger problems that put them in that position. Many times it is medicare and medicaid patients that are causing the problems with those hospitals, as the government’s dictated rates warp cost benefit analysis and the fact that third parties are paying for everything, patients demand far more care than they need.

astonerii on March 27, 2012 at 7:43 PM

patients demand far more care than they need.

astonerii on March 27, 2012 at 7:43 PM

As well as physicians who are forced to practice defensive medicine and require all sorts of tests and diagnoses procedures so they will not be sued to oblivion.

As for the patients…yes, too many times the attitude is “well, if it is free, then I will have more of it.”

coldwarrior on March 27, 2012 at 7:48 PM

astonerii on March 27, 2012 at 7:43 PM

BINGO !
Have we forgotten just how desperately they shoveled this thing onto us via ‘crisis control’ ???
Check Levin’s website tmrw, if you want links to this perspective, since he just covered that.

pambi on March 27, 2012 at 7:52 PM

Actually there is no problem.

astonerii on March 27, 2012 at 7:43 PM

That depends on what you mean by “problem.” There is most certainly a problem, but government is the problem. Government is not a problem, it is the problem. To enlisted government in solving the problem that government created in the first place is nothing short of idiotic.

gryphon202 on March 27, 2012 at 7:53 PM

Either I’m misunderstanding you or you’re misunderstanding me. :-)

Chuck Schick on March 27, 2012 at 7:22 PM

Anything is possible.

I took your comment to mean you were supportive of centralized government planning and control.

BobMbx on March 27, 2012 at 8:02 PM

“their explanation for today’s disaster appears to be not that they have a weak case on the merits but that Donald Verrilli’s performance was the legal equivalent of fumbling 10 times in the Super Bowl.”

Bad analogy – a team with an argument this weak would never have even made the playoffs.

stout77 on March 27, 2012 at 8:07 PM

Chuck Schick on March 27, 2012 at 7:22 PM

Anything is possible.

I took your comment to mean you were supportive of centralized government planning and control.

BobMbx on March 27, 2012 at 8:02 PM

Anything Chuck says in support of centralized government control can be assumed to be read with a large dose of snark and sarcasm. Chuck and I are on the same page in this matter, as we are usually.

gryphon202 on March 27, 2012 at 8:09 PM

Actually there is no problem.

astonerii on March 27, 2012 at 7:43 PM

That depends on what you mean by “problem.” There is most certainly a problem, but government is the problem. Government is not a problem, it is the problem. To enlisted government in solving the problem that government created in the first place is nothing short of idiotic.

gryphon202 on March 27, 2012 at 7:53 PM

This. I could probably do a search of HA archives and find where I said this many years ago at the outset of the healthcare debate, but I don’t know how.:)
The point is many polls said, “there is a problem with healthcare.” This was used to justify the governments meddling. However, noone ever defined the problem in the polls so politicians could address what they believed to be the problem. Since the problem was never defined precisely, the solution could be whatever those in power wanted it to be, and in fact could change in midstream from health insurance is too expensive, to we have to pay for everyone’s healthcare because it is a right.

txmomof6 on March 27, 2012 at 8:12 PM

I get the idea sometimes from righties who don’t pay much attention to the Court that they view him as another Souter, but that’s not remotely fair.

Sure it is, depending on the issue. I get the sense that Kennedy loves being the swing vote on cases that have severe consequences. The question is whether or not he wants to be the guy that fundamentaly changes the role of government in all our lives. And that is sadly an open question.

Happy Nomad on March 27, 2012 at 8:15 PM

What a dog and pony show, at least to those of us who cannot view it first-hand.

IF the “Supremes” had any conscience of their oath to uphold the U.S. Constitution, under which governance is law, there wouldn’t be any question as to the illegality of mandating citizens to enter into any contract.

Further, if the Court rules the mandate stands, what need is there for congresscritters, senators or federal judges?

If the Federal government can mandate its citizens to purchase anything, we have no need for the “checks and balances” for the three legs of government the constitution provides.

So, Supremes, while you whittle away the weeks between now and June, when you’ll presumably hand down your decision, consider this. What use will you be to the American people if the Congress and the Executive can simply mandate beyond the bounds of our constitution.

