ObamaCare in Peril?

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ObamaCare’s potential encroachment on individual liberty did not strike the same chord with the liberal justices, who actually went further than the government’s lawyer in defending the justification for the individual mandate. At one point during yesterday’s hearing, for instance, Justice Samuel Alito pointed that out that if the mandate was legitimate because everyone needs health care, then there was nothing to stop Congress from passing a mandate requiring everyone to purchase burial services. After all, just as everyone will need health care, everyone will need a burial service at some point. Verrilli insisted that this was different because burial costs are covered by family and don’t impose costs on the rest of society like health care. But Justice Stephen Breyer not only accepted the analogy, he suggested that under certain conditions a requirement of burial coverage would be constitutional, a claim that put Verrilli on the defensive. The lawyer was quick to point out that the government was “advancing a narrower” argument than Justice Breyer had proposed.

Of course, there was never much doubt that Breyer and the other liberal justices would uphold ObamaCare and its central provisions. The main unknowns are Chief Justice Roberts and the court’s swing vote, Justice Anthony Kennedy. While Roberts is a conservative, some on the left believe that he might be inclined to uphold the individual mandate. They cite his support for an expansive interpretation of a constitutional provision in the 2010 case of U.S. v. Comstock, which gave Congress power to continue the civil confinement of sex offenders even after their sentence had expired. The case upheld the confinement under the Constitution’s Necessary and Proper Clause, which the Obama administration now cites to support the individual mandate.

It’s not that simple, however. ObamaCare opponents point out that the court’s opinion in that case also included a limitation on the use of the Necessary and Proper clause. Given the added fact that Roberts has not yet offered his view of the proper boundaries federal power, it is premature at best to assume Roberts’ support for the mandate.

Yesterday’s hearings did not offer much clarity about where Roberts stands. Although he cautioned about the dangers of unlimited congressional power, he also seemed to endorse the government’s argument that the health care market is qualitatively different from other products because everyone is takes part in the use of health care.

Mixed messages also came from Justice Kennedy. On the one hand, Kennedy questioned ObamaCare opponents’ claim that those who declined to purchase health insurance where outside the health insurance market and thus not subject to regulation. The line was not so clear, he said. At the same time, he said early on in the hearing that the government faced a “heavy burden of justification” in its effort to prove that the mandate constituted a legitimate use of its power.

To be sure, justices’ comments during oral arguments aren’t infallible guides to their final decisions. But since they will almost certainly be the deciding votes, the skepticism that Roberts and Kennedy have shown toward the government’s defense of the individual mandate is already making the legislation’s supporters nervous. If that skepticism is a preview of their opinions, yesterday’s hearing may mark the beginning of the end for ObamaCare.

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  • Anamah

    What is doing Kagan there? She had been on this issue before, so I thought she was going to recuse herself…

    • http://www.youtube.com/watch?v=nLNn2YflwNs Roger

      Agenda is more important than anything else.
      More important than personal morality, ethics, the harm this law will cause people….

      • Fred Dawes

        The blood this law will cause will be like a river, obama is just one more tool to take the ideals of the bill of rights and to make us all into good little monkeys of the state.

    • WSK

      She has no intention of recusing herself. She was nominated by the man-child messiah for the sole purpose of supporting Obamacare.

      • http://www.youtube.com/watch?v=nLNn2YflwNs Roger

        Yes, and the senate knew that and allowed it.

        The failed republican leadership on the hill need to resign in disgrace.

        • WilliamJamesWard

          Disgrace can only come to a person of standing and reputation, the low life's in Washington
          are nothing but hot air, I read recently a Will Rogers comment that the hot air over DC
          caused and overhead flying plane to catch fire from the outside, seems about right, politicians
          have declined decades ago and we need to revamp and go back to a Constitutional Republic.
          November either delivers us or we fall if not sold out already by our entire government and
          that is what I am thinking…………………………….William

    • mlcblog

      No conscience.

  • http://apollospaeks.blogtownhall.com/ ApolloSpeaks


    It was amateur hour for the Obama Administration at court today. The Solicitor General was poorly prepared to argue for the mandate. A reflection of the man on top who was poorly prepared to be President.

    Click my name for more on this subject.

  • penny lane

    By letting folks of the hook to insure themselves, you only pass the cost and risk to the general public when these people get ill and need care. Or can anyone envisage non insured accident or emergency citizens being refused treatment?

