# 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:** 3
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 28, 2012, 1:43pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/41 "2012-03-28T13:43:01Z")
> [@Frylock](#): > > Fair enough–I actually didn’t know that. I’ve seen car insurance brought up so many times in this context and no one’s ever mentioned that important detail before! I think you meant to say that you didn’t notice anyone bringing up that detail before. I would be surprised if you could find a thread on this MB where the auto insurance analogy was brought up and the state vs federal issue was not explained by someone. Not trying to be snarky, but just keeping the record straight. No one has mentioned Roberts. If I were to base my conclusion on what he said during yesterday’s arguments, I would say he’s a vote to uphold. He seemed on at least 2 occasions to say he understood (and agreed with) the SG. Not that I think one can predict a vote by the questions/comments made during oral arguments, but if you had to, he sure seemed to be leaning towards upholding. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 28, 2012, 1:56pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/42 "2012-03-28T13:56:07Z")
> [@erislover](#): > > Um, the point would be that the law would say only insurance could pay for healthcare. No, it doesn’t. It requires that I purchase insurance when I haven’t entered the healthcare market. That is a huge distinction. I might drop dead from a heart attack 10 minutes from now and never use a dime of health care services. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 28, 2012, 2:00pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/43 "2012-03-28T14:00:07Z")
> [@jtgain](#): > > I might drop dead from a heart attack 10 minutes from now and never use a dime of health care services. Interesting argument. Hope there isn’t a paramedic around to save you, that’d be mighty embarassing. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [March 28, 2012, 2:30pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/44 "2012-03-28T14:30:43Z")
I have a question for those who’ve noted the fact that questions asked in oral arguments are not good predictors of final outcomes. Is this also true where there are no good answers? My understanding is that sometimes justices ask these questions in order to probe the issue, and find good answers to the questions. But if the questions are asked, and no one puts up a good answer, I would think this might be a better predictor. I’m aware of course that these SC justices can think for themselves, and don’t need the lawyer arguing the case to think for them. But still, I’m wondering if a situation such as this one might be a better predictor. > [@RitterSport](#): > > I know this isn’t a constitutional argument, but regarding the ability for states to compel purchases and the related concern that if the government can compel the purchase of insurance, then it could compel the purchase of anything, I find that concept ludicrous. > > My reasoning is as follows: > > States can compel purchases. The Feds may or may not be able to do so. > If governments can compel purchases, than there is no limit to what they could force you to buy. > However, historically, this has NOT been a problem at the state level. Michigan has never compelled anyone to purchase a Ford or Chevy. California, that home of the nanny state and many farming interests, has not compelled anyone to purchase broccoli. And, Illinois, that national embarrassment where half the governors end up in jail, has not compelled the purchase of whatever the highest corrupting bidder has asked for. > > So, IMO, there may or may not be a question about whether the Feds can compel a purchase, but practically speaking, the slippery slope argument is ridiculous. This is a very valid point but addressing the wrong argument. You are refuting the slippery slope argument. What you’re not addressing the evisceration of the Commerce Clause argument. IOW, the main thrust of the arguments about people being compelled to buy broccoli is not that as a practical matter if we allow this law to stand next thing you know people will be forced to buy broccoli. The argument is that if we accept that the Commerce Clause allows for this law then we have to accept that the Commerce Clause also allows for forcing people to buy broccoli. As we include more and more far out scenarios that are in principle the same as this law, then it becomes harder and harder to align this principle with the plain reading and intent of the Commerce Clause. Essentially the CC is being converted into a catchall power grab that allows for almost anything, and these far out examples are just illustrations of this. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 28, 2012, 2:40pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/45 "2012-03-28T14:40:49Z")
