The GOP's Waterloo get worse

[one...two...tree 2,762]

When Ronnie signed that piece of legislation, was it zombie ronnie, or did he have all his faculties? That could have been the work of one of Nancy's séance induced delusions.

[Dan T 8]

on a ronnie note i am shocked that ge is simultaneously runnig ads reminding us of him being their spokesperson and double dealing around sanctions with iran. seems a bit at odds to me

[Mr. Big Dog 10,747]

in addition it only responds directly to legislation that has been proposed already. I would submit that this legislation has not been fully fleshed out, and if it was the savings realized in actual cost of services provided would drop

You would submit? Based on what, exactly?

[Dan T 8]

You would submit? Based on what, exactly?

based on the careful use of language in the report you directed me to that repeatedly reassures that it is evaluating a typical selection of legislation. i would be much more interested in a private analysis of several complete legislative packages but you have repeatedly shown your contempt for private industry so....

[Dan T 8]

to me it seems like a reasonable parallel to draw between you giving credit to this bill for fixing our healthcare system and me blaming it for the reason why companies who would have otherwise been in the market for my skillset being scared away from doing so by that same piece of legislation because the added burden created by this bill would make it not cost effective for them to do so.

[one...two...tree 2,762]

This is worth reading:

The stronger argument in the arsenal of the AGs -- many of whom happen to be running for governor -- relates to the Commerce Clause, the section of the Constitution that empowers Congress to regulate interstate commerce. The AGs focus on the provision of the bill that requires almost all Americans to obtain health insurance. They argue that imposing a penalty on people merely for declining to buy insurance is outside the scope of Congress's power under the Commerce Clause. "For the federal government to be telling people that they must buy health insurance, or they must buy anything at all, is not one of the powers that is give to the federal government by the Constitution," McMaster declared on Fox yesterday. "Nowhere does it say that the federal government can require a private citizen to go out and buy health insurance or anything else. It's not a part of the Commerce Clause power."

This argument isn't, as some reform supporters may wish to see it, merely a bizarre and desperate concoction of the far-right wing -- akin, for instance, to the pseudo-legal arguments advanced by "Constitutionalists" for why Obama's presidency is illegitimate. Over the last six months, it's been embraced by several respected conservative legal scholars. And more importantly, an emerging jurisprudence from the conservative court does show a willingness to limit the scope of the Commerce Clause.

Last September, David Rivkin and Lee Casey, former Justice Department lawyers during the Reagan and Bush 41 administrations who played prominent roles in support of the Bush 43 administration's detention policies, noted in a Wall Street Journal op-ed that in a 1995 case, U.S. v. Lopez, the Supreme Court invalidated a law that made it a crime simply to possess a gun near a school, holding that the law did not "regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity." Likewise, Rivkin and Casey wrote, a health-care mandate also wouldn't regulate any "activity." "Simply being an American would trigger it." (Late Update: Rivkin and Casey are listed on the lawsuit (pdf) as "of counsel" to the plaintiffs.)

Randy Barnett, a professor of constitutional law at Georgetown Law School, agrees. "The individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented," he wrote in a Washington Post op-ed that appeared this weekend. "Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another."

A July 2009 paper (pdf) for the conservative Federalist Society by Peter Urbanowicz and Dennis G. Smith, two former HHS officials, took a similar view. "While most health care insurers and health care providers may engage in interstate commerce and may be regulated accordingly under the Commerce Clause, it is a different matter to find a basis for imposing Commerce Clause related regulation on an individual who chooses not to undertake a commercial transaction," they wrote.

But this view is by no means widespread, even on the right. Numerous constitutional scholars say the mandate is well within the scope of what the court has defined as commercial activity -- pointing to the 2005 case, Gonzales v. Raich, in which the Supreme Court found that the federal government could criminalize the growth and possession of medical marijuana, even when it was limited to within a single state, on the grounds that doing so was part of an effort to control the interstate drug trade.

Erwin Chemerinsky, the dean of the UC Irvine School of Law, noted in an op-ed in Politico last October that health-care coverage is far more closely related to commercial activity, and the national economy, than is the private growth of marijuana. "In 2007, health care expenditures amounted to $2.2 trillion, or $7,421 per person, and accounted for 16.2 percent of the gross domestic product," he wrote. And, he argued, the Supreme Court has never said that only people who are themselves engaged in commercial activity can be regulated under the commerce clause. For instance, the court found that the Commerce Clause could be used to require southern restaurants and hotels to serve blacks, even though what was at issue was their refusal to engage in commercial activity.