    The bottom line is -The irresponsible save cash, the general public foots the bill. But then again – Patriotic americans should be more than willing to support ailing countrymen. LOL

    • Looking4Sanity

      "Patriotic americans should be more than willing to support ailing countrymen. LOL "

      You say that as if it's the punch line to some sick joke. What it actually reveals is your lack of understanding of our Founding Principles and respect for what it means to be an American. Please note, for future reference, that you CAPITALIZE the name of your country out of respect as well as observance of proper grammar.

      It also reveals a shriveled little raisin where your heart and soul ought to be. I'm glad you're no neighbor of mine!

      • WSK

        You must be a better person than all of us. Just because you have “feelings” and “care” more doesn’t make you correct. It just clouds your judgement. This is about the Constitutionality (sp?) of Obamacare, not squishy feelings.

        • kim segar

          Nothing Constitutional about obamacare..gee, some peoples brains are made of cotton and they have just enough to make a tampax for a flee..

          • Fred Dawes

            90 percent are made of sh@%

      • pennylane

        Good grief! The king of patriots. Flys the flag but hates the elected president.

        • Looking4Sanity

          You find something incongruous in that? It is only natural for an American patriot to hate a President that violates the Constitution and his Oath of Office at every opportunity. Yes…I despise Barrack Obama. I DO NOT despise the OFFICE…but apparently Obama DOES!

    • tagalog

      Patriotic Americans traditionally have supported self-reliance and self-sufficiency. It's people in other countries who mistakenly see government as the Big Tit. Americans see it as a necessary evil that has to be watched continually to keep it from becoming tyrannical.

      Like fire, government is good if kept away from things it should not touch.

      The Obamacare Supreme Court brouhaha is a prime example. If government stayed out of the area of health care, there would be no concerns about the consitutionality of a government health-care law.

      • penny lane

        the goverment cant keep out of health care. Eventually all who have no medical coverage end up recieving care funded by the state a.k.a the taxpayer, a.k.a you and me.

        Why should the state force me to cover the cost of folks who have no intention of paying their medical bills and rely on my tax money to do it?

        The alternative would be to let these folks rot or die in their homes, in front of the hospitals or in the city streets. But we know that's not going to happen and they know it too. The insurance payer is the mug in this game, sadly.

        • reader

          The cost shifting turns out to be negligible, i.e., the cost shifting argument is a ruse. It's all about the government take over. Exactly as per one of the justices' questions: are you going to create a market in order to regulate it? Once this is allowed to pass, there's no limitation to the commerce clause. It will be catch-all for ANY government mandate.

        • tagalog

          "Why should the state force me to cover the cost of folks who have no intention of paying their medical bills and rely on my tax money to do it? "

          My sentiments exactly.

          To allow the government to do such a thing fosters tyranny among our leaders and sheeplike addicts of the governed. If there is no government-funded health care, the government doesn't get involved in that game, so it's not inevitable that those who neglect their health are automatically going to be taken care by some magic government system of care.

          Before government-funded health care like Medicaid and Medicare, there weren't bodies lying in front of their homes or in front of hospitals. Families took care of family members. There's no reason why that practice can't be revived, and quite frankly it should be. After all, since 1973, every child born has been a wanted child, right? Is there something wrong with the cultural idea that parents take care of their dependent children, and later children take care of their dependent parents?

        • Fred Dawes

          No its about control if you have a job you are cover under law, if you are a vet you are cover under law, its about control and taxs by the back door.

    • Fred Dawes

      If obama and the powers to be attack the people the people will always win in law or in blood.

  • WildJew

    I do not trust Associate Justice Antony Kennedy. Early on in yesterday's hearing he was behaving as though he was with the conservative Justices when he spoke of the changed relationship between the government and the people under Obamacare. I was watching Charles Krauthammer explain to O'Reilly last night how Kennedy, near the end of the hearing, appeared to be looking for a way (out) to vote with the liberal Justices in favor of the Individual Mandate. Kennedy might say healthcare can be the exception to the rule in terms of changing the "relationship between government and the people." I do not trust this man. He has a history of leftist rulings. Doesn't he?

    • http://www.youtube.com/watch?v=nLNn2YflwNs Roger

      Only if he can do it and still pretend he's not a liberal hack.
      Do you remember the retiring justice Souter who voted for the imminent domain case then was upset they targeted his home? If the local city hadn't protected him he would have faced the consequences of his own actions.

