Toobin: 'This Law Looks Like It's Going To Be Struck Down'

[NRaleighLiberal]

http://livewire.talkingpointsmemo.com/entries/toobin-this-law-looks-like-its-going-to?ref=fpb

"CNN Legal Analyst Jeffrey Toobin, following Supreme Court arguments on President Obama's health care law, said on CNN that based on what he heard inside the Court, things didn't look good for proponents of the law.

"This was a train wreck for the Obama administration," he said. "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... if I had to bet today I would bet that this court is going to strike down the individual mandate."

Toobin added that he felt that U.S. Solicitor General David Verrilli simply wasn't prepared for the conservative justices.

"I don't know why he had a bad day," he said. "He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices."

___________snip_____________

I don't like this. At all.

[DJ13]

1. Rework the law by replacing mandates with a tax

Problem solved.

And yes, Im aware that the GOP wont vote for it, but its the only thing left to do (outside of expanding Medicare) as a response.

[aquart]

22. If it is a tax paid to the gov't, WE HAVE SINGLE PAYER, don't we?

Gosh, that would be awful.

[DJ13]

25. I wish

[chelsea0011]

2. If this does happen, is there any spill over effect for other laws?

Are insurance mandates in trouble. Does the MA mandate on health have a problem? I just can't understand the state/federal differences to allow states to do what the federal government won't allow. Romney always talks up his signing the haelth care bill in MA by saying it was good for the state, but Obama's plan is bad for the federal government.

[Selatius]

3. That depends on how the justices rule, whether it's narrow or overly broad in scope.

They could easily say it is a states' rights issue and that the federal government has no part in mandating individuals to purchase private health insurance policies except state legislatures. On the other hand, they could categorically deny the entire notion of the fed or state governments mandating the purchase of private health insurance policies, in which case Massachusetts' own Romneycare would be eliminated in the same blow.

[former9thward]

5. The MA law is governed by the state Constitution.

Two separate constitutions so there can be different results at the state and federal level.

[mainer]

4. If it is struck down, the only alternative is Medicare for all

Since Medicare, apparently, is legal.

I'm suddenly thinking .... hm, is Obama smarter than all of us combined? Maybe this was in his game plan all along, to back us into single-payer health care?

[nadinbrzezinski]

6. Not the tenth level super duper chess player

again, please.

[stevenleser]

8. Ugh, the multilevel chess joke again?

Come on Nadin, you're better than that.

[Marr]

15. It's an often-used description because it's an often-used kind of rhetoric.

Unless you're actually defending the idea that the Obama Administration built it's first term around a piece of legislation that they knew was unconstitutional, and once stricken down would magically build a path to success.

[stevenleser]

17. It's a joke that has been told at least 1000 times on DU. Like any joke, its pretty old after that

many retellings.

No, I am not defending the idea that the Obama administration was using subterfuge in this case. But I am also not ruling out the idea that they might use misdirection in the future. Will any suggestion of that result in more repetitions of that stale joke?

[nadinbrzezinski]

19. That is what the person meant

Sorry if that bothers you...but some folks are still pushing that he is brighter than all of us rethoric.

[stevenleser]

21. And you have to tell the same joke to convey your disagreement? nt

[nadinbrzezinski]

23. Whatever dude

Your problem.

[stevenleser]

24. Perhaps. Maybe other people appreciate the same joke the 1011th time, especially those

whose minds you are trying to change. Somehow, I doubt it.

[WCGreen]

64. Hey sitcoms last for years with variations on the same joke....

[EFerrari]

29. Do you need four posts to disagree with nadin's use of a common figure?

Really?

[stevenleser]

31. I cant respond to responses to me? Sorry, that doesnt work and isnt compelling.

I dont respond to calls to shut up.

[EFerrari]

45. Holy double standard, batman. nt

[stevenleser]

46. I agree, you dont complain about a joke being told 1000 times, but I cant respond to people

[EFerrari]

48. False in both parts. n/t

[zappaman]

37. +1 Exactly. nt

[CTyankee]

12. Ah, the "Obama the 3D Chess Player" posts here back in early 09! I remember them fondly...

we Dems were all in "honeymoon" mode...

[stevenleser]

7. Not a chance. See my thoughts here...

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=478394

[BlueDemKev]

10. Dream On....

....Medicare for All will never happen in the United States, and Obama's presidency is OVER if the Supreme Court strikes down his signature achievement.

[SpencerShay]

13. YOU dream on.

President Obama's presidency is not "over" if the Supreme Court strikes down the healthcare law.

