The biggest debate of the 2012 election will be unleashed in the next few days, as the Supreme Court releases their decision on the controversial “Obamacare” Affordable Care Act.
The key issues before the Court are whether Congress can fund the program by imposing an individual mandate that fines citizens for not purchasing health insurance, and whether the court can rule against that provision without overturning the entire law.
Over three days in late March, the Supreme Court held the longest oral arguments in 45 years as both sides presented their cases. The politics surrounding the Court’s ruling have taken center stage; it is expected that the Court will decide on ideological lines, with conservative judges seeking to strike down the ACA or critical parts of the legislation.
Republicans have assailed the individual mandate, the “heart” of Obamacare, as the element most likely to undo the president’s health care law. The individual mandate outlines that it is required by law that citizens purchase their own health insurance.
As the court will vote along liberal-conservative lines, Justice Anthony Kennedy will be the wild card. Kennedy’s “swing vote” is unpredictable and it’s anybody’s guess on how he will vote on Obamacare. If he votes against the ACA, it will be five Republican-appointed justices against the law, and four Democrat-appointed judges voting for, giving the appearance that politics played an issue in the decision.
Whether Obamacare is upheld or struck down, the topic is sure to be a political firestorm in the hot summer of election 2012. Were the Court to strike the bill down, GOP presidential candidate Mitt Romney would have new political capital to hammer Obama on. If upheld, Obama would be vindicated and would hold up the legislation as a showcase in his first term.
A June 11 poll found that Americans are divided on the issue, with 53% favoring repeal of the law, while 39% oppose repealing.
PolicyMic will be following the announcement LIVE, and will be providing update analysis as announcements are made. (Bookmark and refresh this page for LIVE updates)
Thursday, 12:15 am ANALYSIS: Here's an analysis from your's truly:
In a landmark decision, the Supreme Court has ruled to uphold the individual mandate and declare Obamacare legal.
The bottom line: the entire Affordable Care Act was upheld, with the exception that the federal government's power to terminate states' Medicaid funds was narrowly read. Ironically, it was conservative Chief Justice Roberts who joined the liberal majority and declared the individual mandate constitutional as a tax.
Most had thought Justice Anthony Kennedy would be the swing vote, yet he joined the dissent.
Whether you’re a Republican, Democrat, Independent, Other, or Just Don’t Care, the controversial health care decision which was handed down by the Supreme Court very much affects you.
Here’s the run-down of the implications: There will be more insured people. Those insured people will help contain health care costs. You will pay less money for health care.
The individual mandate was the heart and soul of the “Obamacare” health care law. The key issue before the Court was whether Congress can fund the program by imposing an individual mandate that fines citizens for not purchasing health insurance, and whether the Court can rule against that provision without overturning the entire law.
The individual mandate is important, because it forces people to purchase health insurance beforethey are sick, rather than after. This is critical for market dynamics, as the economics of the individual mandate sought to force down health care costs.
Some analyses have shown that forcing a population to have health care coverage increases the amount of health care providers, driving down costs.
The new law is a big win for millions of uninsured and underinsured young adults. The law expands Medicaid to cover people making under $14,400 a year. Almost 8 million uninsured young adults could benefit from this option. The law also creates tax credits for those purchasing insurance who earn under $43,000 a year. Roughly 75% of young people ages 19-29 fall in this category. The tax credits limit the amount an individual pays in insurance premiums for a plan purchased on a state exchange. Third, the law will allow young people to stay on their parents’ health plan to age 26. The OMB estimates that as many as 1.2 million previously uninsured young people could gain coverage through this plan.
The bill also seeks to streamline coverage. We devote 17.4% of our economy (by GDP) to paying for health care (or $7,960 per person each year), and still leave millions without coverage. In contrast, the French spend 11.8% of GDP on health care (or $3,978 per person) and cover everyone; the French live two years longer, on average, than Americans, and have better health by all key measures. Single-payer is a term used to describe a type of financing system. It refers to one entity acting as administrator, or “payer.” In the case of health care, a single-payer system would be setup such that one entity — a government run organization — would collect all health care fees, and pay out all health care costs. In the current US system, there are literally tens of thousands of different health care organizations — HMOs, billing agencies, etc. By having so many different payers of health care fees, there is an enormous amount of administrative waste generated in the system.
Analyses from the Congressional Budget Office and the RAND Corporation have shown that average premiums on the state insurance exchanges would be 10%-20% higher or more if the individual mandate were not part of the law.
The Supreme Court decision is a major victory for you, and for every American's health care costs.
Another Good One:
11:28 am: PolicyMic Pundit Chris Ryan Drops Some Knowledge:
Americans, rejoice! Your royal government has given you a choice!
You get to choose between buying a very specific, expensive product that you may not need or want, and paying a fine ... oops, I mean a tax, instead!
Oh, the blessings of freedom!
The Supreme Court today upheld the government’s ability to impose a fine on individuals who have the gall to refuse to participate in specific economic activity that the government decides is in everyone’s best interest.
The good news for those worried about runaway government power is that the Court did not expand the government’s power to regulate interstate commerce any further. The bad news is that calling the mandate a tax completely cancels out the good news.
From now on, America is a place in which the government can require everyone to buy anything, as long as Congress is prepared to levy taxes on people who do not want to buy the product in question.