Jack Balkin, a constitutional law professor at Yale Law School, extends that argument. In a recent blog post, he notes that in the Raich case, Justice Scalia found that Congress can use the Commerce Clause to regulate, as Balkin put it, "even non-economic activities if it believes that this is necessary to make its regulation of interstate commerce effective" (itals TPM's). People who don't buy health insurance, Balkin argues, aren't simply "doing nothing," as Rivkin, Barnett et al. claim. These people pass on their health-care costs by going to the emergency room, or buying over-the-counter cures. "All these activities are economic, and they have a cumulative effect on interstate commerce," writes Balkin.

Several respected conservative legal experts essentially agree that the court would have to radically break with past rulings to strike down the law. John McGinnis, a former Bush 41 administration Justice Department official and a past winner of an award from the Federalist Society, told TPMmuckraker that the court could rule in favor of the AGs only by taking a radical Originalist view of jurisprudence -- one that all but ignores precedent. "I think the only person who shares [that view] is Justice Thomas." said McGinnis, now a constitutional law scholar at Northwestern Law School. "It's a very difficult argument to make under current precedent."

Doug Kmiec, a former Reagan administration Justice Department official, and conservative legal scholar, echoes that view. "The idea that a regulatory requirement (whether to purchase insurance or to purchase a smoke alarm) violates the Constitution by exceeding the scope of the commerce power was rejected in the age when Robert Fulton's steam ships were at the center of case controversy and the proposition has not gained validity with the passage into the 21st century," Kmiec, now the Obama administration's ambassador to Malta, told TPMmuckraker.

And Orin Kerr, a professor at George Washington Law School, who has served as a special counsel to Sen. John Cornyn (R-TX) and clerked for Justice Anthony Kennedy, likewise believes the bill is almost certain to pass muster. "I think it's very very unlikely that the mandate would be struck down as unconstitutional," Kerr told TPMmuckraker.

There's another problem with the lawsuit. Many judges are often reluctant to hear a challenge to a law until it has actually gone into effect -- what legal types call a "ripeness" issue. The individual mandate won't go into effect until 2014 -- by which time factors like the composition of the Supreme Court, and the underlying politics driving the lawsuit, may well have changed.

So what do these disagreements among experts mean for how the court is likely to rule? In short, how confident can we be that reform will survive the challenge?

Frederick Schauer, a constitutional law scholar at the University of Virginia, expresses what seems to be the most reliable view. He notes to TPMmuckraker that in the Lopez case, and in a subsequent 2000 case involving the Violence Against Women Act, the Supreme Court has held that there are limits on what constitutes commercial activity under the Commerce Clause -- shifting from the "anything goes" approach that had predominated since the New Deal. Despite the subsequent medical marijuana ruling, Schauer says, those cases offer the "slightest glimmer" to opponents of the bill -- but not much more than that. So twenty years ago, said Schauer, there would have been essentially no chance of the court striking down the legislation. Today, he says, "it's a real long-shot," but not completely out of the question.

[Mr. Big Dog 10,747]

Details on specific proposed legislation and legislation yet to be proposed are purposely excluded from this report.

Sorry, kiddo, but you're off the mark again. The specifics that CBO scored are those that Sen. Orrin Hatch provided to the CBO to obtain a score. That is what the earlier quoted estimate is based on.

A cap of $250,000 on awards for noneconomic damages;

A cap on awards for punitive damages of $500,000 or two times the award for economic damages, whichever is greater;

Modification of the collateral source rule to allow evidence of income from such sources as health and life insurance, workers compensation, and automobile insurance to be introduced at trials or to require that such income be subtracted from awards decided by juries;

A statute of limitationsone year for adults and three years for childrenfrom the date of discovery of an injury; and

Replacement of joint-and-several liability with a fair-share rule, under which a defendant in a lawsuit would be liable only for the percentage of the final award that was equal to his or her share of responsibility for the injury.

And yes, the 54 billion quoted is the estimated reduction of the federal deficit over 10 years if such measures were adopted. Put that figure in relation to the total federal outlays on health care over the same time period (35 trillion dollars) and you come up with a tiny 0.15% in savings to the federal health care outlays. Is a potential 54 billion deficit reduction still a worthwhile consideration? Absolutely. Is it the fix - or even a main pillar of a fix - for the ills of the system? Absolutely not.

Is it a fetish of the GOP? You betcha.

Edited March 24, 2010 by Mr. Big Dog

[Dan T 8]

Sorry, kiddo, but you're off the mark again. The specifics that CBO scored are those that Sen. Orrin Hatch provided to the CBO to obtain a score. That is what the earlier quoted estimate is based on.

actually i didnt you cherry picked my comment in order to make your point

And yes, the 54 billion quoted is the estimated reduction of the federal deficit over 10 years if such measures were adopted. Put that figure in relation to the total federal outlays on health care over the same time period (35 trillion dollars) and you come up with a tiny 0.15% in savings to the federal health care outlays. Is a potential 54 billion deficit reduction still a worthwhile consideration? Absolutely. Is it the fix - or even a main pillar of a fix - for the ills of the system? Absolutely not.

