# Justices signal possible trouble for health insurance mandate **URL:** \ **Category:** Great Debates\ **Created:** [March 27, 2012, 5:11pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961 "2012-03-27T17:11:45Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 1, 2012, 6:20pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/202 "2012-04-01T18:20:22Z")
> [@Really\_Not\_All\_That\_Bright](#): > > They don’t have to analyze it under the ICC, though. Regardless of how it was framed, the penalty underlying the individual mandate is either a tax or it isn’t. If it’s a tax, it falls under the taxing and spending power regardless of what constitutional provision Congress overtly relied on in enacting it. > > From [the Petitioners’ (Government’s) SCOTUS brief on the individual mandate (the “minimum coverage” provision)](http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-398_petitioner.authcheckdam.pdf): The problem with that argument is that the Obama administration went out of its way during the debate on the bill to vehemently deny that it was a tax. It argued on Monday that it wasn’t a tax for the Anti-Injunction Act purposes. When you get a bill passed by arguing it is not a tax, I contend that you should be estopped from arguing that in court. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 1, 2012, 7:14pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/203 "2012-04-01T19:14:36Z")
Maybe, but the administration’s position is irrelevant. All that matters- for the purposes of the taxing power- is _Congress_’ intent, since this is a legislative enactment rather than an administrative rule and the tax and spend power is devolved only on Congress… The legislative history is pretty much void of congresscritters arguing that is wasn’t a tax, as far as I can tell. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 1, 2012, 7:36pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/204 "2012-04-01T19:36:43Z")
On a somewhat different note, although the media narrative has been that the third day of oral argument was disastrous for the government, something has been bugging me: broccoli. I mean, everyone agrees that Verilli did a shitty job, but could he really have foreseen all those questions about brocolli? When the “hostile” portion of the court is posing such absurd hypotheticals, it doesn’t sound like they’re seriously considering overturning the law. They’re just fishing. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 1, 2012, 7:40pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/205 "2012-04-01T19:40:45Z")
> [@Really\_Not\_All\_That\_Bright](#): > > On a somewhat different note, although the media narrative has been that the third day of oral argument was disastrous for the government, something has been bugging me: broccoli. I mean, everyone agrees that Verilli did a shitty job, but could he really have foreseen all those questions about brocolli? > > When the “hostile” portion of the court is posing such absurd hypotheticals, it doesn’t sound like they’re seriously considering overturning the law. They’re just fishing. How is that not a fair question? You would agree that we are all part of the food market, right? So, in order to regulate that market, why couldn’t the feds require broccoli consumption or Slim Jim purchases? I thought it was a good question to test the limits (whatever those might be) of the ICC power. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 1, 2012, 8:01pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/206 "2012-04-01T20:01:01Z")
I don’t think it’s a bad question, per se. I think it’s deliberately couched in silly terms. The food market and the health insurance market have virtually nothing in common, so it just doesn’t work as an analogy. People obviously can opt out of the broccoli market; they cannot opt out of the health insurance market. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [April 1, 2012, 8:04pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/207 "2012-04-01T20:04:19Z")
> [@Really\_Not\_All\_That\_Bright](#): > > People obviously can opt out of the broccoli market; they cannot opt out of the health insurance market. Yet they do. That’s what the whole brouhaha is about. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 1, 2012, 8:21pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/208 "2012-04-01T20:21:07Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I don’t think it’s a bad question, per se. I think it’s deliberately couched in silly terms. The food market and the health insurance market have virtually nothing in common, so it just doesn’t work as an analogy. People obviously can opt out of the broccoli market; they cannot opt out of the health insurance market. That was Scalia’s point. If you define it as the “broccoli market” then of course a person can opt out. If you call it the “food” market that everyone participates in, then according the government, the feds could regulate it. Same way with the “health care” market. When you define it that broadly, we can’t opt out. If you said “heart transplant” market, then we could. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 1, 2012, 8:37pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/209 "2012-04-01T20:37:40Z")
Okay - but in order to allow a person to opt out of the heart transplant market the government would have to impose an even more onerous set of regulations. ---