The obvious question is: What’s next? What other choices will our royal government bless us by providing? Perhaps a choice between buying a Brita water filter and paying a tax? Or a choice between joining a gym and paying a tax? If my health is so very important to the government, and I am so incapable of making my own decisions about it, why should the government’s control over my health stop at insurance?
And what about behavior? I’m sure the government would think it best for me to stop writing this article. Perhaps I should have the choice to either stop writing this, or pay a tax! Since the Supreme Court decided today that the government’s taxing power trumps any reasonable reading of the Tenth Amendment and the Commerce Clause, the government’s taxing power may just trump my First Amendment rights as well.
With this principle in hand, there is no clear, obvious limit to the government’s power to regulate individual behavior.
What can’t they do now? What other choices do we have to look forward to?
Thursday, 10:45 am: Among other comments, Ginsburg bench statement says that "seven members of theCourt ... buy the argument that prospective withholding of anticipated funds exceeds Congress' spending power."
Thursday, 10:40 am: Kennedy is finished reading from dissent. Ginsburg now reading from her opinion, which helps make the majority but not necessarily in agreement with Chief's reasoning.
Thursday, 10:37 am: No, court's decision is NOT good news for Romney. But not hugely bad news for him either. Preserves the status quo.
Scene outside of the Supreme Court:
Thursday, 10:34 am: Amy Howe of SCOTUS BLOG: In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding.
Thursday, 10:30 am: In opening his statement in dissent, Kennedy says: "In our view, the entire Act before us is invalid in its entirety."
Ha, that just about covers it.
Thursday, 10:27 am: Justice Ginsburg makes clear that the vote is 5-4 on sustaining the mandate as a form of tax. Her opinion, for herself and Sotomayor, Breyer and Kagan, joins the key section of Roberts opinion on that point. She would go further and uphold the mandate under the Commerce Clause, which Roberts wouldn't. Her opinion on Commerce does not control.
Thursday, 10:25 am: CNN Gets it Wrong, says Obamacare's Individual Mandate was struck down.
CNN now has Wolf Blitzer explaining not how the Court ruled, but how CNN was wrong in their original assessment. Great reporting guys.
Thursday, 10:21 am: The decision was 5-4, btw, Kennedy dissented ... ironically conservative Chief Justice Roberts was the swing vote.
Thursday, 10:16 am: PolicyMic Legal Expert Mark Kogan: "This is the Obama administration's wet dream."
10:15 am: The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read.
10:12 am: Obamacare Upheld: The Decision is complicated and we are reading now.
Individual Mandate is constitutional as a tax. Chief Justice Roberts joins the liberal majority.
Thursday, 10:08 am: Individual Mandate Upheld ... Waiting on details.
Thursday, 10:04 am: Here Come the Decisions, Obamacare likely at 10:15 am: Stolen Valor Act, 9th circuit is affirmed.
Guide to PolicyMic SCOTUS Coverage:
View From Outside the Courthouse: The Supreme Court does not allow cameras inside the Court, so there will be no live stream of the decision itself, but for live coverage of the rallies in support and in protest of Obamacare, watch C-SPAN's excellent feed here.
Expert Analysis: For expert analysis of the decision and its impact on young people, the 2012 elections, and the future of Obama's presidency, we've got you covered. Jason Orr explainsObamacare must be defeated. Chris Ryan discusses the history and magnitude of this decision. Italk about the way the decision will impact young people. More great articles to come.
Other Decisions: The Supreme Court will also be ruling on the legality of the Stolen Valor Act, which, on any other day, would be a major news story. For live coverage of that decision and analysis, follow Mark Kogan's reporting here.
Thursday, 9:55 am ANALYSIS: The first case SCOTUS will look at will be United States v. Alvarez.
The Stolen Valor Act, a law signed by President George W. Bush, makes it a crime to falsely claim past military service, will likely be struck down 9-0 by the Supreme Court.
As Amy Howe of SCOTUS Blog explains: "In another year, [this case] would be high-profile in its own right. Alvarez involves very interesting First Amendment issues ... but tomorrow it will be a mere footnotes in history."
Here's a look at why this issue is so important:
Background on United States v. Alvarez: As the Supreme Court gets ready to sit down for its March session next Monday, all attention is fixated on the three-scheduled days of oral arguments centered on the Patient Protection and Affordable Care Act, also known as Obamacare.
However, while the health care debate will certainly get its day in court (and on PolicyMic, I promise) there are a number of opinions expected to be signed out in the first days of the March term that carry weighty implications for the future of our constitutional rights.
Chief among them is the case of United States v. Alvarez, which asks the Court to determine whether a federal law that makes it a crime to lie about military service violates the First Amendment.
President George W. Bush signed the Stolen Valor Act into law in 2006 following a rash of media reports surrounding individuals who lied about military service for a variety of reasons. The act makes it a crime to represent oneself as having received any U.S. military decoration or medal, with violations punishable by up to a year in prison.
Xavier Alvarez, a then-elected member of a local government board, was charged with violating the act after he introduced himself at a meeting as “a retired Marine of 25 years” who, “back in 1987, was awarded the Congressional Medal of Honor” for alleged wounds suffered in combat.
