xkcd

by **Dark567** » Tue Mar 27, 2012 6:04 pm UTC

http://www.nytimes.com/2012/03/28/us/ha ... ndate.html

Spoiler:

So far its looking like this has a relatively large chance of being declared unconstitutional. A year ago it didn't seem like that would be the case at all.

by **Xeio** » Tue Mar 27, 2012 6:18 pm UTC

The bigger question I think, is if they do end up striking down the individual mandate, whether they will rule on just that part of the healthcare reform act or the act as a whole.

Oh well, we didn't need that better healthcare anyway!

by **mike-l** » Tue Mar 27, 2012 6:22 pm UTC

Isn't it customary for the supreme courts to be pretty adversarial to both parties in pretty much every case?

by **CorruptUser** » Tue Mar 27, 2012 6:23 pm UTC

I don't see how requiring every citizen to purchase healthcare has any precedence in US law. This isn't 'you have a car you must buy car insurance'*, this is you exist you must buy insurance. The President's argument is that you can avoid being forced to buy by making less money, but that is not an argument I'd agree with.

*Which is a State law, and pretty bullshit anyway. The reason being that with these 2 ton death machines, you could injure someone else so you should have some insurance to help pay for the injuries. But the minimum insurance is $25k. $25k? Yeah, that's going to replace a lost leg. The minimum insurance should be 10 times that.

by **Ghostbear** » Tue Mar 27, 2012 6:25 pm UTC

While it does seem the chances for the law being upheld went from favored to not favored today, I'm skeptical of any claims of anything being very likely at this point. The court isn't expected to make its decision until June, I believe. There's a lot of decision making and time for internal SCOTUS discussion, which I could easily see having an outsized influence on events.

Xeio wrote:The bigger question I think, is if they do end up striking down the individual mandate, whether they will rule on just that part of the healthcare reform act or the act as a whole.

They debate that tomorrow.

by **Dark567** » Tue Mar 27, 2012 6:27 pm UTC

CorruptUser wrote:I don't see how requiring every citizen to purchase healthcare has any precedence in US law. This isn't 'you have a car you must buy car insurance' (which is State law), this is you exist you must buy insurance. The President's argument is that you can avoid being forced to buy by making less money, but that is not an argument I'd agree with.

The justice department has gone back and forth calling it a tax sometimes(which the federal government clearly has the right to do) and calling it a fee. The entire first day of the hearings concerned this, and the back and forth between the president, DoJ and the claimants and their diffing definitions of taxes, fees and penalties and if there is even a difference.

by **Garm** » Tue Mar 27, 2012 6:27 pm UTC

At this point, any decision that comes from the court will be made on political grounds, not legal merits. Roberts is in between a rock and a hard place. Regardless of his decision, he's going to piss someone off.

by **Dauric** » Tue Mar 27, 2012 6:47 pm UTC

Scheduled hearings will end on Wednesday, 2 hours each Mon, Tues and Wed. I think predictions of which way they'll go can wait another day.

NPR is all over the healthcare case, it's been their focus since Monday.

by **Heisenberg** » Tue Mar 27, 2012 6:50 pm UTC

Garm wrote:At this point, any decision that comes from the court will be made on political grounds, not legal merits.

What?

Are you saying that the Supreme Court has no legal standing to judge the constitutionality of a law expanding the power of the federal government?

Or are you attacking the partiality and politics of the Court (because in this case it might screw you over)?

by **Ghostbear** » Tue Mar 27, 2012 7:03 pm UTC

Heisenberg wrote:Are you saying that the Supreme Court has no legal standing to judge the constitutionality of a law expanding the power of the federal government?

That's a silly and hostile question. Why would you think Garm doubts that the supreme court has the authority to make a judgement on constitutionality? Only an idiot would doubt that. Garm appears to be doubting that the court would reach their judgement in an apolitical fashion.

Heisenberg wrote:Or are you attacking the partiality and politics of the Court (because in this case it might screw you over)?