**Author:** ![The\_Tao\_s\_Revenge](https://avatars.discourse-cdn.com/v4/letter/t/73ab20/32.png) [@The\_Tao\_s\_Revenge](https://boards.straightdope.com/u/The_Tao_s_Revenge)\ **Post date:** [April 2, 2012, 12:20am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/210 "2012-04-02T00:20:10Z")
The really telling thing I think is how much Scalia lacks honor. Jackass complains reading the bill is torture, then goes on to postulate the poor should be left to suffer real agony and painful death from lack of healthcare. When I was poor I had to suffer months with a dysfunctional gallbladder. Didn’t have any money for surgery so I’d go to work and class tired the next day because I was up all night writhing in pain. I got more than a few huge ER bills where I was told it was [ulcers and I was very confused and just wanted the pain to stop](http://boards.straightdope.com/sdmb/showthread.php?t=589489). This went on for months. Finally one night when my gallbladder swelled up like the Grinch’s heart on Christmas it prompted the hospital to do an ultrasound and find the real cause. Too bad the real cause required an operation way out of my price range. So I went by work to tell them I was too sick to work, and went to my mom’s and writhed on her couch, occasionally getting up to suffer agonizing pain as I vomited bile and then got dry heaves. Eventually it cleared up, but I suffered so much pain. No person should ever be left to suffer like that. I have health insurance now, but god damn. I wouldn’t wish even half that on anyone. Not even Scalia. Not even Bush or Chaney. Truly a the latter two on this board I’ve made my feelings plain about. Scalia feels having to do his job and read the bill is worse than that. Scalia feels reading the bill is worse than the hundreds of thosuands of deaths lack of healthcare causes, and agonies, many much worse than what I experienced, so many suffer for treatable conditions. Scalia has no empathy for those folks. Scalia truly is an inhuman monster. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [April 2, 2012, 12:23am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/211 "2012-04-02T00:23:04Z")
> [@The\_Tao\_s\_Revenge](#): > > The really telling thing I think is how much Scalia lacks honor. > > Jackass complains reading the bill is torture, then goes on to postulate the poor should be left to suffer real agony and painful death from lack of healthcare. When I was poor I had to suffer months with a dysfunctional gallbladder. Didn’t have any money for surgery so I’d go to work and class tired the next day because I was up all night writhing in pain. I got more than a few huge ER bills where I was told it was [ulcers and I was very confused and just wanted the pain to stop](http://boards.straightdope.com/sdmb/showthread.php?t=589489). This went on for months. Finally one night when my gallbladder swelled up like the Grinch’s heart on Christmas it prompted the hospital to do an ultrasound and find the real cause. > > Too bad the real cause required an operation way out of my price range. So I went by work to tell them I was too sick to work, and went to my mom’s and writhed on her couch, occasionally getting up to suffer agonizing pain as I vomited bile and then got dry heaves. > > Scalia feels having to do his job and read the bill is worse than that. Scalia feels reading the bill is worse than the hundreds of thosuands of deaths lack of healthcare causes, and agonies, many much worse than what I experienced, so many suffer for treatable conditions. > > Scalia has no empathy for those folks. Scalia truly is an inhuman monster. Wow. That huge rant from one remark by Justice Scalia about not wanting to read the whole bill? Here’s a similar remark by Justice Breyer: > **[Front Page Featured | MRCTV](https://mrctv.org/cnsnews)** In oral arguments in the Supreme Court on Wednesday, Justice Stephen Breyer “promised” he had not read the entirety of the 2,700-page health-care legislation the court was examining. He also suggested it would be unreasonable for the lawyers arguing over the constitutionality of the law to expect the justices to “spend a year reading all this” to determine which parts of it should be allowed to stand if the court decides to strike down as unconstitutional the law’s mandate that individuals must buy health insurance. ======================== Let’s see what kind of monster you think Breyer is. ---
**Author:** ![The\_Tao\_s\_Revenge](https://avatars.discourse-cdn.com/v4/letter/t/73ab20/32.png) [@The\_Tao\_s\_Revenge](https://boards.straightdope.com/u/The_Tao_s_Revenge)\ **Post date:** [April 2, 2012, 12:33am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/212 "2012-04-02T00:33:38Z")
> [@Terr](#): > > Wow. That huge rant from one remark by Justice Scalia about not wanting to read the whole bill? > > Here’s a similar remark by Justice Breyer: > > [http://cnsnews.com/news/article/justice-breyer-obamacare-i-haven-t-read-every-word-i-promise](http://cnsnews.com/news/article/justice-breyer-obamacare-i-haven-t-read-every-word-i-promise) > > In oral arguments in the Supreme Court on Wednesday, Justice Stephen Breyer “promised” he had not read the entirety of the 2,700-page health-care legislation the court was examining. > > He also suggested it would be unreasonable for the lawyers arguing over the constitutionality of the law to expect the justices to “spend a year reading all this” to determine which parts of it should be allowed to stand if the court decides to strike down as unconstitutional the law’s mandate that individuals must buy health insurance. > > ======================== > > Let’s see what kind of monster you think Breyer is. No read the hissing viper’s own words: [http://www.npr.org/2012/03/27/149465820/transcript-supreme-court-the-health-care-law-and-the-individual-mandate](http://www.npr.org/2012/03/27/149465820/transcript-supreme-court-the-health-care-law-and-the-individual-mandate) > [@](#): > > GENERAL VERRILLI: No. It’s because you’re going — in the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow — that — to which we’ve obligated ourselves so that people get health care. > > JUSTICE SCALIA: Well, don’t obligate yourself to that. Why — you know? > > GENERAL VERRILLI: Well, I can’t imagine that that — that the Commerce Clause would —would forbid Congress from taking into account this deeply embedded social norm. > > JUSTICE SCALIA: You — you could do it Jackass wants people who don’t have insurance or the ability to pay out of pocket for emergency services to die in the street. ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [April 2, 2012, 12:58am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/213 "2012-04-02T00:58:42Z")
