Quotes of the day

“Although it would be folly to predict what the court will conclude, policy experts, insurers, doctors and legislators are now seriously contemplating the repercussions of a complete change in course two years after the nation began to put the law into place…

“The most ambitious provisions would be nearly impossible to salvage, like the requirement that insurers offer coverage even to those with existing medical conditions and the broad expansion of the Medicaid program for the poor. Popular pieces of the legislation might survive in the market, like insuring adult children up to age 26 through their parents’ policies, along with some of the broader changes being made in the health care system in how hospitals and doctors deliver care…

“‘The part I struggle with is how you undo two years worth of implementation,’ said Dr. Glen R. Stream, president of the American Academy of Family Physicians. ‘It would leave tremendous uncertainty about what is the direction we’re going in and that uncertainty would obviously affect the patients directly.'”


“‘A decision in the challengers’ favor … would lead to probably an array of attacks on different parts of the federal regulatory state because for the first time, you have five justices who are going to take very seriously limits on Congressional power,’ Tom Goldstein, publisher of SCOTUSblog, said at a POLITICO Pro briefing just before last week’s oral arguments.

“‘And so, a lot of things that Congress does that maybe framers of the Constitution would have thought are beyond what the true regulation of interstate commerce is — but which the modern Supreme Court has blessed — would be back on the table,’ Goldstein added…

“‘Is the court going to become a dedicated foe of all manner of social legislation?’ Lazarus asked. ‘If anything amounts to micromanaging rational choices by Congress, it’s this. Everyone acknowledges that it’s well within Congress’s power to regulate the health care market. … For a court to find a way to overturn that, second-guess that choice, I can’t think of a more radical transformation. The court would be basically reneging on the judicial restraint commitment it made in 1937-38 during the Roosevelt era.'”


“[I]t seems to me that a succinct answer to Justice Scalia’s question is that the commerce clause would not limit Congress’s ability to regulate broccoli — if members of the House and Senate were crazy enough to pass legislation requiring all of us to eat green vegetables and if that were deemed a rational way to regulate commerce. The same could be said of health clubs…

“Congress has the constitutional power to pass many bills that would strike most people as idiotic, but as a popularly elected assembly, it doesn’t. The Supreme Court itself has said: ‘The principal and basic limit on the federal commerce power is that inherent in all Congressional action — the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden the states will not be promulgated.’ And absurd bills like a broccoli mandate are likely to fail other constitutional tests…

“It seems curious that opponents of the health care law are now looking to the commerce clause, as opposed to the Bill of Rights, as a bulwark of individual liberty.”


“If there is a legitimate challenge to the law, my hunch is that it is likely to come over the question of whether the individual mandate is as narrowly drawn as possible to achieve its objective. If regulating the interstate market for health care requires regulating health insurance, and if assuring a healthy insurance market requires solving the problem of free-riders who drive up premiums and taxes for everyone else, then isn’t the solution to require everyone to buy ‘catastrophic’ insurance?

“Roberts asked that question twice, but got no satisfactory answer, either from the solicitor general or any of the other justices. The reason is that there is no good answer. The safer ground for health reform was always to base it, at least initially, on policies that cover major medical events such as a heart attack, a premature birth, or treatment of cancer or a serious chronic condition. Yet such an approach has always been rejected out of hand by liberal Democrats and powerful ‘disease lobbies’ who were intent on finally achieving health-care coverage that was both universal and comprehensive. Now their over-reaching has not only driven up the cost of health reform and made it difficult to win broad political support, but has also put the entire law in constitutional jeopardy.

“In the end, Roberts will see the institutional peril in overturning the most significant piece of domestic legislation in a generation, particularly in the wake of the overtly partisan decisions of Bush v. Gore and the Citizens United. With Kennedy in tow, the chief is likely to articulate a modest new limit on Congress’s power to regulate interstate commerce that would allow health reform to proceed in some fashion.”


“[I]n this case, nobody has said they want to stop government from providing universal access to health care. On the contrary, the plaintiffs have stated that a program like Medicare, in which the government provides citizens with insurance directly, would be clearly constitutional. They’ve also stated that a scheme of compulsory private insurance would be constitutional if somehow the government could make people buy it when they show up at the hospital — suggesting, as Elena Kagan stated, that the only problem with the Affordable Care Act is temporal.

“Most amazing of all: The plaintiffs have conceded that a universal health insurance program would be constitutional if, instead of penalizing people who decline to get insurance, the government enacted a tax and refunded the money to people who had insurance. As Sonia Sotomayor noted, functionally such a scheme would be exactly the same as the Affordable Care Act. Both the plaintiffs and some of the skeptical justices have also indicated that the Affordable Care Act would be constitutional if the law’s architects had simply used the word ‘tax’ to describe the penalty.

“Think about that for a second: If the justices strike down the Affordable Care Act, they would be stopping the federal government from pursuing a perfectly constitutional goal via a perfectly constitutional scheme just because Congress and the President didn’t use perfectly constitutional language to describe it.”


“[B]y requiring the private purchase of insurance, the mandate kept the true cost of the health care expansion off the government’s books, and largely out of the Congressional debate. As the Cato Institute’s Michael Cannon has noted, during the Clinton era the Congressional Budget Office scored an individual mandate as a form of government spending, which pushed the official cost of the Clinton bill into the trillions. But the Obama White House was savvier in its mandate design, and the C.B.O. was more compliant in its scoring. As a result, a bill that might require over $2 trillion in new health care spending — private as well as public — over its first decade was sold with a $900 billion price tag.

“So the mandate was politically brilliant, in a sense. But its brilliance was evanescent. Founding a new entitlement on an insider-friendly sleight-of-hand made the bill much easier to pass. But it’s made it harder to defend thereafter, both in the court of law and the court of public opinion…

“The reality is that the more treatments advanced medicine can offer us (and charge us for), the harder it becomes to guarantee the kind of truly universal, truly comprehensive coverage that liberals have sought for years. The individual mandate conceals these realities, but it doesn’t do away with them. If it’s repealed or swept aside, both left and right might be able to focus on a more plausible goal: not a perfectly universal system, but more modest reforms that would help the hardest-pressed among the uninsured.”


“A 2,700-page law is not a ‘law’ by any civilized understanding of the term. Law rests on the principle of equality before it. When a bill is 2,700 pages, there’s no equality: Instead, there’s a hierarchy of privilege micro-regulated by an unelected, unaccountable, unconstrained, unknown, and unnumbered bureaucracy. It’s not just that the legislators who legislate it don’t know what’s in it, nor that the citizens on the receiving end can never hope to understand it, but that even the nation’s most eminent judges acknowledge that it is beyond individual human comprehension. A 2,700-page law is, by definition, an affront to self-government.”


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