healthcare law rule ruled unconstitutional, not enjoined

[kiryan]

http://www.nytimes.com/2010/12/14/healt ... ml?_r=1&hp

The administration has said that if that provision eventually falls, related insurance reforms would necessarily collapse with it, most notably the ban on insurer exclusions of applicants with pre-existing health conditions. But officials said other innovations, including a vast expansion of Medicaid eligibility and the sale of subsidized insurance policies through state-based exchanges, would withstand even a Supreme Court ruling against the insurance mandate.

“It’s our strongly held view that those provisions survive” in judicial decisions invalidating the insurance requirement, one administration official said, speaking anonymously because he was not authorized to discuss the case publicly.



So its just a federal court, its been ruled in other federal courts as being constitutional. The reason I'm posting is that this is the first time and the judge opted not to enjoin the law which was the wrong decision.

From what I read months ago, the healthcare law was written specifically without a severability clause from what I understand. This is because its a 3 legged stool, without one of the legs the whole thing must fail. Finding that the individual mandate is unconstitutional should mean that the entire law needs to be enjoined. However the truth of this seems to be less than certain. given the claims from the administration and the fact that the judge said it will affect the mandate and any section that refers to the mandate.

On the other hand, the provision doesn't take affect until 2014, so the argument can be made theres no urgent need to halt it immediatey. However if the law will be eventually overturned, all the current harm being caused by the unconstutional law would make a case to stop it.

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another article that kinda covers the whole separability issue.

http://online.wsj.com/article/SB1000142 ... Collection

Judge Hudson took some jabs at the law. In discussing whether Congress intended the law to stand if the mandate weren't included, he wrote that it was difficult to assess "given the haste with which the final version of the 2,700-page bill was rushed to the floor for a Christmas Eve vote."

But the administration argues that, should the mandate ultimately be struck down, courts should uphold most of the rest of the law. That would include the expansion of Medicaid to 16 million Americans, tax subsidies to help lower earners buy insurance and the creation of new exchanges where consumers can comparison shop for policies.

[Corth]

It all means very little. The Supreme Court will ultimately have the final say. FYI - the Supreme Court over the past decade or so has started a trend of limiting the US Government's powers under the Interstate Commerce Clause. There is a pretty decent chance they will concur with this Virginia judge. But it's a pretty uphill battle for the states - traditionally the Federal Government is given a LOT of leeway under ICC.

[kiryan]

What do you think about the lack of a severability clause? I saw the claim repeated on politico.com and there is no denying that healthcare reform is disastorous without the individual mandate.

Allowing the law to go forward and then later finding that a major component of it is unconstitutional would be very disruptive and represent real harm. Enjoining the law puts a halt to work, but it does not change the status quo in any significant way.

Its crazy so many bloggers on politico are predicting the law is sustained 8-1, 7-2 etc... I don't know enough about their decisions to predict how each judge would vote, but the 5-4 split on Citizen's united would be something I would look at as indiciative.

[kiryan]

http://thehill.com/blogs/healthwatch/he ... 2#comments

Obama officials warn of 'devasting consequences' if mandate struck down

I submit this as further evidence that the judge erred by not enjoining the entire law. Additionally, many of the articles cite legal arguments made by the defense citing the provision as critical to the law functioning properly and as intended.

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"As two federal courts have already held, this unfair cost-shifting harms the marketplace," Sebelius and Holder wrote. "For decades, Supreme Court decisions have made clear that the Constitution allows Congress to adopt rules to deal with such harmful economic effects, which is what the law does — it regulates how we pay for health care by ensuring that those who have insurance don't continue to pay for those who don't."

I found this argument interesting... Can the government write laws forcing private entities to provide charity care (usually as a condition that they accept payment from medicaid)... then turn around and argue that the resulting losses for charity care are "harmful economic effects" that then allow them to force you to buy healthcare insurance? Government was the source of the harmful economic effect in the first place!

[Teflor Lyorian]

Government health care refuses to cover life-saving operation for infant:
http://www.cnn.com/2010/HEALTH/12/09/in ... nt.needed/

Ironically, the same government that bans abortion after the second trimester.

[kiryan]

Active vs natural.

Its a crime if you swerve into someone and kill them on purpose. Its not a crime if they jump out in front of you, its just what happens.

[Teflor Lyorian]

And a mother rejecting a child isn't natural?