> [@Terr](#): > > Yet they do. That’s what the whole brouhaha is about. Eventually, everyone ends up in the market whether they like it or not. Currently, if they are “opting out”, then you and I are subsidizing their evetual trip to the emergency room. My understanding is that the mandate fixes that and makes sure that everyone does the responsible thing and stops freeloading. If you opt out of the broccoli market, it doesn’t affect me a whit. That’s not the case with health care. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [April 2, 2012, 1:01am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/214 "2012-04-02T01:01:46Z")
> [@Fiveyearlurker](#): > > Eventually, everyone ends up in the market whether they like it or not. Currently, if they are “opting out”, then you and I are subsidizing their evetual trip to the emergency room. My understanding is that the mandate fixes that and makes sure that everyone does the responsible thing and stops freeloading. > > If you opt out of the broccoli market, it doesn’t affect me a whit. That’s not the case with health care. The phrase I was responding to was “health insurance market”. ---
**Author:** ![The\_Tao\_s\_Revenge](https://avatars.discourse-cdn.com/v4/letter/t/73ab20/32.png) [@The\_Tao\_s\_Revenge](https://boards.straightdope.com/u/The_Tao_s_Revenge)\ **Post date:** [April 2, 2012, 1:19am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/215 "2012-04-02T01:19:12Z")
> [@Terr](#): > > The phrase I was responding to was “health insurance market”. Which is like saying clouds have no effect on rainfall. If health care costs are high to cover people who can’t afford emergency services, guess what else will be high. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 2, 2012, 1:32am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/216 "2012-04-02T01:32:48Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Okay - but in order to allow a person to opt out of the heart transplant market the government would have to impose an even more onerous set of regulations. They wouldn’t have to impose any regulations at all. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 2, 2012, 1:36am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/217 "2012-04-02T01:36:32Z")
> [@Fiveyearlurker](#): > > If you opt out of the broccoli market, it doesn’t affect me a whit. That’s not the case with health care. But say Congress passed a law that no supermarket could turn away a hungry person without money. Then you would be subsidizing their food purchases and Congress could make everyone buy broccoli insurance, under that theory. Can Congress really gain power by passing a law that has financial consequences, so that they must pass another law to “fix” that problem? ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [April 2, 2012, 1:39am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/218 "2012-04-02T01:39:31Z")
> [@The\_Tao\_s\_Revenge](#): > > No read the hissing viper’s own words: > > [http://www.npr.org/2012/03/27/149465820/transcript-supreme-court-the-health-care-law-and-the-individual-mandate](http://www.npr.org/2012/03/27/149465820/transcript-supreme-court-the-health-care-law-and-the-individual-mandate) > Jackass wants people who don’t have insurance or the ability to pay out of pocket for emergency services to die in the street. Let’s be fair, the Justices need to ask many questions to get where the point is being argued from, they are not having a debate. To say you can divine any real stance that a particular Justice holds just through their questions is pretty absurd. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 2, 2012, 1:43am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/219 "2012-04-02T01:43:37Z")
> [@Lobohan](#): > > You posted this: > You specifically claimed that Pelosi suggested that the congress people didn’t know what was in it. > > Elvislives posted a link to a thread on this message board that already dealt with this. > > Where it is clear that she is talking to the American people and saying that once the bill is enacted, the lies and misinformation by the right will die down. She was wrong about that, of course. > > It’s no big deal, you were wrong, probably because you believe the nonsense you find on RW news sources. The problem is, when shown you were wrong you attacked instead of being gracious about it. > > Whichever. How about: “none of the above”. I’m well aware of her full statement. And even in full it’s one of the most asinine comments to ever come from a congressperson. You don’t argue to pass a bill so that people can see what is in it, away form debate or controversy. You fucking find a way to explain it. Plus (and you ignored this, didn’t you), you read the fucking bill before you vote on it. Imagine that. But since you defend Pelosi’s asshattery, are you of the mind that all bills surrounded by controversy should be passed—so the people can see what’s in it without the fog of controversy? Yes or no? And why? Please, what’s happened here is that Skeletess dished out some sheer imbecility, but because you like the result and she is on your side, you come to her defense and tell people tp look at the three-headed calf in the next stall. I can’t tell you how shocked I am. :rolleyes: ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 2, 2012, 3:59am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/220 "2012-04-02T03:59:05Z")
> [@jtgain](#): > > They wouldn’t have to impose any regulations at all. They could just repeal existing federal law that requires hospitals to provide care regardless of the recipient’s ability to pay… but I don’t think anyone actually thinks that’s a workable alternative. Do you? ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [April 2, 2012, 5:46am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/221 "2012-04-02T05:46:19Z")
> [@The\_Tao\_s\_Revenge](#): > > The really telling thing I think is how much Scalia lacks honor. > > Jackass complains reading the bill is torture, Lemme guess – the multiple congresspeople who admitted they never read it before voting for it, they’re noble paragons of public service, right? [Previous page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=10) [Next page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=12)