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AP on Individual Mandate: Those Dumb Supremes Don't Understand

Tom Blumer's picture

At the Associated Press, aka the Administration's Press, Ricardo Alonso-Zaldivar is floating the notion (saved here at host for future reference, fair use and discussion purposes) that members of the Supreme Court who seem inclined to strike down ObamaCare might do so without fully understanding it. Translation: Those dummies.

The AP reporter makes a claim which reads like a desperate talking point from Team Obama (and maybe it is). The essence of the "argument" is that if you have a required minimum plan design which includes many items individuals and families would never use and would never buy if left to their own devices, and you force them to purchase a health insurance policy with that design (or possibly better), it really isn't a bad thing any more if you allow some choice in copays and deductibles. 

Of course, Alonso-Zaldivar was able to quickly find several people to back up his assertion that certain of the Supremes might be "misunderstanding" the situation, while almost completely avoiding the core Commerce Clause-violating idea that not buying is not an option. Excerpts follow (bolds, including the four bolded words -- "that may be true" which nuke the asinine argument being made, are mine):

Supreme Court misunderstanding on health overhaul?

A possible misunderstanding about President Barack Obama's health care overhaul could cloud Supreme Court deliberations on its fate, leaving the impression that the law's insurance requirement is more onerous than it actually is.

During the recent oral arguments some of the justices and the lawyers appearing before them seemed to be under the impression that the law does not allow most consumers to buy low-cost, stripped-down insurance to satisfy its controversial coverage requirement.

In fact, the law provides for a cheaper "bronze" plan that is broadly similar to today's so-called catastrophic coverage policies for individuals, several insurance experts said.

"I think there is confusion," said Paul Keckley, health research chief for Deloitte, a major benefits consultant. "I found myself wondering how much they understood the Affordable Care Act. Several times the questions led me to wonder how much (the justices') clerks had gone back into the law in advance of the arguments."

Monthly premiums for the bronze plan would be lower, and it would cover a much smaller share of medical expenses than a typical employer plan.

... The scope of the mandate was one of several key issues argued before the court.

"If I understand the law, the policies that you're requiring people to purchase ... must contain provision for maternity and newborn care, pediatric services and substance use treatment," said Chief Justice John Roberts. "It seems to me that you cannot say that everybody is going to need ... substance use treatment or pediatric services, and yet that is part of what you require them to purchase."

That may be true, but the law's bronze plan isn't exactly robust coverage. It would require policyholders to spend thousands of dollars of their own money before insurance kicks in. That's how catastrophic coverage works now.

... On the surface, the minimum benefits requirement does seem to mandate comprehensive coverage. But another provision of the law works in the opposite direction, and the two have to be weighed together.

Seriously, Ricardo, your "that may be true" concession shows that Roberts completely understands the fundamental issue of the mandate, which is whether it should exist, not what its scope might be. The fact that there are different deductibles and copays in a so-called "bronze" plan really isn't relevant if the mandate can't exist under the Constitution in the first place. And no, the two items you raise (mandated comprehensive coverage, and there's no "seems" about it -- just try not buying at all -- vs. a mixture of possible deductibles and copays) do not "have to be weighed together." You only worry about the latter if you get past the former. Based on their questions and concerns, it looks like the justices involved never got past the former. Therefore, they don't need to think about the latter.

This doesn't have a flippin' thing to do with "misunderstanding." What it seems to relate to is another cowardly attack on the credibility and authority of the Court, for which Ricardo Alonso-Zaldivar is dutifully carrying the water.

At the very end, AP quotes a National Federation for Independent Business spokesperson who gets it right:

(Michael) Carvin says he stands by his statement in court that the law prohibits anyone over 30 from buying any kind of catastrophic insurance.

"The bronze plan is not catastrophic coverage," said Carvin, who represents the National Federation of Independent Business.

"It's got all the minimum essential benefits in it," he added. "It's got to have wellness, preventive, contraceptives — all kinds of things a 30-year old would never need. It's not remotely catastrophic."

What it represents is a government requirement to buy insurance you may not want or need. The AP and its reporter never even made it clear that the fundamental and overriding issue in ObamaCare's "insurance requirement" is whether the requirement itself in any form is constitutional.

Cross-posted at


#1 If Obamacare passes

You can next see this administration requiring people who walk into Chevy dealers to buy Chevy Volts.
No matter what car they walked in there to buy.
After all, it's for the good of the country.

Americans keeping their own earnings is a Civil Right! Demand your Civil Rights!

#2 I can't wait to hear what

I can't wait to hear what these Schmucks have to say if the Supremes OK this!

#3 Are you rooting for the camel's nose???

You mean if the Supremes screw up and okay this. If that happens, then this would be the beginning of the government mandate gone wild.