There's a decent chance of the politics of the court result in the law being upheld, due to Roberts taking into account the legacy of the court he presided over. Also, nothing about Garm's post implies how they think those politics will influence the outcome. Garm could just as easily have been alluding to the Ginsburg, Sotomayor, Kagan and Breyer being assumed to be "in the bank" for upholding the law, Thomas being assumed to be automatically be against the law from the very start, or maybe they feel that Thomas and Kagan should have recused themselves, or maybe something I haven't thought of. There's a lot of ways for someone to argue that politics is going to intrude itself into the court's ruling.

by **Dauric** » Tue Mar 27, 2012 7:05 pm UTC

The interesting question here is the one that's been termed the "Broccoli Question", though the debate in chambers seems to have skewed in to weird and irrelevant analogies involving cars or televisions.

In a nutshell it is: Can the federal government force you to buy broccoli?

Which is actually a potentially relevant analogy. The health-care mandate forces individuals to take an affirmative action and enter in to a commercial transaction under the rationale that everyone will need medical care at one point or another. Everyone will need food at one point or another and obesity is an (ahem) expanding problem, so does the same rationale allow the government to mandate your food purchases meet some criteria?

by **Dark567** » Tue Mar 27, 2012 7:08 pm UTC

Dauric wrote:In a nutshell it is: Can the federal government force you to buy broccoli?

I don't believe the analogy exactly holds. But I think the only acceptable answer is no.

by **Dauric** » Tue Mar 27, 2012 7:11 pm UTC

Dark567 wrote:
Dauric wrote:In a nutshell it is: Can the federal government force you to buy broccoli?
I don't believe the analogy exactly holds. But I think the only acceptable answer is no.

Not exact, but analogies rarely if ever are exact matches. It is however a closer analogy than cars or televisions.

by **Ghostbear** » Tue Mar 27, 2012 7:12 pm UTC

Dauric wrote:Which is actually a potentially relevant analogy. The health-care mandate forces individuals to take an affirmative action and enter in to a commercial transaction under the rationale that everyone will need medical care at one point or another. Everyone will need food at one point or another and obesity is an (ahem) expanding problem, so does the same rationale allow the government to mandate your food purchases meet some criteria?

With the logic at hand, the result of "you can be forced to buy health insurance because everyone uses it at some point" and "you need to eat" would be "the government can force you to buy food". Not "the government can force you to buy broccoli". Broccoli comes from the argument "mandated health insurance keeps everyone healthier" and "mandated broccoli keeps everyone healthier". The most convincing argument I've seen for the mandate is that everyone -- insured or not -- affects the costs of people who are insured; in essence, you're part of the market, whether you like it or not. So the mandate forces you to properly participate in something that you're part of no matter what.

by **Griffin** » Tue Mar 27, 2012 7:14 pm UTC

I think the key to the argument, though, is - can governments give you a tax deductible for buying enough broccoli?

The answer is clearly yes. And that's effectively what this law does.

(Effectively - I always said the exact implementation language was fucked as hell, and this is why)

But essentially this is just the addition of a tax with an obvious and common exemption condition.

Of course that's the beauty of the Republican healthcare plan, its built to fuck itself over, and I'm still pissed as fuck Obama went with it instead of something both reasonable and clearly legal.

by **Garm** » Tue Mar 27, 2012 7:16 pm UTC

Obviously, IANAL but from what I've read, there's precedent for this sort of mandate based on existing law. This is, however, a very politicized case. Recently court has broken with precedent twice in a major way in Bush v. Gore and Citizen's United, both times for political reasons. In both cases, the court has acknowledged this break with precedent by noting neither ruling should be used as precedent in the future. So a break with precedent, so soon after the CU decision (since he wasn't involved in Bush v. Gore), by the Roberts' court cements his position in the history books, imo, as a political tool rather than a wise judge (wouldn't be the first or the last).

