If Affordable Care Act had a Public Option, the constitutional question would be irrelevant.

[librechik]

How stumbling cowardly & stupid was it to leave that out of the finished version? Now they have every hope to get it dropped! I blame conservatives more than Obama, but jeez, couldn't they look ahead a bit?
And it saves money too! This new "unconstitutional" ruling today is just karma for Axelrod, Reid and the rest.

[DrDan]

1. it certainly did not get much of a fight from the WH

[barbiegeek]

2. Congress wrote HCR, Not Obama. Congress writes the laws not the Pres

[Jackpine Radical]

3. The insurance industry wrote HCR.

Not Obama, not Congress.

[bobbolink]

14. Thanks.. you beat me to it.

The truth isn't all that popular.

[Better Believe It]

25. That's a nice dodge. The buck stops with Congress, not the President.

President Obama and his representative with "sharp elbows", Rahm Emanuel, made it absolutely clear what they wanted and did not want in the bill.

Do you think Emanuel's job was making coffee in the morning?

It was the Obama administration which cut the deal with the insurance industry and big Pharma to keep out the public option and the importation of cheaper drugs from Canada.

This has all been fully documented.

It's not speculation.

Too pretend that President Obama was an innocent bystander who had little to say about the content of the Health Insurance Industry and Big Phrama Protection Act is pure hogwash.

The President indicated exactly what he wanted in the "stimulus", health care and other major legislation passed and Congress wrote the legal language to implement his policy choices.

Why President Obama even cut a backdoor deal with Republicans to extend the various tax cuts for the rich and corporations which was then written into law by Congress.

His fingerprints are all over the deal.

And do you really believe that Obama had little or nothing to do with that legislation because "Congress writes the laws".

And did you forgot that President Obama signed that law with great fanfare?

President Obama thanks you for trying to help him pass the buck.

[guruoo]

4. 'Individual mandate' clause will be used as leverage

to broker a public option.

[barbiegeek]

5. Bingo! And the prize goes to U! ;)

[barbiegeek]

6. Yes, it's so sad for those of little faith.

[librechik]

7. hope you are right, cuz we really put our foot in it!

and a Public Option or Medicare 4 All would help.

[librechik]

10. Won't we have to wait until we have a majority in the House again to try for that?

I see it going down in flames even harder now than when we had the majority.

[BzaDem]

8. No, actually, it wouldn't. Without the mandate, the public option would go bankrupt in 5 minutes or

have to charge thousands per month. If the public option tries to give access to all comers without discriminating on the basis of pre-existing conditions, no one would buy into it until they needed to, and premiums would go from being unaffordable for many to being unaffordable for all.

[librechik]

9. We have to have the mandate AND a public option to overcome constitutional issues.

Then most would continue to buy private insurance as usual, but if no one wanted to be forced to buy the private product, they could go to the public option. It would be up to administrators to make sure both options are funded in order to stay vital. And with the mandate, that could be done.

[BzaDem]

11. Nope. People have this fantasy idea here that the issue is about buying a private product.

That isn't the issue. The only constitutional question is whether Congress can mandate you to buy any product on a market. Whether or not there is a public option is irrelevant to the constitutional question of the mandate. If there were a public option in the bill, today's decision would have come out exactly the same.

Could Congress tax people and provide health services to all? Sure. The power to tax is completely separate from the commerce clause. However, Congress could likewise tax people for not buying private health insurance under the taxing power. (The Reagan judge got around this problem by using nonsense rhetoric to declare the mandate not a tax, even though it is obviously a tax.)

[librechik]

12. Thanx, BzaDem, but HERE is the real issue: severability

http://tpmdc.talkingpointsmemo.com/2010/11/conservative-suit-against-the-mandate.php

"Quite often, legislators include what's known as a "severability clause" in their bills. These are meant to protect the bulk of a law in the event that a small portion of it is determined to be unconstitutional. That small portion must go, or be changed, but pretty much everything else is allowed to stand.

In a sin of omission, Democrats left such a clause out of the health care law, and now the plaintiffs in at least one of the cases against it want the court to take an axe to the whole thing if the judge decides that the individual mandate provision is unconstitutional..."

which is probably a different way of saying what you are saying...

On edit, read your comment about severability in another thread. Now I'm completely confused. But somewhat more hopeful that ACA can survive.