[Kindi]

"The Patrician took a sip of his beer. "I have told this to few people, gentlemen, and I suspect I never will again, but one day when I was a young boy on holiday in Uberwald I was walking along the bank of a stream when I saw a mother otter with her cubs. A very endearing sight, I'm sure you will agree, and even as I watched, the mother otter dived into the water and came up with a plump salmon, which she subdued and dragged onto a half-submerged log. As she ate it, while of course it was still alive, the body split and I remember to its day the sweet pinkness of its roes as they spilled out, much to the delight of the baby otters who scrambled over themselves to feed on the delicacy. One of nature's wonders, gentlemen: mother and children dining upon mother and children. And that's when I first learned about evil. It is built in to the very nature of the universe. Every world spins in pain. If there is any kind of supreme being, I told myself, it is up to all of us to become his moral superior.""

[Pril]

Active vs natural.

Its a crime if you swerve into someone and kill them on purpose. Its not a crime if they jump out in front of you, its just what happens.

Actually this depends Kiryan. If you are exceeding the speed limit and someone jumps out in front of you can can still be held liable since you may have been able to stop had you not been speeding.

[kiryan]

I'm thinking of people intentionally committing suicide. If they left a suicide letter behind, I don't think they could make criminal charges stick even if you were going 50 miles over the speed limit. They would probably cite you for felony speeding however.

In cases of accidents, you're probably going to get off as long as you weren't exceeding the limit by a grossly negligent amount. 10 miles an hour over the speedlimit in a 55 would probably not get you convicted, 30 in a 15 probably would. But we all know that the most important piece of data in these situations is the name/cost of your lawyer.

[kiryan]

Discussion on how the market will react and adjust to healthcare reform... The part from Tennessee governor saying states should drop healthcare for state employees should be especially alarming from the sheer numbers we are talking about. Good for state budgets (if they don't give them pay raises to justify dropping healthcare), bad for federal budget.

but basically... this is exactly what every republican knew would happen. People will drop coverage to get on the subsidies, the numbers won't add up, benefits will either be cut back or taxes must raise significantly. Actualyl some democrats knew it would happen too, but its what they want... everyone beholden to the public insurance system. You know, because they've done such a good job with medicare/medicaid.

http://www.politico.com/news/stories/1210/46428.html

But is that a reasonable assumption? Tennessee Gov. Philip Bredesen recently made the case that it isn’t. He argued that Tennessee and other states would be better off dumping large numbers of state employees into the exchanges and ending state-sponsored coverage.

Moreover, each day seems to bring fresh news of private employers running the numbers to assess their options, the only prudent thing to do given the financial stakes involved. They are, no doubt, figuring out that tens of millions of U.S. workers might be better off getting premium assistance in the exchanges than with the less-generous federal tax break, which accompanies employer-paid insurance premiums.

...

Over time, both employers and the labor market are certain to adjust to take advantage of the new subsidy structure. Employers with large numbers of low- and moderate-wage workers are likely to move them into the exchanges, even if it means giving their higher-salaried workers extra wages to compensate for the loss of the tax break for employer-paid premiums. As new businesses are formed, they could organize, in part, with a view toward taking maximum advantage of both the subsidies available in the exchanges and the tax break that remains for those with higher incomes.

The end result would be that enrollment in federally subsidized insurance in the exchanges would likely far exceed the 19 million people that the CBO has estimated. Indeed, the safe assumption is that an additional 35 million workers and their families with incomes below 250 percent of the poverty line — who would clearly be better off in the exchanges as opposed to on job-based coverage — could end up there over time, one way or another.

And when they do, costs will soar. (its silly to put a # on it since there are so many unknowns, but this guys estimates start at 1 trillion more than projected just with people < 250% of poverty).

[kiryan]

http://online.wsj.com/article/SB1000142 ... ons_health

New article on a similar case in Florida. Judge poses this question.

"If they decide that everyone needs to eat broccoli," then the commerce clause could allow Congress to require everyone to buy a certain quantity of broccoli, the judge said.

If they can require you to buy health insurance because inactivity constitutes economic cost shifting... why can't buying and eating brocoli not be mandated the same because failure to do so makes you less healthy which means consumption of medical services and costs?

Or how about a $5,000 a year tax surcharge for every tax payer unless you can provide documentation that you bought at least $5,000 worth of healthy organic food each year? Would that be within the government's "power" to tax?

What is the matter with you people, government power is not supposed to be unlimited. We grew up learning that the constitution and the 3 branches of government was designed as a system of checks and balances to LIMIT government.

[Teflor Lyorian]

The majority of antibiotics in the United States are given to livestock.