The problem for Roberts is that to make the political choice rather than the "legal" choice brings the possibility of pissing off a lot of people and giving Obama another institution to run against (since he's already campaigning against congress). That means, again imo, that he has to find a legal argument to justify the political choice. By most accounts the argument against the individual mandate is pretty thin so that legal argument is going to have to be pretty far off in the weeds which is probably why they've been arguing the semantics between penalty and tax (should have just called it a tax in the first place... if it gets struck down on those grounds this will be another win for the GOP's ability to frame the argument on a national stage and have almost nothing to do with the legal merits of health care law).

edited for clarity

by **Dark567** » Tue Mar 27, 2012 7:30 pm UTC

Garm wrote: (should have just called it a tax in the first place... if it gets struck down on those grounds this will be another win for the GOP's ability to frame the argument on a national stage and have almost nothing to do with the legal merits of health care law).

That's hardly the GOPs framing, that's Obama's.
http://www.youtube.com/watch?v=5_-qh9XDbgE

by **Garm** » Tue Mar 27, 2012 7:34 pm UTC

Right, but the reason they had to call it not a tax is because of the success of Grover Norquist and his no-tax-ever minions in Congress.

by **Ghostbear** » Tue Mar 27, 2012 7:42 pm UTC

Garm wrote:[...] they've been arguing the semantics between penalty and tax [...]

I haven't read much about today's arguments, but as far as I know, that was only gone over yesterday, and that was because yesterday was when they determined if they had the legal authority to make a decision on the law, due to the Anti-Injunction Act of 1867, which states that you can't bring a tax to court until you've been forced to pay it. So if it is a tax, the courts can't rule on it's constitutionality until 2015.

by **sardia** » Tue Mar 27, 2012 8:03 pm UTC

Garm wrote:Right, but the reason they had to call it not a tax is because of the success of Grover Norquist and his no-tax-ever minions in Congress.

Regardless, Democratic cowardliness is why we are even facing this challenge. The GOP has a hand in it as well, but the main problem was how they framed and constructed the mandate. Mandating something is harder to defend for some reason than a tax + deduction for the same behavior. Sadly, I would prefer if they change the mandate so that it follows a precedent of some sort. Or at least a clearer precedent than the one being challenged right now. Another way around the mandate would be to provide universal healthcare or healthcare to % of the country provided by the government.

Speaking of a universal mandate, would it be legal if the government declared that they would pay private insurers to cover everyone? This differs from the above option since it uses the current infrastructure instead of expanding governmental power.

by **Silknor** » Tue Mar 27, 2012 8:09 pm UTC

@Garm:

Recently court has broken with precedent twice in a major way in Bush v. Gore and Citizen's United, both times for political reasons. In both cases, the court has acknowledged this break with precedent by noting neither ruling should be used as precedent in the future.

I know about Bush v. Gore but I've never heard this claimed for Citizens United, which I believe was cited in the Speech Now. Citation?

@Griffin:

I think the key to the argument, though, is - can governments give you a tax deductible for buying enough broccoli?

I'm pretty sure they can as well, but that doesn't have anything to do with the individual mandate. The petitioners aren't (AFAIK) challenging the ability of the government to give a large tax credit to anyone who buys health insurance (eg. Paul Ryan's plan for Medicare), even though on an economic level, that's the same as the mandate for non-exempt individuals. What they are claiming is that it's not a tax (as it says it's a penalty in the text), or if it is a tax, then there is a separation between the tax (constitutional) and the mandate itself (unconstitutional). The basis for this separation is that the law has:
1. A requirement to maintain coverage (with some exemptions, eg. religious conscience) and
2. A penalty for failure to maintain coverage (with separate exemptions, eg. those with too low an income and members of an Indian tribe)

They go on to argue that the mandate, is not a valid exercise of federal authority under the Clause. It's this argument about how far the Commerce Clause stretches that brings in the question about broccoli (also burial insurance in the oral arguments today). I don't think upholding the individual mandate under the Commerce Clause requires the court to uphold a broccoli mandate (either to eat or to buy), but that question is distinct from if the taxing power allows a tax on those who don't buy health insurance, could it also support a tax on those who don't buy broccoli.