None. It would make the nine of you, and your opinions moot.

Not to mention your salaries and benefits. Come to think of it, congressional and senatorial salaries and benefits would become inexcuseable to the American taxpayer. (Why pay the exhorbitant salaries and benefits to elected people who no longer matter in the grand scheme of things.)

Also, if we’re no longer going to abide our constitution (and therefore the 10th), we no longer have need for state governments–think of all the money we could save! We’ll certainly need every cent of it if you find this mandate within the law.

I suppose it could put a dent in the national debt, along with state debts.

jersey taxpayer on March 27, 2012 at 8:15 PM

Actually, most of us don’t like either one. The difference is that one is a legal and proper use of state power, exercised through a legitimate democratic process and supported by the population affected, while the other is an illegitimate use of federal power, rammed through in an undemocratic fashion against the clearly expressed will of the people.

rockmom on March 27, 2012 at 7:07 PM

Ive never claimed that Romneycare was unconstitutional. Nor could it be, since it’s a state level program, and the federal Constitution has nothing to say to states outside of enumerated powers, including the Tenth Amendment.

So unless a state law specifically violates those enumerated powers, it can’t very well be unconstitutional.

The only exception to that are those rights in the Bill of Rights that were specifically incorporated to state governments in the Fourteenth Amendment.

So laws are only bad if they’re specifically unconstitutional?

If a former governor had pushed for laws ascribing the death penalty to marijuana users, would it be unconstitutional?

No. But it would be a bad law, and I guarantee such a man running for president would have lots of opposition. And not one of his opponents would care when his defenders said, “But it wasn’t actually unconstitutional!”

The bottom line is: will you vote for a candidate who is perfectly fine with the government taking over the healthcare market? Or do you expect more of a president?

tom on March 27, 2012 at 8:21 PM

Bad analogy – a team with an argument this weak would never have even made the playoffs.

stout77 on March 27, 2012 at 8:07 PM

How do you expect anybody to argue and defend the indefensible. Health insurance is covered by the commerce clause because everybody will eventually need healthcare but food is not covered by the same clause? Do we all not need to eat? Health insurance is covered by the commerce clause because everybody will eventually need healthcare but funeral insurance is not? Will we all not die at some point?

No stout, this was not a football team that shouldn’t have made the playoffs. This was the AV squad showing up at the superbowl. I thank God that we have people like Scalia on the SCOTUS to point this stuff out even as partisan whores like Sotomayer (who helped write Obamacare) were trying to lead the testimony.

Happy Nomad on March 27, 2012 at 8:24 PM

People who do not have insurance are not any kind of “risk to the system.” Repeal the law that says ERs have to treat everyone who comes in their doors, and people will go back to paying what they can afford and insurance will go back to keeping people from going bankrupt after catastrophe. Real simple, no?

gryphon202 on March 27, 2012 at 7:17 PM

Gryphon, aside from the EMTALA, 1) many state laws, 2) centuries-old common law duties, and 3) medical/societal norms dictate that doctors must provide emergency care regardless of ability to pay.

Even assuming we scrap all of those, are you willing to let the poor die on the steps of a hospital because they can’t afford urgent care?

righty45 on March 27, 2012 at 8:25 PM

Want to reform healthCARE? Get rid of insurance. Period. Suddenly, that MRI will cost about $10.00. And don’t start with the innovation and R&D crap. The cost of that will plummet likewise.

Its all relative. And the US Treasury artificially keeps prices high by providing “a backstop” for those that can’t afford to pay. Funny, no matter how much the government pays, there’s always another group that can’t afford the service and must rely on the government.

Tuition, healthcare, the mortgage market, energy, you name it. If the government participates in a market, that market is over-priced.

BobMbx on March 27, 2012 at 7:09 PM

A freaking Men, Bob.

Whether its corporations or government paying for healthcare (and now governments paying corporations for healtcare with ObamaCare) the problem is exactly the same – the consumer of the services and the payer of the services are now separate and incommunicative. Adverse price incentives go out the window.

You remove third parties at all unnecessary points (ie having an insurance company pay for your bottle of Advil), insurance costs will drop.

