I don't know of any, but there may be. Not exactly a fresh example, but Dred Scott was leaked to President Buchanan.

I imagine that President Obama and the GOP will find out what is going to happen ahead of time. Though, it raises a very interesting question. If they do find out the outcome, could they influence the clerks who will be mainly responsible for writing the opinion? I would be very suprised if anyone other than Chief Justice Roberts writes the majority opinion one way or another, so I figure his clerks are going to be under heavy pressure from just about everyone for the next couple of months.

Justice Kennedy is dishing out tough questions to both sides. I love that all morning, all the blogs have been signaling he's a lost vote for the mandate because he posed some hard questions to the Solicitor General, and now they're all acting surprised because he's turning around and doing the same to Paul Clement. Umm...that's his job, i.e. to probe the weaknesses in both sides' arguments. It's not necessarily indicative of anything, other than that he wants them to explain the holes in their respective positions.

Yeah, he's just doing his job. If anything, armchair pundits should appreciate the fact that he's not presently acting like a hack for either side.

If anything, armchair pundits should appreciate the fact that he's not presently acting like a hack for either side. It's good we don't have another Scalia or Thomas in his place, but somehow I still don't really appreciate being ruled by the benevolent King Anthony.

Well, that's basically what I was getting at. You take what you can get when the court is this hopelessly right-wing.

I hope it's ruled unconstitutional. I do not want to give any president or congress, GOP or DEM, the power to tell me I MUST purchase a certain product or pay a fine.

It's bad policy, but still constitutional.

Justice Kagan is tearing Paul Clement a new asshole on the challengers' Medicaid argument.

The Court has extended the time for arguments on the Medicaid expansion issue.

What exactly is the argument about Medicaid?

The plaintiff states are arguing that the ACA's expansion of Medicaid (which expansion the federal government will fund 100% of for the first several years it's in effect, then 90% after that) violates the "Coercion Doctrine." Under the expansion provision, states could be disqualified from receiving federal funds under Medicaid altogether if they do not comply with the new coverage requirements. In a nutshell, "Coercion Doctine" basically says that the federal government can pressure states to change their laws by attaching reasonable conditions on the receipt of federal funds, but that it cannot compel states to act by attaching conditions that are not reasonably related to the expenditure of the funds at issue. Importantly, there is substantial debate whether Coercion Doctrine has even actually been adopted as an aspect of constitutional law. It arises mainly from dicta and non-controlling opinions (especially Justice O'Connor's dissent in South Dakota v. Dole, which involved the federal government's conditioning state receipt of federal highway funds on states raising their drinking ages to 21). No federal statute has ever been overturned based on the "coercion" argument. Here is the states' brief on the Medicaid issue, if you're interested: http://aca-litigation.wikispaces.com/file/view/States+brief+as+petitioner+%28Medicaid%29.pdf And the federal government's brief on the issue: http://aca-litigation.wikispaces.com/file/view/U.S.+brief+%2811-400+Medicaid%29.pdf

I do not want to give any president or congress, GOP or DEM, the power to tell me I MUST purchase a certain product or pay a fine. How is it substantially different from any other government program where you pay taxes to receive a product or you are fined for not paying taxes? The government already tells me I have to purchase the military we have, Medicaid, Social Security, disability insurance, politicians' salaries, etc.

How would the 1986 EMTALA federal mandate that all hospitals that receive any money from the federal government (i.e. just about all of them) must treat anyone needing emergency healthcare regardless of their ability to pay be viewed in light of the "Coercion Doctrine"? Or really, the government can't require individuals to have health insurance but can require that hospitals provide it for free to them?

I don't think there would be much of a case that that requirement is coercive, since patient treatment is directly related to that funding. Of course, that seems to be the case in this instance as well, which is why the Medicaid argument is the weakest of all of the challenges to the Act. It came as a big surprise to pretty much everyone that the Court even granted cert on it.

I do not want to give any president or congress, GOP or DEM, the power to tell me I MUST purchase a certain product or pay a fine. You don't get a choice with health care anyway. At some point in your life, even if it's when you die, you will be a consumer of health care. That's the false equivocation in this whole mess. EVERYONE is a health care user. This law just says that you have to have insurance to cover that eventual cost.

I suspect they'll toss out the individual mandate, but retain the rest of the statute. Which is sort of the best-of-both-worlds.

Well, except that premiums will skyrocket because it would be smart to only get insurance if you are non-healthy.

That is the significant point about the individual mandate that seems lost on many people. Yes, granted, no one likes being directed to do something they don't *think* they need, but unless that component remains in the law, guaranteed issue and community rating just cannot function effectively. If people can simply wait until they have cancer or some other illness to buy insurance, then that's what everyone will do. It means the only people in the risk pool will be sick people who need coverage presently, and that means insurers will be paying out to every one of their insureds at once. One of the central points of the mandate is to ensure that there are healthy individuals paying into the market to offset the additional costs insurers are going to have because they can no longer refuse coverage based on pre-existing conditions (that, and to prevent the cost-shifting that goes on when emergency rooms have to provide care to people without insurance). Requiring insurance companies to foot the bill for millions more people via guaranteed issue, without a commensurate increase in the number of healthy people paying into that system is not workable. It's like maintaining Medicare benefits for everyone but no longer taxing people to pay for it. Clearly that can't work.

Tossing just the mandate would bring about a high stakes game of chicken in Congress. Doing nothing would screw over insurance companies and everyone in the individual market. I don't know if that would be enough to bring Republicans to the table to do something about it though.

The idea that insurance companies will lower premiums out of the kindness of their own hearts is patently absurd. Consumers will have no recourse as long as they're mandated to buy insurance from a non-competitive marketplace.

Who said anything about them lowering premiums out of the kindness of their heart? The addition of healthy individuals into the pool is simply to offset the added expenses they'll have of covering additional sick people at the same rates as everyone else. Seriously, how do you expect insurance companies to feasibly cover those costs if everyone can simple wait until they contract an illness to buy insurance? Do you not agree that doing that is going to cause severe adverse selection problems in the insurance market?

Who said anything about them lowering premiums No one. That's part of the problem.

Cost containment is one of the law's biggest weakenesses, that much is true. The exchanges should help with that somewhat, but there's no doubt that goal was one of the bigger misses here. Still, the particular reforms I noted are dependent on the mandate to work adequately. You really can't separate them. Even the government concedes that the pre-existing condition bad isn't severable from the mandate.

*ban