@sardia:

Speaking of a universal mandate, would it be legal if the government declared that they would pay private insurers to cover everyone? This differs from the above option since it uses the current infrastructure instead of expanding governmental power.

Assuming no individual is obligated to maintain coverage, then I don't see on what grounds that would be held unconstitutional. That's basically the same as Ryan's plan for Medicare or how the exchanges work.

For those who are looking for more detail on any part of the case, SCOTUSblog has all the materials and some excellent overviews of all 4 questions the Court will be considering.
Here is a transcript of today's oral arguments.

by **lutzj** » Tue Mar 27, 2012 8:11 pm UTC

sardia wrote:Speaking of a universal mandate, would it be legal if the government declared that they would pay private insurers to cover everyone? This differs from the above option since it uses the current infrastructure instead of expanding governmental power.

Probably, but it'd be harder to defend politically against claims like "MASSIVE SUBSIDIES FOR INSURANCE COMPANIES" or "SOCIALIST FREE MEDICINE FOR ALL."

There are problems with trying to become so involved in the private sector no matter how you do it.

by **Heisenberg** » Tue Mar 27, 2012 8:21 pm UTC

While it seems like splitting hairs, it is really important whether this is a mandate or a tax. If it is a tax, then Congress has the authority to enact it under the "we can enact taxes" provision, but unfortunately a flat fee on every American citizen is a "head tax" which is so egregiously regressive and nasty that it was forbidden by the writers of the Constitution.

If instead it's a mandate, which seems like the way to read it given the Norquist Death Grip on Congress, then we have no real precedent and the case is deserving of scrutiny.

While the lawyers were arguing that this wasn't a tax on Monday, in order to get the Court to hear the case, one of the Justices commented "But you'll be arguing that it is a tax tomorrow" and they all had a laugh.

by **Griffin** » Tue Mar 27, 2012 8:22 pm UTC

...why. Why would you ever pay private insurers to cover people. Rather have the government provide insurance for everyone - at least then they can lower the rates or turn a profit without essentially giving companies free business for no work. Not that insurance folks really 'work', but you know what I mean.

If the governments going to be paying for anything though it should just pay for health care instead of health insurance, else your just introducing inefficiencies and middlemen.

by **Dark567** » Tue Mar 27, 2012 8:25 pm UTC

Griffin wrote: introducing inefficiencies and middlemen.

The government has both of those thing too. The reason why we have private businesses at all is that they tend to be more efficient than providing service than the government, even when taken in to account the fact that they need to earn a profit.

by **Griffin** » Tue Mar 27, 2012 8:33 pm UTC

Of course. But advocating the government paying people to pay the doctors doesn't make a whole lot of sense - when you've got a field that's already this inefficient at moving money around you don't change it to a single buy (unconnected to the customers) and then introduce another entire level of middlemen.

Though technically, since insurance gets less risky (and more efficient) the more risk is centralized, and the market forces that keep most other things in check tend to be remarkably skewed here, a completely government controlled insurance industry is unlikely to be any less efficient than the "free market" one we have now.

by **Silknor** » Tue Mar 27, 2012 8:42 pm UTC

Heisenberg wrote:While it seems like splitting hairs, it is really important whether this is a mandate or a tax. If it is a tax, then Congress has the authority to enact it under the "we can enact taxes" provision, but unfortunately a flat fee on every American citizen is a "head tax" which is so egregiously regressive and nasty that it was forbidden by the writers of the Constitution.

Agree that it does make a large legal difference which it is, though there is no economic difference, which makes the choice to list it as a penalty and mandate in the text instead of a tax seem somewhat short-sighted.

As for the head tax: I don't believe this is true post-16th amendment, there is no stated restriction on the power of the government to collect income taxes. And regardless, it's undisputed that Congress can offer a tax credit of whatever size to everyone, or one of size based on some other factor such as your income, number of children, or how much you spend on health insurance, so they could accomplish the exact same thing simply by having a higher overall level of taxes and offering credits to those who purchase insurance.

by **Garm** » Tue Mar 27, 2012 8:49 pm UTC

Dark567 wrote:
Griffin wrote: introducing inefficiencies and middlemen.
The government has both of those thing too. The reason why we have private businesses at all is that they tend to be more efficient than providing service than the government, even when taken in to account the fact that they need to earn a profit.

