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Posner's Take On Today's Decision Is, Unsurprisingly, CR
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Date: June 28th, 2012 11:21 PM
I am not surprised that the health care law was upheld (except for the Medicaid provision, and I don't think that ruling will have much effect) by the Supreme Court. I was confident, despite the shellacking given the solicitor general at the oral argument and the Intrade odds that were so strongly predictive of invalidation, that the law would be upheld and that Chief Justice Roberts would write the majority opinion. But I thought the vote would be 6-3, with Kennedy joining Roberts and the liberal wing, and that the ground would be the commerce power. Not that there is anything wrong with upholding the law under Congress' power to tax.
The question of whether an exaction is a tax arises mainly in cases under the Tax Injunction Act, which forbids federal courts to “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law,” provided that an adequate remedy is available in the state courts. I happened to write an opinion for my court a few years ago in which the issue was whether a pair of Illinois statutes that required casinos to deposit 3 percent of their revenues in a segregated state fund—the “Horse Racing Equity Trust Fund”—for disbursement to the racetracks, for the purpose of increasing winners’ and runner-ups’ purses and improve the tracks, imposed a tax within the meaning of the Tax Injunction Act, and we held that it did, even though the exaction was not called a tax. We pointed out that it was not called a tax because "tax" has become a dirty word (this I believe is one of the psychological consequences of the economic depression in which the nation finds itself), which is the same reason the tax in the health care law on people who don't buy health insurance is not called a tax.
But it is a tax. The health care case didn't involve the Tax Injunction Act, but a similar statute, the Anti-Injunction Act, applicable to federal taxes (it forbids enjoining the assessment of such taxes, thus relegating the taxpayer to a suit for refund); the court held that Congress didn't intend that act to apply to the health care law. But it upheld the penalty for failing to buy health insurance on the sensible ground, similar to the approach taken under the Tax Injunction Act, that though they called it a penalty, it is functionally a tax rather than a fine or a fee.
I thought the court would uphold the "mandate" (that is, the requirement, backed up by the tax or penalty, of buying health insurance) on the basis of the Commerce Clause because it is obvious, or at least seemed and seems obvious to me, that the requirement is within Congress' power conferred by Article I of the Constitution to regulate interstate commerce, because respected conservative lower-court judges (Judges Silberman and Sutton) had voted to uphold the mandate, and because invalidating it, necessarily on (as it seemed to me) flimsy grounds, and by a 5-4 vote (the five conservatives versus the four liberals) during an election year, would look like taking sides in the campaign. It would give President Obama an opening to run against the Supreme Court. It would confirm the widespread opinion of the "Roberts Court" as being the conservative mirror image of the Warren Court. It would be bad for the court, and a chief justice is by virtue of his position the justice most concerned with the court's power and prestige as an institution. The other justices have a greater incentive than he to trade off the court's power and prestige against their own influence and prestige, which often can be enhanced by an oppositional posture.
The health industry is of course an interstate business; there is a continuous flow of health insurance payments, health insurance reimbursements, drugs, doctors, patients, donations to hospitals, research money, etc. across state boundaries. Congress' regulatory power under the Commerce Clause is not limited to direct control of an interstate transaction; it includes the regulation of activities that affect an interstate industry, with "activities" including inactivity. The public accommodations provisions of the Civil Right Act of 1964 were upheld on the basis of the commerce power, even though the provisions required hotels and other places of public accommodation to do something—namely serve black travelers—that they didn't want to do, to force them, in short, to engage in interstate commerce they didn't want to engage in. And so it is with requiring drivers to be licensed—they would prefer not to have to pay a license fee. Of course they can avoid the fee just by not driving, but tell Americans not to drive and you might as well tell them cut off their feet in order to escape sales tax on shoes.
The young people who refuse to buy health insurance because they don't expect to get sick and if they do go to emergency rooms—and are billed, but just try collecting!—are free riders, like draft dodgers. They increase health costs for the rest of us.
The chief justice, echoing Justice Scalia's "broccoli" comment at the oral argument, rejected (as did the four dissenters, and so that is now the view of a majority of the justices) the Commerce Clause ground for the mandate, saying that to accept that ground would mean that "Congress could address the diet problem by ordering everyone to buy vegetables." This argument, reassuring though it is to our obese population, confuses separate constitutional provisions. The Commerce Clause would empower Congress to order everyone to buy vegetables, because the market for most vegetables is interstate, but the "liberty" protected against the federal government by the Fifth Amendment would doubtless be interpreted to forbid such an imposition, just as it would be interpreted to forbid a federal law requiring everyone to be in bed with the lights out by 10 p.m. in order to economize on the use of electricity and, by doing so, reduce carbon emissions from electrical generating plants.
I am surprised, finally, by the lifelessness of the joint dissenting opinion.
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Date: June 28th, 2012 11:48 PM
5 judges above your pay grade disagree. |
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Date: June 28th, 2012 11:49 PM
"The young people who refuse to buy health insurance because they don't expect to get sick and if they do go to emergency rooms—and are billed, but just try collecting!—are free riders, like draft dodgers. They increase health costs for the rest of us." |
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Date: June 28th, 2012 11:50 PM |
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Date: June 29th, 2012 12:36 AM |
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Date: June 29th, 2012 9:33 AM |
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Date: June 29th, 2012 9:48 AM |
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Date: July 1st, 2012 7:58 PM |
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Date: June 29th, 2012 5:28 AM
>The young people who refuse to buy health insurance because they don't expect to get sick and if they do go to emergency rooms—and are billed, but just try collecting!—are free riders, like draft dodgers. They increase health costs for the rest of us.