[BlueDemKev]

44. Look, I hope I'm wrong, but I doubt that I am.

[mainer]

33. All I'm saying is that Obama has one last chess move after this.

If SCOTUS takes away the individual mandate, then Obamacare fails entirely.

And Obama has no choice but to propose Medicare for all.

Now, this is problematic for the GOP, because the nation is familiar with Medicare. We see how much it's treasured by seniors. We appreciate it as it takes care of our parents. We know that seniors are happy with it. It has already been branded and approved.

Obama can say: "the GOP wouldn't let me give you health care using my proposal. So this is our last chance. It's our only chance. Don't you all want Medicare, yes or no?"

Attack it, and the GOP is attacking a treasured government-run program that millions rely upon.

[BlueDemKev]

34. And the answer to Obama's question will be.....

...a resounding "NO!" The American people got their panties in a wad about the federal government "forcing" them to take responsibility and buy their own health insurance coverage, you think they'll agree to the federal government running the entire health care system?

If the Supreme Court strikes down the Affordable Care Act (or essentially guts it by ruling the "individual mandate" is unconstitutional), Obama will definitely lose in November. His signature (and perhaps his only) achievement will be gone and he'll look like a complete failure as a president.

[mainer]

36. And the lack of health coverage can then all be laid at the GOP's feet.

Obama tried. The GOP screwed the country instead.

[BlueDemKev]

38. Like that's going to matter

American people have always blamed the GOP for the high number of uninsured people, but whenever the Democrats try to rectify the situation, the GOP screams "GOVERNMENT TYRANNY!!!", and the American people cringe!!

[mainer]

40. Well, for the sake of the country, I do hope you're wrong.

And I admit, I'm looking at it from my liberal New England bubble.

I just returned from a business trip to the Netherlands, where they all asked me "what's WRONG with you people over there?"

[BlueDemKev]

43. I hope I'm wrong, also but......

....I don't think I am. And yeah, I get the same feedback from Europeans and Canadians also. Sometimes I ask myself the same questions...."what is wrong with our society?"

[sadbear]

41. And he's going to lose to Romney?

The architect of Obamacare?

[stevenleser]

47. Thats the other variable here that might mitigate the damage. How does Romney press this

advantage?

[jzodda]

14. Impossible

Unless we keep the Presidency and retake the house. The House as its currently constituted will never go for a public option.

The Senate would probably have to go nuclear to get to 60 votes as well, and thats assuming we keep that body in Dem hands.

[aquart]

27. A vote for ANY Republican is a vote against ALL women.

How men think, God knows.

Do they want Rich Boy to win?

White Rich vs Black Poor in Comparison? I dunno.

But we need to spell out what Ryan's budget will do to things like tornado aid, too.

[Bandit]

16. And just how would you propose it would get by the Republican Senate.

Remember in this new day and age ANYTHING take sixty votes to get by in the Senate.. Democrats do not have sixty votes PERIOD..

[SidDithers]

42. No, another option is to let millions of Americans go without coverage...

Which option do you think Republicans will choose?

Sid

[budkin]

56. No, it's that less people will have health insurance

[RBInMaine]

61. Who will pass that?

[ProSense]

9. TPM:

I just instant messaged briefly with Sahil Kaupr, our reporter on the scene, and he was more circumspect than Toobin, agreeing that the administration was subject to tough questioning, but noting that a clear majority bloc has not emerged yet to strike down the law.

http://talkingpointsmemo.com/archives/2012/03/big_news_from_scotus.php?ref=fpblg

[NRaleighLiberal]

18. Fingers crossed - thanks for posting that. This is going to take months to play out, I think.

I remain optimistic that it will be upheld.

[BlueDemKev]

35. I wish I shared your optimism...

...but it looks like the "five fraternity brothers" are sticking together again, just like they did in Citizens United.

We are paying a severe price for all of the presidential elections we've blown over the past three decades.

[sinkingfeeling]

11. Duh, has he bothered to look at this Supreme Court's recent decisions?

[spanone]

20. toobin knows shit.....nobody will know anything until june.

[a kennedy]

26. CNN Legal Analyst Jeffrey Toobin

So who is this guy anyway??? and it's just his opinion. I'm listening to the transcript now, and I think he's doing ok.

[underpants]

52. Actually he is very sharp

He wrote a great book on the Supreme Court called "The Nine" - I didn't finish it, heavy read

His first book "Opening Arguments" is a GREAT read. His first job out of lawschool was on LAwrence Walsh's special prosecution of Oliver North. The view from the inside makes it look like more of a fix than the view from the outside.