      We need judges exposed to the consequences of their rulings more often. If they had to be on obamacare and had to be put on hold hoping for a death panel to change their mind they'd understand the tyranny it represents.

    • Stephen_Brady

      He’s basically called the “swing vote” because he can go either way. from the statements quoting him, I believe he will vote to strike the mandate from law, i.e., vote with the conservatives on the Court. Do away with the mandate, and there’s no longer a need for the law, because the mandate is at the heart of the law. Then, I think it would be relatively easy to repeal the rest of the law, since it would have no teeth.

      However, Obama could the attempt to resurrect it by saying, “We’ve failed with the original bill, but we still need an affordable healthcare bill. I’ve directed that the original be be repealed, so we can start a new one. That’s why you need to re-elect me for a second term, so that we can give hope to people without it.” With 86% of previous Obama voters saying they will vote for him, again, and Romney at 62% favorability, it’s a tactic that just might work … for him, not America.

      God help us …

      • WilliamJamesWard

        It may be that Divine intervention is the only help we will have……………………William

      • Jim_C

        You're right, and it will work, Stephen, for the simple fact that Republicans have never been interested in systemic reform outside some lip service to tort reform. Outside of attacking Obama/Romneycare, what can they offer but more of the same?

        One way or the other, coverage has to be universal and mandatory. Right now, while our quality of care is good, our bang for the buck is not. Swiss system, people! Rational, private-based, but universal and mandated.

    • Jim_C

      I think part of the problem with this country is we "distrust" people with independent opinions. We shouldn't be able to "trust" any justice to hew to our political beliefs, though that is the way the court is arranged. We should have a court filled with Kennedys–people who might just have to look at an issue from both sides being argued.

  • WildJew

    If there is a five to four ruling in favor of Barack Hussein Obama's Marxist legislation — which he pushed Democrat-controlled Congress to adopt — the US Supreme Court will yet again (e.g., Dred Scott vs. Sanford, Roe v. Wade, etc.) have disgraced itself.

    • scum

      Marxist legislation? That's baiting in a big way. Shameful. Enjoy your overpriced healthcare, and watch the price balloon out of control when Obamacare is shot down. The Republican approach: "The system is broke, so why fix it?"

      • http://www.youtube.com/watch?v=nLNn2YflwNs Roger

        If you wan to lower costs, that's admirable. But Obamacare doesn't do that.

        The republican system is let government get out and the market system will adjust on it's own.
        Medicare and medicaid are breaking the banks, lawyers and the courts and breaking the providers.

        This isn't a market system collapse, this is the removal of the market system causing the collapse.

  • DogsHateRomney

    OBAMACARE where HEARSE & NURSE are relative terms……….

  • DogsHateRomney

    FLASHBACk May 2010: "Conservative lawyers and academics are voicing support for Supreme Court nominee Elena Kagan,"

    When Barack Obama’s two faculty mentors at Harvard Law got in trouble for plagiarism, they were rescued by Dean Elena Kagan.

    Kagan, Obama, and the Harvard Legacy of Literary Fraud….

  • Fred Dawes

    "Look its all about Control", and its about money it is a new way of raping the people! its not about helping anyone but about the money and the control over people, its about the money for the bankers and its about keeping you in line. The USA Is dead and the big boys know that fact.

  • scum

    Sure, and Justice Scalia spoke about 'cutting out the Cornhusker Kickback.' Only problem, it's been long gone. And when he objected to an item by item analysis of the bill, he simply mocked the idea, saying he wasn't interested because, to paraphrase, "it wouldn't be easy for me." That's why he gets the big bucks, for his amateur performance and unwillingness to perform his one duty in life. So enjoy your victory. But here's the litmus test: You can only laugh if, in 5 years, the number of insured in America goes up. On the contrary, if the number of uninsured goes up beyond the 45 million or so currently uncovered, will you still be laughing?

    • http://www.youtube.com/watch?v=nLNn2YflwNs Roger

      Scalia isn't a legislator. He's a judge. The legislature gets to go over bills line by line.
      Scalia is simply to evaluate whether it's up to the constitutional tests. And the lawyers argue that and explain their positions.

      Why are you attacking a Judge that actually knows his job and doesn't want to step beyond that?

  • BLJ

    Kagan is a clown.