The problem was that Alvarez was never actually awarded any medal or distinctions by the military due in large part to the fact that he had never served a single day as a member of the military. After being charged and convicted, Alvarez sued, alleging a violation of his First Amendment rights.
While the law is certainly well intentioned, it is written haphazardly, creating a trap for the wary and unwary alike. The law, as written, sweeps far too broadly. It unquestionably ensnares political dissidents and film stars just as effectively as fraudsters and conmen.
By making it a crime to make “false claims” without needing to demonstrate criminal intent or harm caused, Congress has made it a crime for a child to wear their parents’ t-shirt that says “I was awarded a purple heart.” It has made every actor in Hollywood that portrays a soldier in a movie a federal criminal every time they step out of wardrobe.
The law in its current state must, and likely will, be struck down as a violation of the First Amendment.
That said the idea behind this law is clearly not unconstitutional. While the First Amendment protects many things, it does not protect lying with intent to harm. The legal system calls that fraud and that certainly receives no constitutional shielding.
It is no argument that our servicemen and women deserve to be recognized and honored for their sacrifices and commitments. Legislation intended to protect their service from those seeking to make personal gains via impersonation is both reasonable and understandable.
If Congress wishes to ensure that the intent of this law continues to be carried out, as evidence suggests it certainly does need to be, then Congress must implement a harm requirement to target the law at the liars seeking to leverage unearned valor to advance their own interests. Until that happens, the Court will likely find it to fail in passing constitutional muster and rightly so.
Thursday, 9:48 am ANALYSIS: Obamacare MUST Be Struck Down, courtesy of PolicyMic Pundit Jason Orr:
This Thursday, the Supreme Court is expected to issue its ruling in the landmark challenge to the Affordable Care Act. While upholding the law would further entrench the court’s already incomprehensible Commerce Clause jurisprudence, striking down the infamous individual mandate would create opportunities to halt or even scale back the step-wise transformation of the Commerce Clause into a general police power never contemplated by the Framers.
The Constitution creates a government of limited powers, including the power to “regulate commerce.... among the several states.” Throughout most of American history, this language was interpreted to limit the reach of Congress to matters of interstate commerce — transactions for goods and services that crossed state borders. After the New Deal, the Interstate Commerce Clause was expanded with strained logic to create what resembles a federal police power, mirroring that power of states to legislate generally with reference to the public health, safety, and welfare.
In Wickard v. Filburn (1942), the Supreme Court upheld the enforcement of federal limits on wheat production against a farmer growing wheat for personal consumption, reasoning that because Filburn’s homegrown wheat reduced the need for him to buy wheat on the commodities market, Congress could control how, when, and to what extent he grew it. Filburn was forced to destroy his crops and pay a fine, even though he was not engaging in commerce and his actions were in no way interstate. In 1995, the Supreme Court put a modest and flexible limit on the modern, expanded Commerce Clause, ruling that Alfonso Lopez could not be convicted under a federal law prohibiting firearms in school zones. Because his activity was “non-economic,” such that one would have to pile “inference upon inference” to see a connection between Lopez’s gun possession and interstate commerce, the court struck down the “Gun-Free School Zones Act” as unconstitutional. Yet, in the 2005 case of Gonzales v. Raich, the Supreme Court apparently embraced once more the free-wheeling Commerce Clause of Wickard, ruling that Congress can regulate as interstate commerce the small-scale growing of marijuana exclusively for personal, medicinal use as allowed by state law.
As a result of these cases, Congress has been able to pass legislation under the Interstate Commerce Clause to regulate virtually any aspect of Americans’ economic lives. This was the context in which Congresswoman Nancy Pelosi famously retorted “Are you serious?” when a reporter asked her which part of the Constitution empowered Congress to pass the Patient Protection and Affordable Care Act, better known as “Obamacare.” This law offers every American the choice between purchasing a government-approved health insurance policy or paying a penalty. In the course of the constitutional challenge to Affordable Care Act, the government maintained that this individual mandate was needed to cure the failures of the health care insurance market — Obamacare commands commerce in order to better regulate it.
Many, if not most, Americans are concerned with the size and scope of government. If the Tea Party movement showed anything, it was that many people believe their government has grown to improper and even unlawful proportions. The vast expansion of federal government in the 20th century occurred in large part because the Supreme Court failed to give meaning to the limits imposed on Congress by the Constitution. As a result, Congress felt empowered to pass a law premised on the idea that the federal government may force Americans into contracts with private companies in order for regulators to more conveniently micromanage their economic affairs. The Affordable Care Act is an unprecedented reach into citizens’ lives, it exceeds any legitimate role of the federal government, and it is unconstitutional.
On Thursday, the Supreme Court will issue its opinion in this important case. If it upholds the law as constitutional, they will reinforce the departure from a proper reading of the Commerce Clause that has led to the unbridled expansion of government authority over our lives. If it strikes down the Affordable Care Act as unconstitutional, however, the court will place some limit on the modern Commerce Clause, cautioning Congress against such brazen overreach into our economic lives. A sufficiently forceful opinion could even give future litigants a foothold in making future challenges designed to scale back the unconstitutional scale of government.
The Affordable Care Act challenge offers the best hope of cropping an overgrown state, and proponents of limited government will cross their fingers in anticipation of the court’s ruling.