These statements by him worry me.

[kenny blankenship]

28. I wasn't there, but I do not believe it.

Republicans are 100% about the corporate cash and corporate control. This "reform" cements corporate control over the destiny of every American body, from cradle to grave and mandates corporate profits & subsidies from here to eternity. What can't be squeezed from low income Americans anymore will be squeezed from middle income Americans. The eventual destruction of Medicare is predicated on the ACA "reform" as a blueprint. (The same RW shitheads who thought up the Individual Mandate for your asses also planned for the Individual Retirement and Medical Savings Account to take the place of Social Security and Medicare.) The SCOTUS Repukes may heap a lot of scorn on it with their questions and comments, but in the end the DOLLAR RULES.

[stevenleser]

32. Helping 1 group of corporations doesnt trump what they could do with the Presidency

They can help all groups of corporations and make it up to the Health Insurance industry if they hurt Obama by overturning this law and regain the Presidency. Then they can help the oil and gas industry, they can overturn all kinds of pollution regulations for petrochemical industries, they can initiate tons of additional defense spending and then they can make it up to the insurance industry and big pharma by increased tax breaks for them.

They arent going to give up on hurting Obama here to provide more health insurance customers.

[librechik]

39. absolutely agree

Scalia and gang are pretending to be open minded when in fact they can't wait to hand corporations this bonanza--as limited as it will be, since it will lead to single payer more surely than having no law at all. In place in the law are controls to move to state based single payer, for example. But in the short run SCOTUS will listen only to the insurance cos who are delighted to have a new pool of buyers to soothe the pain of beig forced to actually provide health care to folks.

[girl gone mad]

50. I tend to agree.

This is a corporatist court and they'll gladly carve away at our rights to serve us up to their corporate clients.

[sabrina 1]

62. I agree with you. Why would this Corporate Court strike down a bill that so benefits

Corporations? If they were arguing over the Public Option, that would be a different story. But this Bill saved the Private Ins. Industry. No way it will be struck down. Too much money would be lost to Big Business. This bill gave them access to Public Funds, such as Medicaid funds, they will not take that away from the Corps.

Besides, it's a Republican idea, mandated insurance. And the Repubs on the Court know that.

[Hawkowl]

30. Was there ever any doubt?

The pure fascism of this Supreme Court is absolutely inescapable at this point. The insurance companies like the individual mandate, but they don't like several of the other provisions which limit their profits! That is the real reason this law will be struck down.

Until Supreme Court justices start getting impeached and imprisoned they will continue to rule to enslave the average citizen to the corporation.

[Liberal_Stalwart71]

49. BINGO!!! We have a winner!

I thought that they would stand to gain because insurance companies would be receiving more customers and therefore more money. But now I am convinced that without the mandate, insurance companies will remain free to charge whatever they want. The SCOTUS would have to strike down the entire law, then, because the pre-existing conditions clause and other pro-consumer provisions means that the insurance companies have to pay more. With the law struck down, insurance companies would no longer be obligated to spend 85 cents of every $1.00 on health care services. They will also be able to rescind coverage for anyone that they seem is "too expensive" to cover. And the pre-existing conditions provisions would be undone. Everything that is good about the law would be undone.

Sadly, the Republicans have won. They can run on this issue and really do some damage.

Also, it demonstrates just how important elections are. The voters that were so angry in 2010 are now seeing what happens when they allow their anger to guide their decisions, in this case, either voting Republican or not voting at all.

[TheKentuckian]

55. Perhaps but that isn't sustainable. They won't have enough subscribers to maintain or expand profits

The problems are more about no severbility clause in the law and not enough votes to re-write the offending section from penalty to tax.

Betting the house on being able to compel activity in a for profit market was always more than a little foolhardy.

The cartel must have a high participation rate and a shit ton of tax dollars, their model will collapse otherwise.

Your underlying assumption doesn't work, people's dollars are limited and shrinking. There is no unlimited money supply from the consumer to support outcome over any length of time.
If the cartel does as you estimate, it will suicide in less than twenty years. There is only so much to squeeze out and they are not the only ones that want some juice.

We may have a season where the cartel is allowed to "operate across state lines" that props it up a few years where they cut premiums by selling junk with a bunch of cost sharing out of the least regulated states but there will be more horror stories, benefits will go down, and premiums will continue to rise and the whole deal will crash as pools shrink and the profits dry up.