  • xkn

    It should be clear that Obamacare was not an ultimate goal. Totalitarians never want half-baked solutions, and so
    the Obamacare was just devised as a vehicle to deliver the country to the "single-payer" system, which is always the ultimate goal. Government run health-care system like in UK or Canada or any other socialist country is the ultimate and only acceptable goal to marxists currently in power. Obamacare was primarily devised to skyrocket the costs of healthcare so much, that people would overwhelmingly ask for a government-run health-care. This is classical application of the Cloward-Piven strategy, which was and is a party line of the American hard-left. Some of institutions devised by Obamacare would stay in single-payer system thus facilitating the final transition. Of course, once the goverment-run health system is enacted, some new taxes will be necessary since single-payer really has no money to pay anything, so money would have to be collected for it. This is how it works in UK and Canada, and
    "every civilized country", right?. Can this be accomplished? I am betting that it can. It was accomplished in the case of public education, on the state-level mostly. We have "single-payer" K-12 education system, like it or not. However, American peculiarity is that private system will be allowed to exist with government run-one, just like private education on all levels is allowed to co-exist with public, taxpayer funded system. Just like for education, which everyone pays for, regardless if they have or have not children or if those children go to private school, similar system will eventually be implemented in the health-care. Supreme Court may or may not put some bumps on the road, but ultimately, because current system is completely broken with annual cost increases of 9% or so, it is moving in the direction where "something would need to be done". Marxists have a solution ready when that happens. There is absolutely no political will to address obvious gross malfunction in the operation of the current health-care system and introduce some basic semblance of the free-market principles into its operation. But hey, if you think that government cannot run hospitals, just look at the VA system.

  • WilliamJamesWard

    If I was in the medical field I would feel just fine knowing almost every disposable bit of income will be
    put into paying me for what I do. When I was a child we had Doctors living in the neighborhood but as
    insurance came in and costs rose all of the Doctors moved out to new homes for the rich, and now
    almost all Medicine and Law control almost all of our lives in one way or another. I visit my Doctor,
    lawyer, and gas station workers and they are all wearing ski-masks and hoodies…………..William

  • WilliamJamesWard

    A friend of mine with insurance spent several days in a hospital and had insurance, after the insurance
    payed he was left with a $30,000.00 debt and had his pay attached because he could not pay it. Now he
    barely can heat his home and eat, the entire healing profession is in the hands of drug companies,
    insurance scammers and the side effects as they say can kill you…………….William

    • http://www.youtube.com/watch?v=nLNn2YflwNs Roger

      Did you make that scenario up on your own?

      I used to verify insurance benefits at an acute care hospital. If your friend only had a bare bones catastrophic plan he would have had to have had a heart transplant or something to owe that much. And if he wanted a lower out of pocket limit he should have had one.

      Do you think that Obamacare will even offer the kinds of treatments he received for that kind of bill? I don't. He would get rationed care. I would rather work hard and keep my benefits thank you very much.

      • WilliamJamesWard

        The scenario as you call it is as best I can remember, the amount of time he was in the Hospital
        is actually much longer and I am considering several days in intensive care, he was ill with
        spinal meningitis and was very close to death. I am no one to ask how much it costs to stay
        in a hospital but the last I heard it was over $1,000.00 a day not counting Doctors care and
        extras, maybe specialists of differing expertise. My friend had a basic plan, how much catastrophic
        insurance is involved is unknown to me. People have insurance and think they are covered
        for more than they actually are, people assume to much. My personal belief is the present
        cost of insurance is excessive and the amount left to be paid after insurance is excessive unless
        you have a rich mans policy which is out of bounds for anyone I am associated with.

        Obama care ……..anything with that snake oil salesman's name attached to it is and immediate
        and complete put of for me and I would not trust him for anything. ……..working hard and keeping
        benefits is the way to go…………………….William

  • Jim_C

    If I were a doctor or healthcare professional, I would be OK with the idea that I may not make as much money under a new system–AS LONG AS I WAS GETTING PAID. Your business may look great on paper, but what good is that money if you're experiencing 2 years delay in getting it? How do you pay your staff? And I fear if we went to a government-run system, people simply wouldn't get paid. That's how it is right now. And I don't know how many of my liberal friends understand what that means.

    Now I wonder if the insurance and pharmaceutical industries who have had a heavy hand in all these dealings feel the same about a shrinking margin. I suspect they'd be the dragon to slay. But I think under the Swiss or Singaporean model, as businesses they'd be able to figure out a profitable model via "boutique" coverages beyond a basic package.

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