Thursday, 9:40 am ANALYSIS: History Shows It's Now or Never For GOP, Now Or a Long Wait for Dems: From PolicyMic Pundit Chris Ryan:
Today the Supreme Court will change the course of American political history.
There’s no doubt about that.
How is much less certain.
Though the substance of the Court’s decision will remain unclear until tomorrow morning, a glance back at America’s political past sheds light on what we can expect in America’s political future, whether the Affordable Care Act is upheld or struck down. If the law is upheld, will Republicans be able to repeal it? If the law is struck down, will Congress pass something similar?
The history of major federal social welfare initiatives, like Social Security, Medicare and Medicaid, and the Affordable Care Act, reveals two major points: 1) being passed requires perfect political timing; and 2) once on the books for good, serious talk of repeal quickly fizzles. If upheld, repealing the Affordable Care Act will not be as easy as opponents hope. If struck down, supporters will face tremendous obstacles in attempting to pass a similar law. History suggests that it's now or never for opponents, and now or a long wait for supporters.
Large-scare federal social welfare expansions have historically had very particular windows of opportunity to become law. If an opportunity is missed, it may be some time before another chance comes. The Roosevelt administration made an initial effort at national health insurance, but could not get anything through before a more conservative mood gripped the country. Though Presidents Truman and Kennedy also favored national health insurance, the federal government took no steps in that direction until the stars aligned almost 30 years later in 1965 with the passage of Medicare and Medicaid. Just a few years later, Congress failed to pass President Nixon's Family Assistance Plan, which promised federally guaranteed minimum incomes for the poor and unemployed. The Family Assistance Plan remains dormant, now 40 years later. The Affordable Care Act itself demonstrates that timing is crucial — it took Democrats 45 years to force through this further massive expansion of national health care, and Congress only passed the bill because the House approved a version of the bill that the Senate approved before new Senator Scott Brown joined the upper chamber. Barely two years after that historic vote, the political climate has completely changed — there can be no doubt that Congress would not pass the Affordable Care Act now. If the Court strikes down the law, its supporters may be waiting decades for another bite at the apple.
When the Roosevelt Administration instituted Social Security and the Johnson Administration established Medicare and Medicaid, the programs passed and were signed into law in the face of bitter opposition that largely vowed to pursue repeal. Yet within a few short years in both instances, serious proposals to eliminate the new programs quickly faded away. Instead, the debate changed to how Congress would tinker with and refine the programs, rather than whether the programs would continue to exist. Serious calls for repeal withered as Americans began to rely on receiving the programs’ benefits. If upheld, the Affordable Care Act will adhere to this same pattern--once it is on the books, it will be virtually impossible to remove.
FDR famously insisted in presenting Social Security to the country as a social insurance program, not a welfare program, because he knew that future voters would never favor disbanding a system that they paid into, and felt entitled to receive something from later on. As a result, in FDR’s words, "those sons of bitches up on the Hill can't ever abandon this system when I'm gone." And they haven’t — not even as the system drives toward bankruptcy. The Affordable Care Act has cleverly aligned incentives the same way.
If the federal government is permitted to get their foot this far in the door of health insurance, they will stay there, and probably move further in, for as long as the United States exists. It’s now or never for Obamacare’s opponents.
But if the law is overturned, the perfect timing that this legislation requires will probably not come again for decades.
In less than 24 hours, we will begin to see if one of these histories will repeat itself.
Thursday, 9:15 am ANALYSIS: In short, if the Supreme Court decides to strike down the individual mandate, it would be a disaster for millennials. Here are 5 reasons why:
Legal experts will be analyzing the decision from every angle, and political pundits will speculate as to the impact of the Court's decision on Romney's and Obama's 2012 election chances. But one angle that's likely to be less covered is how the decision will impact young people.
In short, if the Supreme Court decides to strike down the individual mandate, it would be a disaster for millennials. Here are five reasons why:
1) The Affordable Care Act gives additional health care coverage to millions of young adults. The new law provides coverage to millions of uninsured and underinsured young adults. The law expands Medicaid to cover people making under $14,400 a year. Almost 8 million uninsured young adults could benefit from this option. The law also creates tax credits for those purchasing insurance who earn under $43,000 a year. Roughly 75% of young people ages 19-29 fall in this category. The tax credits limit the amount an individual pays in insurance premiums for a plan purchased on a state exchange. Third, the law will allow young people to stay on their parents’ health plan to age 26. The OMB estimates that as many as 1.2 million previously uninsured young people could gain coverage through this plan.
2) The law helps to end the worst abuses of the insurance industry. The ACA prevents insurance companies from denying people coverage based on a pre-existing condition, raising rates after people get sick, and canceling an existing policy to avoid paying claims (“Rescission”).
3) Obamacare makes it easier to find and buy insurance. The new law seeks to make insurance easier to compare and buy by creating online exchanges. Each state will have responsibility for creating an exchange where individuals can go to compare plans and purchase the package that works best for them. This new competition should help to reduce prices and improve the quality of insurance plans.
4) The law requires people to take responsibility for purchasing insurance, a provision that starts in 2014. By encouraging more people to buy in, the individual mandate reduces insurance premiums by spreading risk over a wider population. Those who don’t purchase insurance end up visiting emergency rooms without the ability to afford care, pushing the cost of their treatment on everyone else.
