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October 26, 2020, 08:00:37 PM

  Talk Elections
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  Constitution and Law (Moderator: True Federalist (진정한 연방 주의자))
  What will happen to Obamacare if ACB is confirmed?
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Question: ...
#1
The Court will rule in favor of retaining all or most of the law and protect people with pre-existing conditions
 
#2
The Court will rule in favor of repealing the law and leaving people with pre-existing conditions unprotected
 
#3
Something else (explain)
 
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Total Voters: 30

Author Topic: What will happen to Obamacare if ACB is confirmed?  (Read 639 times)
Scott🕷️
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« on: October 16, 2020, 12:13:35 PM »

Another important question about the new SCOTUS makeup, this time with a poll. But please explain your reasoning for your vote.
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brucejoel99
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« Reply #1 on: October 16, 2020, 03:10:05 PM »

Based on ACB's testimony & what we saw earlier this year re: severability in Seila Law v. CFPB, the Roberts Court won't be wrecking Obamacare anytime soon. I think we'll get a 5-4 ruling to grant the plaintiffs' standing & find the residual individual mandate unconstitutional (with Thomas, Alito, Gorsuch, Kavanaugh, & ACB in the majority + Roberts, Breyer, Sotomayor, & Kagan dissenting), but 7-2 (with only Thomas & Gorsuch dissenting) that it's severable from the rest of the law.
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politicallefty
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« Reply #2 on: October 17, 2020, 05:50:02 AM »

The Court really shouldn't even be taking this issue up. The standing issue is the most glaring issue here. In essence, the individual mandate is a sternly worded letter from the federal government (or not even that). If the federal government just randomly says to do something and there is no penalty or action at all on an individual, there is no controversy. If I only looked at the appeal itself, which includes a number of states and the House as intervenor-defendants, I would say the case was improvidently granted. But the real issue is that the district court should have never heard the case to begin with and the Fifth Circuit should have ruled accordingly. This case really makes a mockery of the issue of standing if it's heard on the merits, but I expect that it will.

Based on ACB's testimony & what we saw earlier this year re: severability in Seila Law v. CFPB, the Roberts Court won't be wrecking Obamacare anytime soon. I think we'll get a 5-4 ruling to grant the plaintiffs' standing & find the residual individual mandate unconstitutional (with Thomas, Alito, Gorsuch, Kavanaugh, & ACB in the majority + Roberts, Breyer, Sotomayor, & Kagan dissenting), but 7-2 (with only Thomas & Gorsuch dissenting) that it's severable from the rest of the law.

I've been sufficiently persuaded that Kavanaugh will vote for severability, but Alito definitely will not. It will not be 7-2. Alito voted with the dissent in 2012 to strike down the entire law. You're thinking of another Justice that votes in good faith based on objective principles. The closest ideology for Justice Alito that I can think of is "conservative Republican". I did see Barrett's comments on severability. That or Kavanaugh may save most of the law, but it does not mean other portions of the law are safe. I've said before and I still maintain that eliminating the individual mandate will likely take down guaranteed issue and community rating (i.e. protections for preexisting conditions, age, gender, etc.). That will have effectively gutted the Affordable Care Act.
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brucejoel99
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« Reply #3 on: October 17, 2020, 12:47:14 PM »

The Court really shouldn't even be taking this issue up. The standing issue is the most glaring issue here. In essence, the individual mandate is a sternly worded letter from the federal government (or not even that). If the federal government just randomly says to do something and there is no penalty or action at all on an individual, there is no controversy. If I only looked at the appeal itself, which includes a number of states and the House as intervenor-defendants, I would say the case was improvidently granted. But the real issue is that the district court should have never heard the case to begin with and the Fifth Circuit should have ruled accordingly. This case really makes a mockery of the issue of standing if it's heard on the merits, but I expect that it will.

Based on ACB's testimony & what we saw earlier this year re: severability in Seila Law v. CFPB, the Roberts Court won't be wrecking Obamacare anytime soon. I think we'll get a 5-4 ruling to grant the plaintiffs' standing & find the residual individual mandate unconstitutional (with Thomas, Alito, Gorsuch, Kavanaugh, & ACB in the majority + Roberts, Breyer, Sotomayor, & Kagan dissenting), but 7-2 (with only Thomas & Gorsuch dissenting) that it's severable from the rest of the law.

I've been sufficiently persuaded that Kavanaugh will vote for severability, but Alito definitely will not. It will not be 7-2. Alito voted with the dissent in 2012 to strike down the entire law. You're thinking of another Justice that votes in good faith based on objective principles. The closest ideology for Justice Alito that I can think of is "conservative Republican". I did see Barrett's comments on severability. That or Kavanaugh may save most of the law, but it does not mean other portions of the law are safe. I've said before and I still maintain that eliminating the individual mandate will likely take down guaranteed issue and community rating (i.e. protections for preexisting conditions, age, gender, etc.). That will have effectively gutted the Affordable Care Act.