Chuck Schick on March 27, 2012 at 7:21 PM

Very true. Insurance is supposed to cover you for the costs you can’t anticipate, not for every doctor’s visit or prescription.

But it’s hardly necessary to abolish insurance. Just get the government out of the insurance business, remove all those high-sounding but expensive requirements such as requiring insurance to cover whatever condition or medicine a political special interest group is whining about, and insurance becomes a personal choice. People who are healthy can save a few bucks with a higher deductible policy only covering bigger problems. People who need more insurance can pay extra premiums.

Costs for medical care would go way down very quickly.

tom on March 27, 2012 at 8:26 PM

IF the “Supremes” had any conscience of their oath to uphold the U.S. Constitution, under which governance is law, there wouldn’t be any question as to the illegality of mandating citizens to enter into any contract.

jersey taxpayer on March 27, 2012 at 8:15 PM

The problem with Supreme Court Justices is that they develop a God-like mentality. Forget uphold, they think it is their mission to edit the Constitution.

That the individual mandate of Obamacare even needs one second of discussion is absurd. If the SCOTUS were doing its job they would dismiss the law on that alone. But, of course, this is the same group of job-for-life jurists who decided in the Kelo decision to change when government can seize private property.

Happy Nomad on March 27, 2012 at 8:31 PM

That the individual mandate of Obamacare even needs one second of discussion is absurd. If the SCOTUS were doing its job they would dismiss the law on that alone. But, of course, this is the same group of job-for-life jurists who decided in the Kelo decision to change when government can seize private property.

Happy Nomad on March 27, 2012 at 8:31 PM

That alone, yes.

Since they did not, why would their existence matter going forth? How would they justify that job-for-life?

They couldn’t.

jersey taxpayer on March 27, 2012 at 8:42 PM

jersey taxpayer on March 27, 2012 at 8:15 PM

I just couldn’t agree more….. this is the way we are headed

MrMoe on March 27, 2012 at 8:44 PM

Obama wants to lose this. His lawyer is intentionally throwing the case. The mandate gets struck down, but the other provisions — “children” on their parents’ insurance until age 26, must cover all pre-existing conditions but cannot charge more for it — stay. The insurance companies will be belly up within two years and people will be screaming for the government to “do something.” Hello, single payer health care.

Rational Thought on March 27, 2012 at 4:21 PM

Wow. That gave me chills.

MadisonConservative on March 27, 2012 at 4:36 PM

I don’t think so. Mainly because the severability clause was deliberately omitted. Obama’s version of going All-In.

MetaThought on March 27, 2012 at 8:51 PM

To treat the uninsured, why didn’t Democrats just build up/add to the free clinics & health departments across the country? They could have used the money spent on Solyndra, Fiskars-Auto.

TN Mom on March 27, 2012 at 9:00 PM

Obama wants to lose this. His lawyer is intentionally throwing the case. The mandate gets struck down, but the other provisions — “children” on their parents’ insurance until age 26, must cover all pre-existing conditions but cannot charge more for it — stay. The insurance companies will be belly up within two years and people will be screaming for the government to “do something.” Hello, single payer health care.

Rational Thought on March 27, 2012 at 4:21 PM

Wow. That gave me chills.

MadisonConservative on March 27, 2012 at 4:36 PM

I don’t think so. Mainly because the severability clause was deliberately omitted. Obama’s version of going All-In.

MetaThought on March 27, 2012 at 8:51 PM

The problem I have with that argument is, they really, REALLY need the insurance companies. Someone has to pay for it, and without a separate set of companies for you to send your money to, they would have to raise taxes way too fast to be able to stay in office. Plus, when people are dissatisfied with their healthcare, they really, REALLY need someone to make a scapegoat.

Still, I can well believe that they haven’t thought this all the way through.

tom on March 27, 2012 at 9:00 PM

Those uncompensated workers who refrain from picking cotton are nonetheless affecting the cotton-picking market by driving up the work load of those uncompensated workers who willingly pick cotton, thereby inflating the cost of cotton to the end consumer.

Thus, the government has a valid argument that opting out of the cotton-picking industry is simply not possible, because even if you refuse to pick cotton you are still affecting the industry.