5) The law can indirectly spark young people to be more entrepreneurial, risk-taking, and creative. By allowing young people to remain on their parents' plans until the age of 26, Obamacare makes it easier for millennials to join startups and take on non-traditional jobs and projects, and still not have to worry about getting sick. This freedom could mean that the creation of more great American companies like Facebook is on the horizon.
Young people should be hoping the the SCOTUS upholds the individual mandate, plain and simple.
Thursday, 7:30 am ANALYSIS: What Will Happen to YOU if the Individual Mandate is Shot Down?
Here's a fun infographic, mostly highlighting how heath insurance premiums would spike:
Monday: Obamacare Decision Expected on Thursday: The Supreme Court’s decision on the controversial Obamacare legislation is now expected on Thursday.
The decision will likely be announced shortly after 10 a.m.
Many analysts expected the Supreme Court’s health care decision to come down on Monday. Instead, other major decisions were announced, including a ruling which mostly shot down Arizona’s polarized SB 1070 immigration law, and one which extended the campaign finance ruling of Citizens United to states.
Both of those decisions are likely to be heavily debated, and may have a significant impact on the 2012 elections.
The Obamacare ruling, though, is seen as the big one, the grand finale in this Supreme Court session.
So we keep waiting, and the Court keeps stringing us all along in this wild ride.
Why Will Obamacare Be Decided On Thursday? PolicyMic Legal Expert Mark Kogan explains that the Court probably does not want to double-up big cases. The health care decision is also the most complicated and most contentious, and there are potentially many opinions, which have to be checked, re-checked, and made sure to be consistent with one another, etc.
There are lots of moving parts, so maximum time to make sure everything is right is critical.
The key issues before the Court are whether Congress can fund the program by imposing an individual mandate that fines citizens for not purchasing health insurance, and whether the court can rule against that provision without overturning the entire law.
Republicans have assailed the individual mandate, the “heart” of Obamacare, as the element most likely to undo the president’s health care law. The individual mandate outlines that it is required by law that citizens purchase their own health insurance.
As the Court will vote along liberal-conservative lines, Justice Anthony Kennedy will be the wild card. Kennedy’s “swing vote” is unpredictable and it’s anybody’s guess on how he will vote on Obamacare. If he votes against the ACA, it will be five Republican-appointed justices against the law, and four Democrat-appointed judges voting for, giving the appearance that politics played an issue in the decision.
A senior member of the Court will likely present the opinion.
Why Does Chief Justice Roberts Get to Give the Obamacare Opinion? Again, our Legal Expert Mr. Kogan explains: The way it works is the senior judge usually gets the right to choose an opinion if they want it, meaning if Kennedy is the most senior in the majority, he can choose it. Similarly, the Chief could flip and commandeer the opinion because he is automatically most senior. It may be Kagan's opinion for all we know. But conventional wisdom says one of the more seniors took it, especially if it’s upheld. If it’s reversed, it may be a more junior justice (like Thomas or Scalia).
Opinions are generally randomly assigned. If a senior judge chooses it, it’s because they can write an opinion that can win a majority. In other words, Roberts can also take it if the majority is going to win to narrow the decision.
So, for example, let’s say its 5-4. The 5 in the majority will either randomly assign it, or the most senior judge there can take it. Anyone can write dissents/ concurrences. But the majority has to be written in such a way as to get all 5 to sign on, at least for the conclusion. Let’s say Kennedy joins the liberals, Roberts can jump from the minority to the majority and take the opinion, to write it more narrowly.
Monday: NO OBAMACARE RULING TODAY
Monday, 10:27 am: From Kogan: Basically, the Court said that the "status check" portion of the bill (Section 2(B)) needs to be construed further in state courts to determine its proper application and whether it is pre-empted (ie. trumped) by federal law.
The upshot of the SB 1070 ruling is that, for now, Arizona can apply the "check your papers" provision. And the Court's opinion is a guide to the State on how to apply that provision without being invalidated.
Monday, 10:23 am: From Kogan: Basically the "papers please" is thrown back to the lower courts for further determination. Issues of racial profiling were not before the Court.
For our readers who are not lawyers, "preempted" means "trumped," in essence.
Monday, 10:19 am: Breaking: Most of the key provisions in Arizona SB 1070 invalidated.
Most of the key provisions of SB 1070 (3 of 4) are invalidated. One provision is held not to be proved preempted; it must be construed.
Not all of SB 1070 is shot down, though. From Mark Kogan: The "papers please" portion is NOT pre-empted. We have to wait for the opinion to see what that means.
Monday, 10:09 am: From PolicyMic Legal Expert Mark Kogan: Short opinion, short dissent. 5-4, Montana Supreme Court overruled, Citizens United is applied against the states (no limits on independent political expenditures in state elections). Citizens United was only applied to federal elections, now applies to states. Breyer was the dissent.
Monday, 10:05 am: WOW. Montana case summarily reversed, 5-4. Citizens United has just been extended to the states
Monday, 10 am: Reverse seniority of Justices goes as follows: Kagan, Sotomayor, Alito, Breyer, Ginsburg, Thomas, Kennedy, Scalia,and Roberts. Which is the order we'll hear opinions in.