The profitable consumers won't participate. If mine bites too much out of my ass, I'll dump it because I like having a roof over my head, food in my belly, and lights over paying the cartel their bloodmoney for little to nothing in exchange especially when so much of my discretionary income is eaten up that I can't pay the cost sharing, I've had to do it before and I am faaaaarrrr from insurance adverse, usually opting for supplimental polices if possible but whan my premiums got near 20% of my income and the cost sharing didn't match up logically with the take home or typical costs like $65 copays on a $10 hour job.

Young, healthy people will take their chances. Many families will opt to keep a roof over their children's heads and try to get them government coverage, and for now the growing senior segment will be on Medicare.

Where will the money come from for all the big profits? Even the sickest and most afraid of being sick only have so much. This structure is flawed fundementally, it must collapse. Reform to be actual reform must provide a framework to transition from a terminal system rather than a patch that props it up essentially on the full faith and credit of the United States and a virtual draft of its people for the effort as well.

Postponing the pain will then create orders of magnitude greater and more widespread pain but punting down the road a piece takes (they estimate) their and maybe their children's generations fat out of the fire and the grandkids will hopefully have enough accumolated wealth to survive the shit hitting the fan and whatever happens after.

The Wealthcare and Profit Protection Act is a decades old effort by saner and perhaps greedier friends and members of the cartel to keep the "industry" from suicide and prevent systemic reform.

Extrapolate the numbers on the rate of growth, the numbers in the pool, the aging of the population, the income growth of the vast majority of people, and tell much which path is most likely to be profitable over a long period of time.

The contest is strictly between those in it for the long game and those you are looking at the upcoming quarter or maybe a few. The strategic versus the tactical.

Insurance must have high participation from those who need the least care, they need more money than many can pay, and probably need a way to socialize the downside and avoid being on the hook for the most expensive people unless they can work some kind of cost plus big profits deal right out of the treasury.

[Liberal_Stalwart71]

58. Well, from your words to God's ear. I hope that I am indeed wrong and you are right!

[TheKentuckian]

63. Mine is not a pleasent picture, I figure it will be increasingly awful with no shortage

of misery and needless death. I just figure it will be less awful than punting the matter an extra two or three decades down the road and dumping trillions we don't have and all of that personal wealth into the cartel.

We need to get to a sane transition plan the deck is stacked against and the brunt of the systems negatives have not hit most in the electorate, our politicians very dishonest, and our media a cesspool of distration and propaganda the likes of the world has not seen in written times so that will be difficult to pull off until many more do not have coverage and those that do are groaning under the weight, even the fairly well off.

My prayers call for far gentler paths for our people than this one of agony and deaths over a protracted period of time.

[Hawkowl]

59. You are right to a point

There is no long term sustainability. However, American big corporations are no longer in it for the long term. This is 100% in evidence by the obsession on QUARTERLY profits. American management are no better than mafioso looking for the biggest payoff in the shortest time span. Do you really think ceo's and board members give a shit if the well runs dry in 20 years? They will be well on to the next big, fat target for rape and pillage. Yes, I am outraged and cynical, but can you cite any data to bolster your assumption that any American industry is truly interested in long term profits.

[TheKentuckian]

60. That is my expectation. They will destroy themselves.

And will do so virtually no matter what.

The question is who will be holding the bag, how big the fallout is, and what resources will be available to move forward in the aftermath.

[The Second Stone]

51. Striking down the mandate doesn't kill the whole law

and government certainly can regulate insurance companies including how much can be spent on benefits vs administration, although I expect the conservatives to go through hoops to overturn that portion too.

Having argued appellate cases, and countless trial court hearings, a judges questions are not necessarily indicative of how they will rule.

[mainer]

53. Practically speaking, it does.

If no one has to buy insurance, then only the sick will want it. And if only the sick are paying premiums, the whole thing is untenable.

[MadHound]

54. Actually it very well could

First of all, there is the issue of severability. Most laws that are thought to be going to the SC for review have severability clauses, specifically stating that if one part of the law is found to be unconstitutional, the rest of the law still stands. The ACA doesn't have such a severability clause.

Second, if the individual mandate is struck down then there are going to be serious problems with revenue generation. No revenue mechanism, no law.

[budkin]

57. No denial of pre-existing conditions depends on that revenue

Without it it's pretty much dead in the water

[_ed_]

65. Bullshit

Toobin is a camera-hogging pseudo-lawyer-reporter. He has just as much idea what the Court will do as my dog does.

He's just saying what he hopes will happen. This man exemplifies the term "Beltway hack."