Is it a fetish of the GOP? You betcha.

would it draw ire from the left because theyre in bed with the tort lawyers?

[Dan T 8]

Is it a fetish of the GOP? You betcha.

when it comes to the 3g's im tripping over myself to put a world of distance between me and the GOP. They are full of religious zealots that rub me the wrong way on issues involving personal behavior.

That being said I vote with national security and my wallet first and foremost for which the dems, since JFK, have sought to destroy.

when we have too many righties in office that push to expand gun ownership, take away abortion, and reinstate sodomy laws ill be the first one screaming to throw the bums out but this business of using my money to pay for healthcare of the genetically lazy is far more pressing so yeah pallone and andrews have definitely awoken my support for whom ever chooses to run against them from the gop or libertaians if they can make a strong showing.

[Peikko 1,575]

Who the #### are the genetically lazy?

[I AM NOT THAT GUY 5,715]

Who the #### are the genetically lazy?

Pomps

[Dan T 8]

Who the #### are the genetically lazy?

theyre a subset of homosapiens that through some genetic malfunction sprout from the womb with no ambition to ever provide for their own basic subsitance except by begging from the rest of us who work for everything we have. the people at the bottom have a driving ambition to perpetually stay there, much in the same way as a ships anchor on the bottom of the sea.

i have no idea where they came from but i sure wish there was a way to send them back because they are sure sought out by people in our government as a voting block.

[Peikko 1,575]

theyre a subset of homosapiens that through some genetic malfunction sprout from the womb with no ambition to ever provide for their own basic subsitance except by begging from the rest of us who work for everything we have. the people at the bottom have a driving ambition to perpetually stay there, much in the same way as a ships anchor on the bottom of the sea.

i have no idea where they came from but i sure wish there was a way to send them back because they are sure sought out by people in our government as a voting block.

You do realize that there are not very many people like that? You do realize that even if by some miracle you could isolate these people and zap them, the problems of poverty would not change in any material way? You do realize that simply being poor does not mean that one is lazy? I guess not...

[DEDixon 39]

oddly I have no argument over anything youve stated here. i agree 100% with your assertions. that being said though i immagine that you blame abuses by insurance companies for these problems that we both agree need to be addressed. in my view the burden placed on our system by illegals and tort lawyers have more of causative influence on the direction of health care costs.

i am one of these contractors that you speak of, but in my case I do this by choice because its a higher pay check and keeps you from being a slave to any singular company. it also has the added benefit of getting to experience an endless variety of work environments. i would prefer to buy insurance that i can take with me from job to job without the govt telling me, or my insurence company, what i am allowed to purchase. although removing the burden of illegals and limiting lawsuit ammounts would probably bring down health care costs enough to almost eliminate the need for most people without chronic illness to skip using an insurance company altogether.

you must not have any pre-existing conditions.... yet.

i challenge you to get on the phone with an insurance company and tell them you have had a heartache or a stroke or that you have had back surgery. get what your rate will be. see if you can afford the rate. see if they will insure you. see if they will insure all parts of you except your back or anything having to do with your heart.

i was you before my back surgery. i was an independent contractor (with no pre-existing conditions) for mostly fortune 500 types, but i can't do that anymore. i need the group health my employer provides.

You do realize that there are not very many people like that? You do realize that even if by some miracle you could isolate these people and zap them, the problems of poverty would not change in any material way? You do realize that simply being poor does not mean that one is lazy? I guess not...

yeah, it could simply mean that you had a bunch of kids you know you couldn't afford. so you are fighting the the dumb gene too.

Edited March 24, 2010 by DEDixon

[Dan T 8]

you must not have any pre-existing conditions.... yet.

i challenge you to get on the phone with an insurance company and tell them you have had a heartache or a stroke or that you have had back surgery. get what your rate will be. see if you can afford the rate. see if they will insure you. see if they will insure all parts of you except your back or anything having to do with your heart.

i was you before my back surgery. i was an independent contractor (with no pre-existing conditions) for mostly fortune 500 types, but i can't do that anymore. i need the group health my employer provides.

yeah, it could simply mean that you had a bunch of kids you know you couldn't afford.

cry me a freakin river. that still does not justify a complete destruction of an entire section of private industry which is what this bill is the first step towards. this bill was not even meant to help perpetual contractors it was meant as a handout to tort lawyers and unions.