Monday, 9:56 am: Expect a Decision Within Seconds After 10 a.m. The Court's promptness is traditional. The current Chief Justice definitely adheres to the tradition of starting on time. However, perhaps as a former advocate, he is more flexible in terms of letting advocates finish their sentences and even giving them a little extra time if it is needed. One of the old Chief Justices, I am told, used to cut people off mid-sentence when their time was up.
Monday, 9:52 am: Health Care ruling prediction courtesy of Legal Expert Mark Kogan: God, I don't know. I don't know about the Individual Mandate, but regardless of what happens with the Individual Mandate, the rest of the law will stand.
Mark says SB 1070, the Arizona Immigration Law, will be shot down.
Monday, 9:40 am: This is a busy week for all three branches of the federal government. The Supreme Court finishes its term with rulings on health care and immigration, Congress faces deadlines on student loan rates and the transportation bill along with a looming contempt vote in the House of Attorney General Eric Holder. President Obama is on the road for fundraisers in MA, NH, GA, and FL until Wednesday when he hosts the annual congressional picnic at the White House.
Monday, 9:23 am: Why Does Chief Justice Roberts Get to Give the Obamacare Opinion? Again, our Legal Expert Mr. Kogan explains: The way it works is the senior judge usually gets the right to choose an opinion if they want it, meaning if Kennedy is the most senior in the majority, he can choose it. Similarly, the Chief could flip and commandeer the opinion because he is automatically most senior. It may be Kagan's opinion for all we know. But conventional wisdom says one of the more seniors took it, especially if its upheld. If its reversed, it may be a more junior justice (like Thomas or Scalia).
Opinions are generally randomly assigned. If a senior judge chooses it, its because they can write an opinion that can win a majority. In other words, Roberts can also take it if the majority is going to win to narrow the decision.
So, for example, let’s say its 5-4. The 5 in the majority will either randomly assign it, or the most senior judge there can take it. Anyone can write dissents/ concurrences. But the majority has to be written in such a way as to get all 5 to sign on, at least for the conclusion. Lets say Kennedy joins the liberals, Roberts can jump from the minority to the majority and take the opinion, to write it more narrowly.
Monday, 9:10 am: What to Watch For Today: PolicyMic Legal Expert Mark Kogan drops some knowledge on what to expect aside from Obamacare and Arizona: The other big thing the look for is the list of orders, specifically the list of petitions for certiorari that will be granted and heard by the Court. The Montana case is expected to be announced this morning, bringing Citizens United back into the national spotlight.
Following orders, opinions will be announced one at a time in reverse order of seniority, with the Chief Justice always last. Meaning if we have an opinion from Justice Kennedy or Chief Justice Roberts (the likely authors if the mandate is upheld), we will be hearing from them last.
Don't be surprised to see the Court announce another opinion day (probably Thursday) and push health care back to there.
Monday, 8:30 am: Ruling is Expected at 10 a.m. This Morning, if it comes out at all today.
Sunday: Montana Case Could End Citizens United: The biggest legal challenge yet to the controversial campaign finance Citizens United decision — which loosened regulation on corporate spending in elections — has come to the Supreme Court.
A relatively obscure case in Montana,American Tradition Partnership v. Bullock,would seek to make Citizens United void on the state-level, thus inflicting the first blow in the effort to repeal the decision.
The Supreme Court is expected to make a decision on Bullock before the end of their term, likely on Monday.
At issue is whether Montana is bound by the original decision of Citizens United — that any ban on corporate independent political expenditures (unlimited corporate speniding, so to speak, also known as the “corporations are people” issue) is a violation of the First Amendment, when the ban applies to state, rather than federal, elections. The 2010 Citizens United decision helped create the modern Super PACs that are now fueling the 2012 presidential elections.
Montana has a century-old law, the Corporate Practices Act, which prohibits corporations from making expenditures in campaign activities (in effect, anti-Citizens United legislation). This law was brought about in 1906 because national copper mining companies were bribing elected officials and becoming directly involved with government functions. Ironically, this is the nightmare scenario that many critics of Citizens United point to — unchecked business interests hijacking the democratic process. The Corporate Practices Act was a voter-adopted referendum that fought back against corporate interests and worked to end the corruption that unlimited funding caused in Montana’s government.
The corruption in Montana is an excellent example of unlimited funds can have on government.
It was thought that the Supreme Court would strike down this legislation, which was a late addition to the Court docket. The case was submitted for review, but wasn’t fully argued.
But on Monday, the Court surprised most analysts by delaying an order in the , their controversial 2010 ruling that allows for virtually unlimited corporate spending in state elections.
The Court was expected by many to issue an immediate decision of “summary reversal” in the case American Tradition Partnership v. Bullock that would uphold Citizens United and strike down a 2011 Montana court ruling that enforced that state’s anti-corruption election finance laws in seeming opposition to the federal mandate.
The Court still has three options: 1) a summary reversal, 2) accepting the case for a full hearing later this year, or 3) refusing jurisdiction to make any decision about the case at all, in which event Montana would win immediately and their state laws would stand and Citizens Unitedwould be effectively reversed.