> [@Fotheringay-Phipps](#): > > I have a question for those who’ve noted the fact that questions asked in oral arguments are not good predictors of final outcomes. Is this also true where there are no good answers? My understanding is that sometimes justices ask these questions in order to probe the issue, and find good answers to the questions. But if the questions are asked, and no one puts up a good answer, I would think this might be a better predictor. It can help, if you think the justices cannot come up with reasons themselves. They take everything argued into consideration, but at the end of the day if Kennedy thinks up a justification that satisfies himself, it doesn’t matter what was said in the oral arguments. According to scotusblog, there’s some hints that this happened to Kennedy during a later line of questioning. > [@](#): > > IOW, the main thrust of the arguments about people being compelled to buy broccoli is not that as a practical matter if we allow this law to stand next thing you know people will be forced to buy broccoli. The argument is that if we accept that the Commerce Clause allows for this law then we have to accept that the Commerce Clause also allows for forcing people to buy broccoli. We don’t. But we may have to accept that forcing people to buy food in a different manner than simple cash exchanges at the grocery could happen. If 40 million Americans went without food, I’d expect that the government would try to step up. Of course, since food is regulated to hell in back in terms of incentives, tax breaks, import tariffs, and so on for ever and ever, this has already happened. > [@](#): > > As we include more and more far out scenarios that are in principle the same as this law, then it becomes harder and harder to align this principle with the plain reading and intent of the Commerce Clause. Essentially the CC is being converted into a catchall power grab that allows for almost anything, and these far out examples are just illustrations of this. They can’t force you to buy brocolli, but they could ban every single vegetable but broccoli. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [March 28, 2012, 2:46pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/46 "2012-03-28T14:46:26Z")
> [@Fotheringay-Phipps](#): > > if we accept that the Commerce Clause allows for this law then we have to accept that the Commerce Clause also allows for forcing people to buy broccoli. As we include more and more far out scenarios that are in principle the same as this law, then it becomes harder and harder to align this principle with the plain reading and intent of the Commerce Clause. Essentially the CC is being converted into a catchall power grab that allows for almost anything, and these far out examples are just illustrations of this. I suppose it likewise raises another question: if the CC really does include all those far-out scenarios, then what’s the point of that other stuff in Art I Sec 8? Why bother with a separate power _“securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”_ if the Commerce Clause already covers that? Why spell out yet another power for _“the punishment of counterfeiting”_ and yet another to _“establish post offices”_ if we covered all of this long before we got to – well, the unrelated (and equally redundant, in light of the CC) part about fixing the standard of weights and measures? ---
**Author:** ![jackdavinci](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackdavinci/32/3259_2.png) [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)\ **Post date:** [March 28, 2012, 2:50pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/47 "2012-03-28T14:50:49Z")
> [@Leaper](#): > > So since we’re back to arguing over the individual mandate, is the question of the OP (which is, as far as I can tell, “do these oral arguments/questions indicate, on their own, that the questioners are likely to have already made up their mind to strike down the individual mandate?”) pretty much settled as “no”? It looks like it, but lower court rulings also had similar questioning in conservative benches and they still ruled in favor, so who knows? I think the fact that they asked for a third day of question just in the issue of severability means they are probably naturally inclined to just severe the mandate part, if it’s at all possible. Since there are three possible outcomes, potentially there could be a tie. What happens then? Maybe the SC should have a prime number of judges. 🙂 It’s not likely but I hope they find a way to basically say the legislation is fine, but you have to change the mandate to a tax. ---
**Author:** ![jackdavinci](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackdavinci/32/3259_2.png) [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)\ **Post date:** [March 28, 2012, 3:00pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/48 "2012-03-28T15:00:38Z")
> [@furt](#): > > . I was stunned that he made no effort to even try and articulate a limiting principle, and that Ginsburg and Kagan had to do it for him. To be fair, I thought he made some good arguments about certain things I hadn’t thought of, and quite a few of the times it seemed like he was stumbling, it was because three judges kept interrupting him mid sentence. ---
**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:** [March 28, 2012, 3:08pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/49 "2012-03-28T15:08:03Z")
> [@Frylock](#): > > But, as I said, for the great majority of us, car ownership _is_ a requirement. There’d be no way for most of us to live without one. It does not matter, it is held to a different standard, and you could figure it out it would just be difficult. You are granted the privilege to drive by the state, you are not granted the privileged of life by the state. ---