Except the government is more efficient at providing health care.

by **buddy431** » Tue Mar 27, 2012 8:54 pm UTC

I thought I'd post the previous discussion on this topic from a couple months ago:

http://forums.xkcd.com/viewtopic.php?f=9&t=76437

by **Dark567** » Tue Mar 27, 2012 8:55 pm UTC

Garm wrote:Except the government is more efficient at providing health care.

I'm not sure I would say that about the US government. The VA isn't exactly efficient.

by **JudeMorrigan** » Tue Mar 27, 2012 9:30 pm UTC

Dark567 wrote:
Garm wrote:Except the government is more efficient at providing health care.
I'm not sure I would say that about the US government. The VA isn't exactly efficient.

Compared with U.S. private sector health care providers? Actually, it does pretty well these days. See:

http://www.time.com/time/magazine/artic ... 38,00.html

for example. (It is, admittedly, a bit of an old article. It was just the first one I googled. I'm pretty sure I've seen more recent info that jibes with that, but if my info actually is outdated and you can find one more recent that suggests the trend has reversed, I'll certainly welcome the correction.)

by **omgryebread** » Tue Mar 27, 2012 9:36 pm UTC

Interesting quote from Kennedy towards the end of this morning:

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.

The government certainly has the ability to regulate a market and an individual's behavior in that market. The sticking point is what constitutes participation in the market. The government argues that everyone will need healthcare, so everyone is participating in the market. Scalia argued that everyone will need to eat, so can the government mandate you buy food? The counter-argument is that the uniqueness of the health care market (non-insured raising costs for others) gives the government a compelling reason to regulate, whereas non-broccoli eaters do not provide the same reason. Kennedy's quote above seems to indicate he's at least considering that the health care market is unique.

From a personal standpoint, I intensely hope this passes. After I graduate, I'll be making more than what would qualify for SSI benefits, yet employer insurance could still deny me. I'm currently on my father's plan, and the 2008 mental health parity laws mean I get covered there. In 5 years though, I'll be 27, and without the reform law, my options are to pay for health care out of pocket (~$180 a week for treatment alone. That doesn't include regular checkups, vision, dental, if something bad happens to me, or god forbid an expensive-as-fuck inpatient treatment session.) Even if I manage to get through law school before I'm off coverage, that's not a very viable option. My other option is to ditch law school or grad school and intentionally get a worse job so Maryland pays for my treatment. I guess a third option is to just stop treatment and hope I kill myself (like I tried to do twice) before I attack someone else (also like I tried to do once.)

by **++$_** » Tue Mar 27, 2012 10:16 pm UTC

Can the government order you to buy broccoli?

Why not? They're already ordering me to pay for fighter jets, and I don't even get to fly the damn things. At least the broccoli would be mine to do with as I please.

From a legal perspective there might be a difference between a tax and a mandate. From a moral perspective there is absolutely no difference. The justification of either lies solely in the value to society of the goods or services purchased.

by **Garm** » Tue Mar 27, 2012 10:29 pm UTC

The broccoli argument is really stupid. Sure everyone needs to eat but not everyone needs to eat broccoli so it doesn't really address the central point of this whole individual mandate crap. Everyone participates in the health care market on one level or another. It starts as soon as you're born (anyone else had to pay for birth? It's expensive! And I have great health insurance that I pay a lot of money for. Having my son was still expensive and there were few complications), ends when you die and is more expensive at the extremes of age (kids get sick a LOT, holy crap!).

by **++$_** » Tue Mar 27, 2012 10:40 pm UTC

Also, the government isn't really ordering you to buy your own health care. They're ordering you to pay your share of everyone's health care. Which is kind of like... a tax.