Sunday: SCOTUS Term Snapshot:
|Merits cases granted||76|
Saturday: Don't Bet Against Obamacare? Think Again. As of Friday, bettors at intrade.com, a site which allows users to speculate on the outcome of world events, were projecting a 75% chance that the Supreme Court overturns the individual mandate by the end of the year.
How Will Markets React? If Obamacare is overturned, expect markets to react positively. Generally speaking, stocks should benefit if parts or all of the Act are overturned. CNBC's Jim Cramer has previously stated that, "if Obamacare goes down, you can raise almost every company's estimates for 2013 -- if it is approved I am slashing my numbers." Given different potential outcomes, however, there will be winners and losers in the sector. Traders who do their homework should be able to find some opportunities next week.
Thursday RULED: Union must give fee increase notice... (Wisconsin/ Scott Walker-oriented): “The majority thus decides, for the very first time, that the First Amendment does require an opt-in system in some circumstances [for union dues]: the levying of a special assessment or dues increase.”
F WORD: FOX WINS OVER FCC... Court strikes down FCC policy regulating curse words on broadcast television...
Thursday, 10:40 am: Monday will also potentially be the day we hear about whether the Court will hear the Citizens United follow-up on from Montana. This will also be a critical case.
Thursday, 10:31 am: The Court only has five opinions left to release. Opinion days are now currently set for Monday and Thursday or next week, but we're hearing that there could be a third day. Monday is the last day of the session, though.
There is no deadline for deciding cases. They could sit on a decision for 20 years, theoretically. It may be held over until the next session (but it wont happen with health care or Arizona). Usually its only done to help align very complicated dissents/concurrences, i.e. if there are like 6 opinions in one case, to make sure everyone gets their piece right.
Thursday, 10:26 am: Interetsing, the Court may, add an additional opinion day next week, aside from Monday and Thursday.
How do we know when the last decision is announced? Depending on who the judge is, that may be it (goes in order of reverse seniority), in terms of who authored an opinion. The opinions are revealed from youngest judge to older judge. So in Breyers case, Thomas, Scalia, Kennedy, and the Chief Justice (by default) are all older, so we can get opinions from any of them.
Thursday, 10:20 am: No Arizona or Obamacare Ruling Today:
We have the opinion in Dorsey and Hill, the Fair Sentencing Act cases. That's the final decision of the day.
Thursday, 10:16 am: Where's the Third Case? PM legal expert Mark Kogan exlains: The delay depends on the length fo the summary, and judges read from the bench. If its short and sweet, its easy. Someties judges read full dissents from the bench, which takes longer. Breyer is reading dissent, hence the delay. It all depends on the length of the dissent and how much he wants to read of it.
The Court rules that the case is not moot, first. It then rules on the merits: the union's treatment of nonmembers who had opted out when they got notice of the dues ran afoul of the First Amendment.
Thursday, 10:01 am: The first opinion of the day is in Southern Union
Southern Union was about whether a jury needed to find facts leading to the imposition of a higher criminal fine.
Justice Sotomayor has opinion. The rule of Apprendi v. NJ applies to the imposition of criminal fines. The First Circuit is reversed. The vote is 6-3.
Thursday 9:59 am: SCOTUS decision imminent.
Thursday 9:50 am: 4 Things to Watch For in the Supreme Court Announcement
From PolicyMicPundit Adam Jutha: The Supreme Court is gearing up to make its decision on the legality of the Affordable Care Act (better known as Obamacare), which means the next five days in the world of health policy will be exciting. The ruling could come as soon as this Thursday, although many predict the announcement will be made next Monday, on June 25. Either way
get ready for hundreds of editorials, hours of TV news coverage, and millions of predictions about the decision's impact on the 2012 elections.
President Obama signed Obamacare into law in March 2010, and two years later – three months ago – the Supreme Court began hearing oral arguments about the law’s constitutionality. It has been quite the saga, gripping national media outlets and the general public.
Here are the four issues the Court is likely to issue a decision about, along with the possible outcomes:
1) Does the Anti-Injunction Act (AIA) prohibit states from challenging the individual mandate?
These are technicalities. Lawsuits are not allowed to challenge a tax before the tax has been paid. Note that Obamacare strategically uses the word “penalty,” instead of imposing a “tax,” to outline the consequences for Americans who do not buy health insurance.
Possible Outcome #1: AIA does not allow the questioning of the individual mandate’s constitutionality and the mandate would be implemented in 2014. In the future, an American who refuses to purchase health insurance and is forced to pay a penalty in 2015 could still raise another lawsuit.
Possible Outcome #2: AIA does not apply and the Court can move on to other issues (individual mandate and severability).
2) Is the individual mandate unconstitutional?
This is the most contentious issue in the ruling that many argue is essential to uphold the rest of Obamacare. The mandate requires every American to purchase health insurance or pay a penalty. This is where the currently uninsured 49.9 million Americans (16.3%) could see change.
Possible Outcome 1: Court upholds individual mandate as constitutional and requires every American to have a government-approved health insurance plan (social insurance, employer-sponsored or health exchange programs).
Possible Outcome 2: Court strikes down individual mandate as unconstitutional and moves on to determine if mandate can be severed from the rest of the law (i.e. can other parts of law still be upheld without mandate).
3) If unconstitutional, can the individual mandate be severed from the rest of the law?