**Author:** ![gamerunknown](https://avatars.discourse-cdn.com/v4/letter/g/6bbea6/32.png) [@gamerunknown](https://boards.straightdope.com/u/gamerunknown)\ **Post date:** [March 28, 2012, 3:20pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/50 "2012-03-28T15:20:15Z")
> [@](#): > > You are granted the privilege to drive by the state, you are not granted the privileged of life by the state. Well, you’re right that “life” isn’t granted by the state, but it’s not considered a privilege, it’s considered a right (granted by the “Creator”) according to the Declaration of Independence. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [March 28, 2012, 3:31pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/51 "2012-03-28T15:31:45Z")
> [@Fotheringay-Phipps](#): > > This is a very valid point but addressing the wrong argument. You are refuting the slippery slope argument. What you’re not addressing the evisceration of the Commerce Clause argument. > > IOW, the main thrust of the arguments about people being compelled to buy broccoli is not that as a practical matter if we allow this law to stand next thing you know people will be forced to buy broccoli. The argument is that if we accept that the Commerce Clause allows for this law then we have to accept that the Commerce Clause also allows for forcing people to buy broccoli. As we include more and more far out scenarios that are in principle the same as this law, then it becomes harder and harder to align this principle with the plain reading and intent of the Commerce Clause. Essentially the CC is being converted into a catchall power grab that allows for almost anything, and these far out examples are just illustrations of this. Scalia made the slippery slope argument: “Everybody has to buy food sooner or later, so you define the market as food. Therefore, everybody is in the market. Therefore, you can make people buy broccoli.” I’m saying that, since everyone agrees that states can make you buy whatever the hell they want, and since that hasn’t led to states requiring you to buy things like broccoli and cars, that the slippery slope argument has no practical merit. Anyway, regarding the commerce clause, if congress and the executive branch agree that the government has a rational basis for compelling purchase (such as the fact that people without insurance are driving up the costs and forcing others such as hospitals and people with insurance to pay for them), then they can use the commerce clause to regulate that market. Isn’t that how it works? ---
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [March 28, 2012, 3:33pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/52 "2012-03-28T15:33:08Z")
> [@erislover](#): > > They can’t force you to buy brocolli, but they could ban every single vegetable but broccoli. They can also raise your taxes and give you an offsetting tax credit if you buy brocolli. On another note, Kennedy’s remarks weren’t all in favor of overturning the law. > [@](#): > > JUSTICE KENNEDY: And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets – stipulate two markets – 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.That’s my concern in the case My (largely uninformed) guess is that the act will not be overturned, but that the decision will be worded very narrowly to say that this is a special case and should not be used as precedent to expand the power of government in other cases. Which seems to me the correct decision. I probably don’t know what I’m talking about, but if I’m right, you heard it here first! 😃 ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [March 28, 2012, 3:41pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/53 "2012-03-28T15:41:27Z")
> [@RitterSport](#): > > Scalia made the slippery slope argument: “Everybody has to buy food sooner or later, so you define the market as food. Therefore, everybody is in the market. Therefore, you can make people buy broccoli.” I’m saying that, since everyone agrees that states can make you buy whatever the hell they want, and since that hasn’t led to states requiring you to buy things like broccoli and cars, that the slippery slope argument has no practical merit. Since _Wickard_, when has expanding the ICC not been on a slippery slope? ---
**Author:** ![jackdavinci](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackdavinci/32/3259_2.png) [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)\ **Post date:** [March 28, 2012, 3:42pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/54 "2012-03-28T15:42:10Z")
The thing I find really amusing about this whole thing is I like the bill except for the mandate, but I think the mandate is one of the stupidest things ever conceived, and I’m pretty hardcore liberal. And I see other liberals struggling to defend it, I guess because they want to be team players, or because they want to save the other parts of the bill. It puts me in the awkward position of knowing what it feels like to look down on liberals lol. The thing is, the mandate isn’t even really a liberal policy in principle, or a great Obama idea. It was a haphazard compromise between parties that doesn’t really benefit either side. I wish we’d stop defending it, or even owning it. I understand the desire to hold on to it, because other parts of the bill are fantastic and it would be crappy to lose them in the process, but the mandate is really stupid and unjustifiable part and has to go. Defending it on party lines is just embarrassing. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [March 28, 2012, 3:51pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/55 "2012-03-28T15:51:18Z")