[BzaDem]

15. I would say the most important issue is over the constitutionality in the first place.

And on that, the judge is clearly wrong (as I said in the other thread).

However, even if we assume the judge is correct on the constitutionality (which he isn't), he is most certainly wrong on the severability. Much (though not all) of the act could easily be severed from the mandate.

[hansberrym]

16. As an Income Tax, yes, but not that is not what Congress did.

Judge Moon also said it was not a tax.
Plaintiffs allege in Count Eight that the penalty provisions set forth in the Act for the employer and individual coverage
requirements are unconstitutional capitation or direct taxes. Whether the Act was authorized
under the commerce power or the power to tax is relevant to this consideration. Edye v.
Robertson (Head Money Cases), 112 U.S. 580, 595-96 (1884). The imposition of assessments is
a legitimate means of regulating commerce, and “f regulation is the primary purpose of a
statute, revenue raised under the statute will be considered a fee rather than a tax.” South
Carolina ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir. 1983) (exaction on commerciallysold
milk not a tax); see also Rodgers v. United States, 138 F.2d 992, 994 (6th Cir. 1943) (cotton
marketing quotas not a tax); United States v. Stangland, 242 F.2d 843, 848 (7th Cir. 1957)
(wheat marketing quotas not a tax).


What was your honest opinion of Judge Moon's "decision not to purchae" as a nexus activity? Do you honestly think COngress can tax our thoughts?

[BzaDem]

17. What does taxing your thoughts have anything to do with it? Congress can tax anyone who does not

provide health insurance. The taxing power of the Constitution doesn't say "unless it is a tax for people who don't have health insurance."

[hansberrym]

18. Read Judge Moon's opinion. Which taxing authority? n/t

[BzaDem]

20. Income tax.

The tax does not fall on anyone who doesn't earn income, and the tax is never higher than one's income (since anyone making less than 133% of the poverty line gets free Medicaid).

[hansberrym]

27. Yeah, but that is not how the PPACA defined the penalty..n/t

[Statistical]

19. Just like employer based plans go bankrupt?

Nobody forces you to buy into employer based plans.
One technically could simply wait until sick and then get coverage.

Strangely employer based coverage seems to be doing just fine. The overwhelming majority of healthy individuals purchase coverage through their employer when given the option.

This idea that only the sick would opt for coverage is unproven claim which is taken as gospel.

Care to explain why that hasn't happened in the employer based system?

[BzaDem]

21. No, employer plans don't go bankrupt, because when people opt out of health coverage through an

employer, the employer gets to pocket thousands of dollars for not providing insurance.

[Statistical]

22. That doesn't help the insurance companies.

Technically all the health people *could* opt-out, and only the sick and unhealthy people opt-in.

Despite no mandate, no penalty, that doesn't happen. The overwhelming majority of young healthy Americans opt-in to their employer based plan despite there being no mandate.

Something you claim is impossible. Healthy people will only buy insurance if forced right? That is the point of the mandate. Except we can see with our own eyes that is fallacy. Every day tens of millions of health employees buy employer based insurance despite not being forced.

Mandates aren't required. If the insurance is structured so that it provides value people will opt-in (as they do every single day). If the insurance is structured to maximize profits for shareholders and minimize benefits for participants then you are right it will require the full weight the of federal govt enforcement to force compliance.

The question is why did Congress come up with a plan so lacking in value that it requires punitive mandates to enforce compliance?
Is it beneficial to participants? Unlikely. Is it beneficial to insurance companies? DING DING DING We have a winner.

[Hello_Kitty]

24. 85% of the U.S. has coverage, despite the absence of a mandate.

That includes 70% of young adults.

[Hello_Kitty]

23. Really?

That's funny because I was told that employers plow savings on health care costs back into wages. That was the rationale behind the Excise Tax, remember?

And now you tell me they pocket it.

[MisterP]

13. Obama, Daschle, Baucus, etc., were not hired by the PTB to improve our lives

their intent was a mandate, and they knew that their party suffix would protect them from criticism by 20-40% of the people who would otherwise be on their backs on this as-Constitutional-as-Nixon aspect of the bill

[Recursion]

26. How?

The existence of a public option doesn't bear on the question of the enforceability of a mandate.