Friday, June 29, 2012

Justice Ginsburg's opinion

I was advised by the blog Lawyers, Guns, and Money to read her opinion. I've started reading it even though I'm tired. And since she writes so clearly and effectively I wanted to quote some of the passages I am finding helpful:

The Framers understood that the “general Interests of the Union” would change over time, in ways they could not anticipate. Accordingly, they recognized that the Constitution was of necessity a “great outlin[e],” not a detailed blueprint, see McCulloch v. Maryland, 4 Wheat. 316, 407 (1819), and that its provisions included broad concepts, to be “explained by the context or by the facts of the case,” Letter from James Madison to N. P. Trist (Dec. 1831), in 9 Writings of James Madison 471, 475 (G. Hunt ed. 1910). “Nothing . . . can be more fallacious,” Alexander Hamilton emphasized, “than to infer the extent of any power, proper to be lodged in the national government, from . . . its immediate necessities. There ought to be a capacity to provide for future contingencies[,] as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.” The Federalist No. 34, pp. 205, 206 (John Harvard Library ed. 2009). See also McCulloch, 4 Wheat., at 415 (The Necessary and Proper Clause is lodged “in a constitution[,] intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”).

Here she cites my two favorite founders. Basically it's stating that the commerce clause provides congress with pretty wide ranging power because they knew they couldn't think of every single economic activity that would be relevant and whether such activities needed or didn't need regulation. I also like this passage because it confirms my "But, Hamilton" theory which states that originalism is useless because you can consistently count on Alexander Hamilton to give you an expansive interpretation of what congress can do under the constitution. And since this is before Washington was president you can count on Madison to do so as well.

So citing the commerce clause as their authority, congress and the president decided to do this:

Congress comprehended that guaranteed-issue and community-rating laws alone will not work. When insurance companies are required to insure the sick at affordable prices, individuals can wait until they become ill to buy insurance. Pretty soon, those in need of immediate medical care—i.e., those who cost insurers the most—become the insurance companies’ main customers. This “adverse selection” problem leaves insurers with two choices: They can either raise premiums dramatically to cover their ever-increasing costs or they can exit the market. In the seven States that tried guaranteed-issue and community-rating requirements without a minimum coverage provision, that is precisely what insurance companies did. See, e.g., AAPD Brief 10 (“[In Maine,] [m]any insurance providers doubled their premiums in just three years or less.”); id., at 12 (“Like New York, Vermont saw substantial increases in premiums after its . . . insurance reform measures took effect in 1993.”); Hall, An Evaluation of New York’s Reform Law, 25 J. Health Pol. Pol’y & L. 71, 91–92 (2000) (Guaranteed-issue and community-rating laws resulted in a “dramatic exodus of indemnity insurers from New York’s individual [insurance] market.”); Brief for Barry Friedman et al. as Amici Curiae in No. 11–398, p. 17 (“In Kentucky, all but two insurers (one State-run) abandoned the State.”).

This wasn't completely clear to me before. But this explains why the mandate (or tax) is needed in order to make the rest of the law work. If you knew an insurance company couldn't deny you coverage because you were sick, why would you buy insurance if you were healthy? You would be perfectly rational to not buy the coverage, save money, and use that saved money to buy coverage if you got sick or had an accident. Meanwhile, the insurance company isn't collecting the money from you that they need to pay for the costs of other people's medical expenses. Thus, in order to get that money they need, they raise the rates on those who are still paying. After that happens, when you finally get sick, you have to pay high rates to get coverage.

Here she is citing the conservatives' own precedent in Raich:

Similar reasoning supported the Court’s judgment in Raich, which upheld Congress’ authority to regulate marijuana grown for personal use. 545 U. S., at 19. Homegrown marijuana substantially affects the interstate mar- ket for marijuana, we observed, for “the high demand in the interstate market will [likely] draw such marijuana into that market.” Ibid.

That's in response to the claim by Roberts that you can't regulate something based on the future effect it will probably have on interstate commerce. Like the rest of us, she doesn't seem to follow the reasoning that you can regulate the potential effect growing pot will probably have on interstate commerce but you can't regulate the potential (more certain) impact not buying health insurance will have on interstate commerce.

Then she goes on to make a point that I kept going back to in regard to a unique aspect of the insurance market:

Maintaining that the uninsured are not active in the health-care market, The Chief Justice draws an analogy to the car market. An individual “is not ‘active in the car market,’ ” The Chief Justice observes, simply because he or she may someday buy a car. Ante, at 25. The analogy is inapt. The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price. See Thomas More Law Center v. Obama, 651 F. 3d 529, 565 (CA6 2011) (Sutton, J., concurring in part) (“Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life.”). Upholding the minimum coverage provision on the ground that all are participants or will be participants in the health-care market would therefore carry no implication that Congress may justify under the Commerce Clause a mandate to buy other products and services.

That point being the fact that emergency rooms have to treat people. To me that was always a key to the unique nature of the health care market and the activity/inactivity debate. If the uninsured were not required to be treated by emergency rooms I would probably have to agree that the mandate is unconstitutional. But it is a requirement and it drives up the price of insurance for everyone else. And just the uninsured's presence creates risk for the insurance company and thus forces them to raise prices on the insured. So even the inactivity of not buying insurance has a substantial impact on interstate commerce.

That's all for now. There's a lot more to her opinion, mostly pertaining to the necessary and proper clause and the ruling on the medicare expansion. I'll try to get to it later.

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