Thus, the mandate that uncompensated workers must indeed be forced to pick cotton whether or not they want to is self-evidently Constitutional. The government, in order to standardize cotton prices, is allowed to round up those uncompensated workers.

Preferably with hound dogs and burning torches.

Zombie on March 27, 2012 at 9:03 PM

To treat the uninsured, why didn’t Democrats just build up/add to the free clinics & health departments across the country? They could have used the money spent on Solyndra, Fiskars-Auto.

TN Mom on March 27, 2012 at 9:00 PM

How about spend that money on the Mexican border and eliminate half of the ‘uninsured’?

slickwillie2001 on March 27, 2012 at 9:15 PM

Anything is possible.

I took your comment to mean you were supportive of centralized government planning and control.

BobMbx on March 27, 2012 at 8:02 PM

The complete opposite.

That clown said once we have finally have real competition due to the ObamaCare exchanges, healthcare costs will drop. Hilariously clueless.

ObamaCare specifically kills all sorts of plans, especially high deductible catastrophic coverage, so that it is no longer possible to buy insurance that actually functions as insurance. Insurance is simple the vehicle to which costs are spread equally.

Socialism via forced commercialism. Brilliantly implemented, but will unquestionably be disastrous in practice. Just wait till 2014.

Chuck Schick on March 27, 2012 at 9:17 PM

How about spend that money on the Mexican border and eliminate half of the ‘uninsured’?

slickwillie2001 on March 27, 2012 at 9:15 PM

Yep!

TN Mom on March 27, 2012 at 9:19 PM

Very true. Insurance is supposed to cover you for the costs you can’t anticipate, not for every doctor’s visit or prescription.

But it’s hardly necessary to abolish insurance. Just get the government out of the insurance business, remove all those high-sounding but expensive requirements such as requiring insurance to cover whatever condition or medicine a political special interest group is whining about, and insurance becomes a personal choice. People who are healthy can save a few bucks with a higher deductible policy only covering bigger problems. People who need more insurance can pay extra premiums.

Costs for medical care would go way down very quickly.

tom on March 27, 2012 at 8:26 PM

Tom- I am not at all for abolishing insurance. I think insurance should go back to what it was intended to do: protect people from catastrophic loss, not act as everyone’s personal health care concierge service.

And the worst part is the hybrid public/private coverage mess we have. Assuming the massive Medicare cuts in ObamaCare go into effect (which I am doubtful) doctors and hospitals will see reimbursement rates drop sharply.

Hell, if we just enacted the far-smaller $15B annual cuts in place since 1997, doctors would see 20-25% drop in Medicare income. ObamaCare is somewhere in the $50-$100B a year range, which is why I don’t think it will ever happen. The country will just run deficits forever or repeal it.

So if doctors and hospitals take 25-50% drops in Medicare rates, they will:

1) Drop patients
2) Refuse to take on new patients
3) Raise rates on every private insurance company to make up for government sticking them with the bill

#3 has been happening for quite a long time.

Chuck Schick on March 27, 2012 at 9:28 PM

If Obamacare is not unconstitutional, then nothing is. If it somehow gets past the Supreme Court, then all 330 million of us will have a change in our status with our government: we go from “citizens” to “subjects.”

Presidents will still have “Hail to the Chief” played when they enter the room but we will all be genuflecting to the Secretary of Health and Human Services.

KCsecurity1976 on March 27, 2012 at 9:31 PM

A dirty little secret about Kennedy: He’s not nearly as centrist when it comes to the Commerce Clause and the Tenth Amendment as he is on, say, abortion and gay rights. He’s been the fifth vote for a conservative majority on several landmark cases finding limitations on federal power.

For whatever reason, Kennedy seems to have moved somewhat to the right since O’Connor retired. He was great on the two Second Amendment cases, Heller and McDonald. That said, he also provided the fifth vote on that horrible, horrible Kelo vs. Conneticut case, so there are definite limits to his conservative credibility.

Hayabusa on March 27, 2012 at 9:44 PM

States are not limited to enumerated powers; the federal government is.
Attention ABRtards, for the nth time: That’s the difference between Romneycare & Obamacare.