I mean, the ruling wouldn't eliminate the individual mandate so much as find a nominal $0 individual mandate unconstitutional, so all a new Democratic trifecta would have to do in order to totally & completely neuter the ruling is restore the mandate to a non-nominal amount. As for whether or not other portions of the law are safe from future cases, well, I think the Court will be packed under a Biden presidency before a new landmark ACA case can even be heard, & a 7-justice liberal majority on the newly 13-justice Court would obviously ensure that the ACA remains enshrined in law.
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NewYorkExpress
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« Reply #4 on: October 17, 2020, 02:50:32 PM »

5-4 in favor of striking down the entire law (Roberts writes the minority opinion, either Thomas or Alito writes for the majority.)
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RussFeingoldWasRobbed
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« Reply #5 on: October 17, 2020, 03:37:58 PM »

Severability 6-3 Favor(Left+Kavanaugh, Gorsuch, and Roberts)
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President Pericles
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« Reply #6 on: October 18, 2020, 02:48:23 AM »

It would be hilarious if Republicans gave Democrats a big brilliant talking point to hit them with again and again, and then they don't even end up having a chance at getting a gain from the lawsuit.
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The scissors of false economy
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« Reply #7 on: October 19, 2020, 09:53:07 AM »
« Edited: October 19, 2020, 09:56:14 AM by The scissors of false economy »

Severability 6-3 Favor(Left+Kavanaugh, Gorsuch, and Roberts)

Gorsuch straight-up doesn't believe in severability regardless of the legislation in question, and I don't trust ACB as far as I can throw her not to be a lockstep right-wing ideologue. If the Court finds for severability it'll be 5-4 with only Roberts and Kavanaugh joining the liberals.

Whatever the final policy outcome, I'm expecting a messy decision with lots of concurrences in part, dissents in part, possibly a per curiam plurality opinion rather than a real majority decision, etc. The works.
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Vosem
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« Reply #8 on: October 19, 2020, 10:52:42 AM »

Presumably, per the ruling in Seila Law, the specific challenge coming this year will not strike down the law. I imagine the law will be gradually struck down over the course of the next five years or so, though.

It would be hilarious if Republicans gave Democrats a big brilliant talking point to hit them with again and again, and then they don't even end up having a chance at getting a gain from the lawsuit.

It is overwhelming conventional wisdom on the GOP side that campaigning on repealing Obamacare/healthcare policy generally helps them as a party, and it's kind of hard to look at the record of the 2010s elections without suspecting there is something quite substantial to that idea.
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Ichabod
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« Reply #9 on: October 19, 2020, 01:41:31 PM »

Striking down the entire law could be ending, fairly easy, in a quasi-universal health law passed with 51-53 votes in the Senate. Roberts (and Kavanaugh, in some sense) are not dumb and I think they know the risks in an overreaching ruling. So, I think is either ACA survives entirely or without the mandate (and with a Dem WH+Congress, it's the same thing)
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politicallefty
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« Reply #10 on: October 24, 2020, 05:39:33 PM »

I mean, the ruling wouldn't eliminate the individual mandate so much as find a nominal $0 individual mandate unconstitutional, so all a new Democratic trifecta would have to do in order to totally & completely neuter the ruling is restore the mandate to a non-nominal amount. As for whether or not other portions of the law are safe from future cases, well, I think the Court will be packed under a Biden presidency before a new landmark ACA case can even be heard, & a 7-justice liberal majority on the newly 13-justice Court would obviously ensure that the ACA remains enshrined in law.

Maybe it's just me, but I'm still haunted by that dissent in NFIB v. Sebelius. It's like that brush with death you can't quite get out of your mind. The district court ruling struck down the entire law based on the finding that the individual mandate was unconstitutional (apparently finding that a $0 tax is not a tax). However, the dissent in the 2012 case was so petulant that they didn't even concur with Roberts that Congress exceeded its authority under the Commerce Clause. The Fifth Circuit did agree that the individual mandate was unconstitutional. Before the case was expedited to the Supreme Court, the Fifth Circuit did want the district court to explore severability.

I'll leave the issue of expanding the Court to other topics (although I do agree with you in principle). If the ball is back in a friendly Democratic Congress, there are far more options than simply reinstating a nominal tax. Congress can simply strike the individual mandate from the law entirely and amend the text of the ACA itself to include a severability provision to preclude any further nonsense. Guaranteed issue and community rating themselves are valid regulations under the Commerce Clause and only at risk due to the broader context of the law and the statute not including a severability provision. The real problem is that there hasn't been a friendly Congress to revise and amend the law, which is usually quite necessary for such a monumental piece of legislation.

I do have to wonder if Congress will start including severability provisions in more pieces of legislation, especially if you have those on the Court that don't believe in said principle. I do think Justice Gorsuch has his principles and I don't think he could ignore a severability provision written directly into the statute.
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Scott🕷️
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« Reply #11 on: Today at 03:51:42 AM »

Presumably, per the ruling in Seila Law, the specific challenge coming this year will not strike down the law. I imagine the law will be gradually struck down over the course of the next five years or so, though.

It would be hilarious if Republicans gave Democrats a big brilliant talking point to hit them with again and again, and then they don't even end up having a chance at getting a gain from the lawsuit.

It is overwhelming conventional wisdom on the GOP side that campaigning on repealing Obamacare/healthcare policy generally helps them as a party, and it's kind of hard to look at the record of the 2010s elections without suspecting there is something quite substantial to that idea.

It's not the 2010's anymore, friend. Show me the last poll where Republicans were more trusted than Democrats on healthcare. Notice how support for repealing Obamacare started falling the moment Trump took office. Democrats ran on protecting Obamacare (quite a leftward shift from "we'll repeal the bad parts", as seen in previous midterms) and won the House as a result. It was the top issue for a plurality of voters in 2018, and those voters who prioritized healthcare overwhelmingly voted Democratic.

So, I mean, if the Supreme Court wants to kick the hornet nest and keep Democrats in power in perpetuity, they're welcome to repeal Obamacare in addition to Roe. These actions will be corrected when a nice D trifecta either reforms the judiciary or passes a new healthcare bill, which this time would align more with what Bernie and AOC are advocating for than what Obamacare does.
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