The question is whether or not Obamacare can still operate as an effective law without the individual mandate. Many critics, including the Heritage Foundation, claim the two are so intertwined that they can’t be separated. The Obama administration and the Eleventh Circuitmaintain the mandate is severable.
Possible Outcome 1: The mandate is severable from the rest of the law. Americans will not be required to purchase health insurance and will not face penalties.
Possible Outcome 2: The mandate is NOT severable and the Court, having struck down the individual mandate as unconstitutional, also wipes out the rest of Obamacare. If this happens, the country is essentially right back where it started and will need to restart discussions on health care reform.
4) Can Congress require states to comply with the expansion of Medicaid?
Obamacare requires an increase in Medicaid coverage to 133% of the Federal Poverty Line to provide greater access to social insurance coverage for Americans. The debate remains as to whether the federal government can require such increases from states or remove all their Medicaid funding.
Possible Outcome 1: The federal government can require states to comply with new Medicaid expansion provisions or lose all Medicaid funding. This would help an additional 15 million Americans who would have otherwise not qualified for coverage by 2019.
Possible Outcome 2: The federal government can NOT require states to comply, therefore allowing states to manage and determine benefits for the program tailored to their demographics.
The Supreme Court has a big decision ahead that will, either way, change the landscape of health care in the United States.
Thursday, 9:30 am: Expect a decision to be announced shortly after 10 a.m.
But will the decision actually be handed down today? Nobody knows. It could be handed down on Monday (most experts say that's the most likely). Or next Thursday. Or possibly in July.
Heck, it could even be held until next year.
Here's the kicker, though: the decision has already been made. The Justices have already made up their mind, voted, and decided (they probably did that back in May). They only needed this long to write their opinions on the matter, and to go through those opinions with a fine-toothed comb.
This isn't the only high-profile decision the Court will be releasing, though; SB 1070 -- Arizona's controversial immigration legislation -- is also being decided. But will both massive decisions come on the same day?
Thursday 7 am: There remains a great deal of uncertainty about when the Court will issue its ruling. It could be Thursday, Monday, next Thursday, or even later. Why the uncertainty? The Tucson Citizen has a great roundup of the Supreme Court decision making process:
1) On March 26-28, the Obamacare case was argued before the Court. The nine justices then gathered behind closed doors, without clerks or staff, to discuss the case. The Justices go around the room and state which way they are leaning.
2) Once they declare how they stand, the most senior justice on the majority side assigns one of the justices to write the opinion. The senior justice could assign the task to him or herself or choose someone else.
3) That justice then writes a draft opinion, and staff members circulate the draft to the other justices, who respond by memo suggesting changes and indicating whether they still will join the opinion. Justices may switch sides during this time.
4) Once satisfied with the majority opinion, justices on the dissenting side write their opinion.
5) The Court then releases its opinions on scheduled days, but gives no hints as to which opinions will come on which days, not even to the parties involved in the lawsuits. “At the Supreme Court, those who know don’t talk and those who talk don’t know,” Justice Ruth Bader Ginsburg said last week in a speech to the American Constitution Society.
Thursday 6:45 am: How are markets responding to the Supreme Court decision? The Court's ruling will shift billions across the healthcare industry and among its investors. The Daily Beast reports that Wall Street believes that the individual mandate, if not the entire law, will be struck down. According to Michael Gregory, manager of two healthcare funds, “The market is pricing a 60% to 70% likelihood of the mandate being struck down.”
Wednesday, 4:30 pm: Former SCOTUS clerks make new round of health care predictions, majority now think mandate doomed.
Wednesday, 1 pm: A recent poll of Supreme Court experts finds that most expect the Court to strike down the individual mandate.
Background and Odds, from PolicyMic Legal Expert Mark Kogan:
What Are We Arguing About Here?
There are four questions before the Court. The two big ones ask first, whether the individual mandate, which requires all Americans to purchase health insurance, is constitutional and, second, if it is unconstitutional, whether it is severable from the Affordable Care Act. The Court’s decision will have a variety of effects, ranging from the implementation of the law, to the costs of repealing the law, and especially on the rhetoric surrounding the November elections. Conservatives believe that the individual mandate is an unconstitutional government overreach and that the whole law should fall with it. Liberals believe that the uniqueness of the health care market justifies this government action and that even if the mandate were to fall, the rest of the law should be left alone.
Potential Outcomes: Individual Mandate is Constitutional
Most legal scholars expect the individual mandate to be upheld. If the Court hands down a decision declaring the mandate constitutional, the Affordable Care Act will continue to be implemented until its full official roll-out in 2014. This outcome, just like its alternative, is guaranteed to be a closely split decision and the scope and breadth of the conclusion will depend on the opinion. Some legal scholars have speculated that if the Court gets a 5-4 majority to uphold, Chief Justice Roberts may switch to the majority in order to be able to write the opinion and tailor it more narrowly, resulting in a 6-3 outcome.
Individual Mandate is Unconstitutional But Severable
This outcome would mean that the individual mandate itself would be declared unconstitutional, but the rest of the Affordable Care Act would be left alone. Depending on how this decision is written, this could prove very problematic for the Obama administration as it would remove the primary source of revenue without removing the functions that depend on said revenue. This would force the administration to ask Congress for a reform or partial repeal, w