Dark Star on March 27, 2012 at 4:51 PM

One is bankrupting the country at a national level, and the other is bankrupting a state at the state level!

At least the Constitution isn’t being shredded at the state level… only the integrity of the Governor who signed it into law.

Yes, you’re right. I should definitely vote for him…

dominigan on March 27, 2012 at 9:45 PM

Even assuming we scrap all of those, are you willing to let the poor die on the steps of a hospital because they can’t afford urgent care?

righty45 on March 27, 2012 at 8:25 PM

What is it about health care that makes it so different from other industries, anyway? In every other industry of humankind’s endeavour, we pay for what we can afford. Why not health care? What makes health care a right?

I’ll answer my own question, since you seem to be missing a very salient point here. A “right” does not cost anyone else besides myself to exercise. I have the right to keep and bear arms, but I don’t have the right to have my arms paid for by someone else. I have the right to freedom of speech and assembly, but I don’t have the right to force anyone to be an audience, nor do I have the right to remain free of criticism for my speech or associations. Soooooo…at what point does the “right” to health care stop being a right and start being an encumbrance?

gryphon202 on March 27, 2012 at 9:50 PM

“lefty Michael Tomasky wondering why we can’t settle this issue with simple democracy.”

That’s the problem with the left and Tomasky’s ilk – they believe the majority vote should apply. That’s not how the USA is formed, being based on the Constitution which enumerates LIMITED powers for the Federal Congress and Administration.

Of course, if the votes were going against what Tomasky wanted, he would be screaming for filibuster and a Senate 60-vote, as the Democrats perfected when in a minority position.

Jimbobby on March 27, 2012 at 10:43 PM

As for the patients…yes, too many times the attitude is “well, if it is free, then I will have more of it.”

coldwarrior on March 27, 2012 at 7:48 PM

Those freeloaders have nothing on the people who are forced to pay for something they do not want. Or to pay for more than they want. People who see it as free do use extra services. People who see it as being stolen out of their pockets, well, they are a whole different breed.

A woman I know and her kids were always on that title 9 or what ever it is. They abused that system like it was the ugliest and most foul of red headed step children. They would use it to get doctor’s excuses so they could go to amusement parks while everyone else was in school. Got tons of narcotics that one of them sold on the street.

astonerii on March 27, 2012 at 10:51 PM

That depends on what you mean by “problem.” There is most certainly a problem, but government is the problem. Government is not a problem, it is the problem. To enlisted government in solving the problem that government created in the first place is nothing short of idiotic.

gryphon202 on March 27, 2012 at 7:53 PM

My second paragraph covered that. But to shorten your looking at it. I agree fully with you on that aspect.

astonerii on March 27, 2012 at 10:52 PM

It’s a multi-fanged problem – just getting rid of insurance won’t stop cost shifting. You have to put an end to the people that don’t pay their bills. Your insurance company and you are paying not for your care. You are paying for your care and the 10 illegals that walked into the emergency room and needed treatment, and had no money.

You have to deal with that somehow or all the hospitals will go under in short order.

I have some ideas.

1: Let hospitals go after debts owed them as aggressively as a bank.

2: Healthcare is a SERVICE – a COMMODITY – it’s optional. It’s a luxury. If you can’t afford it, you should not get it. If you can’t pay for your 2nd triple by-pass, either thought your insurance or out of pocket, then no, you can’t have it. You don’t pay for my Lexus, why should I have to pay for your luxury items?

3: Your illegal? No hospital for you or your family. Go die in the streets. Sounds like a good incentive for you to go back home to me. 2 Birds one stone. You show up at a hospital and are illegal, ICE shows up and you are deported within the week.

When I grew up, taking care of the family was the responsibility of the family – if Grandma does not have insurance, and can’t afford the hip replacement, than she can either do without, or your family can coalesce and scrape together the funds to pay for it as a group. That’s what a good family does.

It’s not the job of the government. The fact that people have worked to make it so is an affront to liberty in this nation.

SilverDeth on March 28, 2012 at 1:18 AM

States are not limited to enumerated powers; the federal government is.
Attention ABRtards, for the nth time: That’s the difference between Romneycare & Obamacare.