THe Act dear boy not bill, the Act. It’s been passed and signed into law. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [March 28, 2012, 3:58pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/56 "2012-03-28T15:58:12Z")
I just saw an interesting question elsewhere. If the federal government cannot force someone to buy something against their will, can it force someone to sell something against their will? Say, I run a business, and someone walks in who I don’t want to sell product to. Can the government force me to accept them as a customer? Obviously that’s the current law of the land, and has been since 1964. If the government can do that, what’s the difference? I anticipate a possibly valid objection: the gov’ts authority in the Civil Rights Act of 1964 derives from the 14th amendment, not from the commerce clause. If so, the cases are relevantly dissimilar, and my question is answered. But if the Civil Rights Act derives any of its authority from the commerce clause, the two examples do seem similar. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [March 28, 2012, 3:59pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/57 "2012-03-28T15:59:30Z")
> [@jackdavinci](#): > > The thing I find really amusing about this whole thing is I like the bill except for the mandate, but I think the mandate is one of the stupidest things ever conceived, and I’m pretty hardcore liberal. And I see other liberals struggling to defend it, I guess because they want to be team players, or because they want to save the other parts of the bill. It puts me in the awkward position of knowing what it feels like to look down on liberals lol. > > The thing is, the mandate isn’t even really a liberal policy in principle, or a great Obama idea. It was a haphazard compromise between parties that doesn’t really benefit either side. I wish we’d stop defending it, or even owning it. I understand the desire to hold on to it, because other parts of the bill are fantastic and it would be crappy to lose them in the process, but the mandate is really stupid and unjustifiable part and has to go. Defending it on party lines is just embarrassing. I’m a liberal and I support the mandate. If you want to get rid of pre-existing conditions you need a mandate to pay for it. Without a large amount of young healthy people in the pool, insurance can’t work. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 28, 2012, 4:17pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/58 "2012-03-28T16:17:38Z")
> [@jackdavinci](#): > > The thing is, the mandate isn’t even really a liberal policy in principle, or a great Obama idea. It was a haphazard compromise between parties that doesn’t really benefit either side. I don’t know how you feel about it, but this is all of government to me. I can think of very little that I don’t consider implemented in a sloppy fashion due to political compromise with elements I consider obviously wrong-headed (though not necessarily stupid). I didn’t vote for Obama or any congresscritters so we could ram liberalism down the throats of our opponents. I voted the way I did under the idea that they could be reasonable politicians and form imperfect plans under imperfect support from imperfect aims in uncertain situations. It’s the right who wants mandates to shove down people’s throats, who want leaders not representatives. I just want politicians. I think I got them. ---
**Author:** ![nate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nate/32/13085_2.png) [@nate](https://boards.straightdope.com/u/nate)\ **Post date:** [March 28, 2012, 4:19pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/59 "2012-03-28T16:19:18Z")
Could this case have been avoided if the plan were to call the no-insurance penalty a “tax” instead of a “fee”? ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [March 28, 2012, 4:46pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/60 "2012-03-28T16:46:37Z")
> [@nate](#): > > Could this case have been avoided if the plan were to call the no-insurance penalty a “tax” instead of a “fee”? The questioning on Monday seems to suggest that, no, you cannot just call it a tax. The word tax has a specific meaning (i.e. there is a direct benefit from the tax). Here, there is no benefit from the “tax” or penalty. Those who choose not to have insurance must pay a fine and receive nothing in return for it. Also, there is something about direct taxes being apportioned among the states based on population…or something like that. I’m sure that someone with a legal background can explain this much better than I can [Previous page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=2) [Next page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=4)