The problem is that in addition to paying for your share of the nation's health care, you are also paying for your share of the nation's health care industry's profits, which sucks. Which is why we should have implemented a single-payer system.

by **lutzj** » Tue Mar 27, 2012 10:42 pm UTC

Garm wrote:The broccoli argument is really stupid. Sure everyone needs to eat but not everyone needs to eat broccoli so it doesn't really address the central point of this whole individual mandate crap. Everyone participates in the health care market on one level or another. It starts as soon as you're born (anyone else had to pay for birth? It's expensive! And I have great health insurance that I pay a lot of money for. Having my son was still expensive and there were few complications), ends when you die and is more expensive at the extremes of age (kids get sick a LOT, holy crap!).

Everyone, it can be argued, needs healthcare, but not everyone needs access to, say, birth control (to tie this in with another thread). The individual mandate would in effect require me to indirectly pay for a bunch of other crap I don't care about in order to subsidize the care of people I don't care about. People also don't need health insurance specifically, just as they don't necessarily need to eat meat in order obtain the protein required to live.

My forced participation in health insurance would have the effect of artificially lowering average premiums because I, currently, require less healthcare than the average person. That does not mean I am raising others' costs by refusing to buy insurance. With the exception of freeloaders who show up in emergency rooms for treatment and then leave, and some other anomalies not inherent to being uninsured, the uninsured cannot really be said to impact others' costs.

by **++$_** » Tue Mar 27, 2012 10:49 pm UTC

lutzj wrote:That does not mean I am raising others' costs by refusing to buy insurance. With the exception of freeloaders who show up in emergency rooms for treatment and then leave, and some other anomalies not inherent to being uninsured, the uninsured cannot really be said to impact others' costs.

So, if you decline to buy insurance and then get sick and can't afford to pay for the treatment, what will you, personally, do?

by **CorruptUser** » Wed Mar 28, 2012 12:52 am UTC

The reason that young/healthy people aren't buying insurance is because they are being charged the same rate as old/sick people. Let the companies discriminate, and they will quickly adapt their prices to get more people insured. That's kind of my profession's job (Actuary, soon) to do that. The problem most people have with that is that the people that expect to need the most care will have to pay the most cash.

To me, healthcare is like an all-you-can-eat buffet. Under the current system, the anorexic twig that expects a salad would have to pay the same as the fat bastard going for the lobster. That's not fair to the twig, so he eats elsewhere. So the buffet has to raise its prices. But now the normal people are paying far too much, so they go elsewhere as well. In the end, the buffet is filled only with fatties who, because they already paid an exorbitant amount, decide to eat as much as they can. Ideally, the buffet would charge people based on their weight or BMI or some other statistic, and the twigs could once again attend the buffet. It's not perfect; sometimes a twig will eat 40 sausages while the fatty just has a bowl of soup. No matter which system is in place, in the end the fat bastards WILL pay more for their food, the only difference being that under the current system only the fatties will attend the buffet.

The Affordable Health Care Act tries to keep the fatties paying the same as the twigs by forcing the twigs to attend the buffet. Which isn't really fair in my view. Of course, the government will try to get the fatties to eat less to make the system more palatable to the twigs, through things like bans on trans-fats and high-fructose corn syrup or limits on salt etc.

by **Jahoclave** » Wed Mar 28, 2012 1:08 am UTC

Also, minor rhetorical point. Healthcare and health insurance are not the same thing. The two are not equivalent.

by **lutzj** » Wed Mar 28, 2012 1:20 am UTC

++$_ wrote:
lutzj wrote:That does not mean I am raising others' costs by refusing to buy insurance. With the exception of freeloaders who show up in emergency rooms for treatment and then leave, and some other anomalies not inherent to being uninsured, the uninsured cannot really be said to impact others' costs.
So, if you decline to buy insurance and then get sick and can't afford to pay for the treatment, what will you, personally, do?

I'd either raise the money to pay for it by borrowing/dipping into savings or, for some theoretical ailment that costs an inordinately large amount, go without treatment, which is exactly what I'd do with insurance except that the threshold for "cannot afford" would be higher.

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