Dark Star on March 27, 2012 at 4:51 PM

It was “Legal” in Russia when Stalin starved the Ukrainians to death by the millions. Note that his acting under the color of the law to manufacture a famine in Europe’s bread basket didn’t make it “moral.”

SilverDeth on March 28, 2012 at 1:21 AM

Why is this so hard to decide? If you want to change the Constitution then there’s an amendment process to go through. Outside of that, all else is unconstitutional.

racquetballer on March 28, 2012 at 7:30 AM

States are not limited to enumerated powers; the federal government is.
Attention ABRtards, for the nth time: That’s the difference between Romneycare & Obamacare.

Dark Star on March 27, 2012 at 4:51 PM

Look, if Romney is the nominee, I’m most likely going to vote for him – and frankly there doesn’t seem to be any other option at the moment. But saying something is constitutional – which we can all agree that Romneycare was – and saying it is a good policy or indicative of conservative leanings, is two very different things.

Raising taxes through the roof is constitutional.
Deficit spending is constitutional
Every law that congress clearly has the power to pass is constitutional

Jut because something is constitutional does not make it right, or good policy or conservative. This “but its constitutional” argument in favor of Romneycare misses the entire point. Who cares? Yes, Romneycare is constitutional. It is still a terrible, terrible idea that is extremely liberal that Romney supported. So – your argument is that he supported a constitutional policy that is extremely liberal!!! Wow. Romney is the best. Why don’t we just run a tax and spend governor who favors abortion and gay marriage and eliminating the military? After all, taxing and spending is constitutional. Abortion is a constitutional right currently according to SCOTUS. There is nothing unconstitutional about gay marriage. It would not be unconstitutional to eliminate the military

So, do you see how the whole “constitutional” argument is meaningless? We are talking about the fact that he supported (still supports) a horrible, extremely liberal policy as governor. Whether or not it is constitutional does not change that fact.

It looks like we have no choice and we will have to vote for him. That doesn’t mean we think he is a conservative or will be a great president or are excited by him or even that he’ll do anything of value (like repeal Obamacare if SCOTUS does not strike it down). Will he be better than Obama? Yes. that’s not saying all that much though.

Monkeytoe on March 28, 2012 at 8:24 AM

blink on March 28, 2012 at 2:37 AM

Yes and no. Obamacare did not address the problems there are. When you look at Obamacare, the problems it was designed to address do not exist. That is why I say, there is no problem. It is stupid to allow the progressives to brainwash yourself into accepting their version of things. The uninsured ARE NOT A PROBLEM. The amount of money that the uninsured fail to pay IS NOT A PROBLEM. It is 2% of all medical spending. It is 1/2 the amount of money and 1/5 the amount of loss as a percentage that the government is perfectly happy to lose every year running Medicare/Medicaid to fraud which would be way easier to address than forcing people to buy a product they do not want to buy. As for preexisting conditions, companies that drop people after they get sick, those are one and the same. Companies drop people who lie on their forms that they do not have preexisting conditions and you cannot insure a preexisting condition, it already exists, there is no risk that you might have it, it is already there. But already most insurance companies start covering those preexisting conditions after a period of continued payments. Thus preexisting problems and dropped coverage are also NOT A PROBLEM they are working as they should already.

Now, where we do have problems is the continued increases in cost. This increase in cost for healthcare is all, 100% because of government meddling. The fact that most people never see how much their company pays for their health insurance, only seeing that amount that the company makes them pay for it, causes it to be something they do not push back on prices on. If they knew that they were not being paid about $15,000 a year because it was going to their mediocre health insurance premium, they might just push back. Every job I have, when they ask for opinions on what the company could do to make me happier, the very first line reads. Give me the money you would be paying for all the tax free benefits you offer that I do not care to be a part of. It is money out of my pocket, I want it for my uses. Medicare and Medicaid are even worse offenders for keeping the costs high.

astonerii on March 28, 2012 at 12:41 PM

I watched the movie Serenity again last night. It plays a lot like the situation with Obama and the leftists creating a better Universe for we the people. We can be there shortly if Obama’s moves towards a World Alliance aren’t stopped soon.

dahni on March 28, 2012 at 1:05 PM

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