We no longer live in reality. |
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Date: June 29th, 2012 9:35 AM |
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Date: July 8th, 2012 4:44 PM |
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Date: July 1st, 2012 2:31 PM
Posner just loves to be a fucking contrarian, this is horseshit. |
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Date: June 28th, 2012 11:33 PM
But his commerce analysis and his take on inactivity/activity is weak and unsatisfactory. There's a huge distinction between the 1964 Civil Rights laws which regulated commercial activity currently taking place (i.e., if you run an interstate hotel you must do xyz) and the mandate, which forces people to enter the market. Just saying "whelp they're bound to enter the market at some point!" doesn't really cut it.
That's why upholding as a tax makes much more sense. |
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Date: June 28th, 2012 11:36 PM |
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Date: June 29th, 2012 12:11 AM |
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Date: June 29th, 2012 1:31 AM |
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Date: June 28th, 2012 11:53 PM
Increase my dick in your mouth, bitch. |
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Date: June 29th, 2012 12:12 AM |
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Date: June 29th, 2012 12:16 AM |
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Date: June 29th, 2012 9:20 AM |
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Date: June 29th, 2012 12:17 AM |
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Date: June 29th, 2012 8:10 AM |
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Date: June 29th, 2012 12:19 AM
GOOD FUCKING POINT |
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Date: June 29th, 2012 12:29 AM |
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Date: June 29th, 2012 12:52 AM |
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Date: June 29th, 2012 12:45 AM
lmfao. yeah you old faggot, that's what's going on. young people visiting ERs is burdening Boomers and driving up medical costs. |
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Date: June 29th, 2012 5:30 AM |
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Date: June 29th, 2012 7:48 AM |
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Date: June 29th, 2012 8:53 AM |
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Date: June 29th, 2012 9:51 AM |
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Date: June 29th, 2012 8:11 AM |
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Date: June 29th, 2012 9:02 AM |
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Date: June 29th, 2012 9:20 AM |
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Date: June 29th, 2012 9:21 AM |
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Date: June 29th, 2012 9:21 AM |
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Date: June 29th, 2012 9:23 AM |
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Date: June 29th, 2012 9:24 AM |
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Date: June 29th, 2012 9:26 AM
To explain how the adverse selection problem arises in these markets, note that people purchasing health insurance generally have better information about their health status than the people selling the insurance. If insurance is offered in this market at somewhere near the average cost of care for the group, people will use the superior information they have about their own health status to determine if this is a good deal for them. All of the people expecting to pay less for health care than the price the companies are asking for the insurance will drop out of the market (the young and healthy for the most part; all that is actually needed is that some people are willing to take a chance and go without insurance). With the relatively healthy people dropping out of the insurance pool, the price of insurance must go up, and when it does, more people drop out, the price goes up again, and the result is just like in the used car example above: The market breaks down and nobody (or hardly anybody) can purchase insurance. |
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Date: June 29th, 2012 9:29 AM
But please stick with my point for a minute. It's wrong to say that we are "free riders," isn't it? Free riders consume without paying, so that the other consumers have to overpay.
Posner argues that our generation must pay for more than we consume so that the olds can pay for less than they consume. That is not "free riding," strictly speaking, is it? |
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Date: June 29th, 2012 9:31 AM |
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Date: June 29th, 2012 9:33 AM |
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Date: June 29th, 2012 9:39 AM |
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Date: June 29th, 2012 9:45 AM |
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Date: June 29th, 2012 9:42 AM
lulz |
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Date: June 29th, 2012 9:24 AM |
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Date: June 29th, 2012 9:28 AM
The harder argument for the SG, which Posner doesn't bother taking on, is describing the form of activity a perfectly healthy person is engaged in that constitutes interstate commerce. The health care market, by virtue of breathing? Or is it "inevitable" participation in a market that makes you participate. I thought Roberts handled the activity/inactivity arguments decently well by showing how limitless it was. Not that Posner seems bothered, as he said the government can mandate just about anything (more candor than the gov't was willing to admit), and leave it to courts to expand DPC & privacy rights to address it. |
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Date: June 29th, 2012 9:39 AM |
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Date: June 29th, 2012 9:40 AM |
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Date: June 29th, 2012 9:47 AM
"The young people who refuse to buy health insurance because they don't expect to get sick and if they do go to emergency rooms—and are billed, but just try collecting!—are free riders, like draft dodgers."
FUCK, the .01% of young people who default on some hospital bill first of all are charged about 100 times what it should cost because that's how ER is set up these days to collect huge bills against insureds. That goes to subsidize the FUCKING medicare and medicaid patients who pay WAY LESS FOR ALL OF THEIR SERVICES.
Also, the prices that young people can buy insurance at ARE WAY FUCKING HIGHER THAN THEY SHOULD BE especially under some state laws BECAUSE THEY WERE MANDATED TO BE THAT WAY SO OLDS AND POORS CAN PAY LESS. This is now about to be triply true under OBAMACARE.
YOUNG PEOPLE WHO DON'T BUY INSURANCE ARE NOT LIKE FREE RIDING DRAFT DODGERS. THAT'S WHAT THE BOOMER OLDS ARE LIKE. YOUNG PEOPLE ARE LIKE PEOPLE WHO DONT WANT TO PAY THOUSANDS PER YEAR STRICTLY TO SUBSIDIZE THE SHITTY FUCKING BOOMERS AND EVERYONE ELSE. POSNER, DIE IN A FIRE |
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Date: June 29th, 2012 9:51 AM
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Date: July 8th, 2012 4:23 PM |
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Date: July 8th, 2012 5:10 PM |
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Date: June 29th, 2012 9:54 AM |
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Date: June 29th, 2012 9:59 AM |
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Date: July 1st, 2012 2:25 PM |
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Date: July 1st, 2012 2:29 PM |
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Date: July 1st, 2012 2:41 PM |