Comments on: The Supreme Court on Health Reform: Day Two http://blogs.law.stanford.edu/lawandbiosciences/2012/03/28/the-supreme-court-on-health-reform-day-two/ Wed, 15 May 2013 21:56:51 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Jack Bosch http://blogs.law.stanford.edu/lawandbiosciences/2012/03/28/the-supreme-court-on-health-reform-day-two/comment-page-1/#comment-19989 Jack Bosch Mon, 02 Apr 2012 03:24:35 +0000 http://blogs.law.stanford.edu/lawandbiosciences/?p=2299#comment-19989 Very well presented argument to be sure, however it does nothing to excuse the performance or should I say lack of performance by Solicitor General Verrilli. It was painful and I was embarrassed for him, watching this spectacular failure go from bad to worse. That gives heed to speculation that it is actually expected for this bill to go down in flames to help the administration get out from under a very unpopular seizure of such a large part the private capitalist sector. After all there is not one country that has traveled down this road that has itself become a dismal failure as well. It is however a very important step towards socialism if that is the intended outcome. No amount of word play or clever manipulation can change to the cold hard facts of history. Kudo's to you Christian, fallacy indeed! Very well presented argument to be sure, however it does nothing to excuse the performance or should I say lack of performance by Solicitor General Verrilli. It was painful and I was embarrassed for him, watching this spectacular failure go from bad to worse. That gives heed to speculation that it is actually expected for this bill to go down in flames to help the administration get out from under a very unpopular seizure of such a large part the private capitalist sector. After all there is not one country that has traveled down this road that has itself become a dismal failure as well. It is however a very important step towards socialism if that is the intended outcome. No amount of word play or clever manipulation can change to the cold hard facts of history. Kudo’s to you Christian, fallacy indeed!

]]> By: Christian http://blogs.law.stanford.edu/lawandbiosciences/2012/03/28/the-supreme-court-on-health-reform-day-two/comment-page-1/#comment-19830 Christian Wed, 28 Mar 2012 23:36:47 +0000 http://blogs.law.stanford.edu/lawandbiosciences/?p=2299#comment-19830 Agree that Clement in particular did a great job of advocacy. A couple of observations. One, I don't think the "lesser included" argument is all that compelling - because Congress could impose a single-payor system, then Congress must have the power to force consumers to buy insurance. Even if you think we were justified in dropping an atomic bomb on Hiroshima, that would not have given us the right to round up individual Japanese citizens and torture them. Second, the argument that the Obamacare individual mandate is within the commerce power because individual decisions not to buy health insurance affect all other consumers of health insurance is certainly problematic for the reason that the States have raised (it proves too much), but it is also problematic because it assumes that our current health care finance system is an immutable fact of nature, like the weather, or the haplessness of Boston sports teams. The idea that health care costs are high because of free riders as subject to great debate, but more than that, the idea that we must forever stay locked in to a system where consumers cross-subsidize others' health care is a fallacy. Indeed, it is prior government intervention in the healthcare market that is largely responsible for the payment system we have today. I understand the judicial deference given to Congressional fact finding under normal circumstances (although we all know that such facts are often a joke), but should that deference apply where Congress is using findings to bootstrap Constitutional power to act? Third, although I understand why the states have avoided attacking the Court's precedents, has it occurred to anyone that the reason that the legal issues are so "difficult" here is because the Court has gone too far in the past in its commerce clause jurisprudence? It's time to zoom out, look at the big picture, and recognize that this kind of statute - coercing individual action, the essence of the general residual police power that Congress is not supposed to have - should not even be a close call, and perhaps the fact that it is suggests overturning some of the more aggressive commerce clause decisions. (Kelo being another example of such creeping precedent malignancy). Agree that Clement in particular did a great job of advocacy.

A couple of observations. One, I don’t think the “lesser included” argument is all that compelling – because Congress could impose a single-payor system, then Congress must have the power to force consumers to buy insurance. Even if you think we were justified in dropping an atomic bomb on Hiroshima, that would not have given us the right to round up individual Japanese citizens and torture them.

Second, the argument that the Obamacare individual mandate is within the commerce power because individual decisions not to buy health insurance affect all other consumers of health insurance is certainly problematic for the reason that the States have raised (it proves too much), but it is also problematic because it assumes that our current health care finance system is an immutable fact of nature, like the weather, or the haplessness of Boston sports teams.

The idea that health care costs are high because of free riders as subject to great debate, but more than that, the idea that we must forever stay locked in to a system where consumers cross-subsidize others’ health care is a fallacy. Indeed, it is prior government intervention in the healthcare market that is largely responsible for the payment system we have today.

I understand the judicial deference given to Congressional fact finding under normal circumstances (although we all know that such facts are often a joke), but should that deference apply where Congress is using findings to bootstrap Constitutional power to act?

Third, although I understand why the states have avoided attacking the Court’s precedents, has it occurred to anyone that the reason that the legal issues are so “difficult” here is because the Court has gone too far in the past in its commerce clause jurisprudence? It’s time to zoom out, look at the big picture, and recognize that this kind of statute – coercing individual action, the essence of the general residual police power that Congress is not supposed to have – should not even be a close call, and perhaps the fact that it is suggests overturning some of the more aggressive commerce clause decisions. (Kelo being another example of such creeping precedent malignancy).

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