Soon the feds will mail (or email) you your weekly grocery shopping list. After all, in some small way, everything you purchase affects the economic health of the universe. By mandating you buy what is on the fed's list, they can control the flow of money in the economy. If they can do this to the medical industry, what's to stop them from demanding we all buy organic produce to try and save that industry?

BTW Remember the e.coli outbreak in Germany that was traced to cucumbers? They were organically grown cucumbers. How about that?

"I find that I am deeply offended by political correctness." IdahoAndy


#4 Alonso-Zaldivar seems to

Alonso-Zaldivar seems to think that Roberts accepts the premise of the government's argument just because he asked a few questions about what may or may not be useful coverage to different people.

AP ought to get someone who has some basic understanding of how legal arguments work to avoid publishing embarrassingly naive pieces like this.

#5 AP does NOT care...

The brightest light at AP thinks that Alonso-Zaldivar is a brilliant legal mind... The rest have trouble finding their way to the head so they pee their shoes...

We must fight to win every battle for liberty... The enemy needs only win once!

#6 Isn't AP arguing oranges?

This debate is about apples -- whether the constitution gives the government the power to force citizens to buy something or anything. The AP, along with the administration and the New York Times, argues oranges - that if the policy is a good idea, it must be constitutional.

But even if a the policy or law required a small thing - that every citizen purchase a single magic pill, through the use of which disease would be eliminated, but they only work if everyone purchased one -- it would still be unconstitutional for the federal government to require the purchase of the magic pill.

On a separate bone: I've ready maybe 150 articles on the supreme court debate by supporters and critics of Obamacare. Not once do I remember reading any article actually quoting the commerce clause of the constitution. Nunca.

Here is is, for pundits without web access: Congress shall have power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Hard to see how you get from there to making us buy health insurance . . . or a Chevy Volt, which I imagine is next on Dear Leader's wish list.

The Grooter


Send us a shopping list? Why don't they just take all our pays to begin with and send all equal and pre-determined rations! After all, isn't that what our beloved President and Commander-In-Chief wants? To spread the wealth? To get rid of income inequality? It would ensure that everyone is fed, you know, as long as your freinds witht he ruling party......

#8 They almost did!

A couple of years ago the IRS generated an internal report that championed a plan to have all US income go the the IRS first. The IRS would do any and all withholding and send the residue to the payees. It was their way of dealing with tax cheats.

Guess what? The plan was summarily rejected by IRS management.

Can you imagine if the plan went into effect and the system broke down for a spell? How long can you go without your paycheck?

"I find that I am deeply offended by political correctness." IdahoAndy


#9 Alonso-Zaldivar is full of something that rhymes with "it".

The stupidity of his observation lies in the very premise behind the health care "reform", notably that physicians are told which tests we can and cannot order, what insurance companies must pay for on a first-dollar basis as "preventative" medicine (a definition which can shift faster than a Nascar driver) and the sheer economics of dumping almost 40 million uninsured patients into an already overworked system.

The central premise, being that the justices don't understand the legislation, is as incredulous as A-Z saying that he knows more about it than they do. They are the pinnacle of legal understanding in the country (as our constitution defines), and are in a far better place than a half-wit journalist to understand the constitutional implications of the mandate and of the other parts of the legislation that dictate medical practice.

#10 i saw this headline at my homepage (toshiba)

when i saw that it was an ap story, i disregarded its content. think about it - who knows more about constitutional law and how to interpret the constitution: nine justices who have to rule on it in their daily job, and have done so for 15 plus years, or some group-think windbags desperate to get their guy reelected?

i now have a new homepage.

swing hard in case you hit it.

#11 If Obama Care gets the boot...

Conservatives need to propose ways to reduce the costs/use associated with health care. The biggest drain on our heath care system is people utilizing free services they can't pay for. I could argue about the laws that require emergency rooms to cover people who can't afford service, but given that reality, the use of those facilities for non-essential care needs to be eliminated.

People who utilize health care services, and can't afford to pay for those services, should be required to reimburse the provider with some form of work-in-kind.  They shouldn't be expected to pay the $1,500 bill for showing up to get their temperature taken.  But they should be required to do some sort of work to compensate the provider of the services.  Give the users a crazy dollar per hour equivalent.  Say it's $100 per hour.  So in the above example, they would work for 15 hours.  If they don't show up to work, then take away their Earned Income Credit or some other government give-a-way.

This would make the bulk of the people showing up for non-essential services at ERs think twice.  It's not a perfect solution.  But in a realm where few actual solutions are put forward, it's a start.


"You can’t go take a trip to Las Vegas...on the taxpayer’s dime." Barack Obama

#12 Ah, the old "I am smarter than the Supreme Court" gambit

Sorry, Ricardo, you aren't. You haven't stumbled across an angle or nuance they haven't already seen. They are nine very smart, well educated jurists, and they are supported by smart staff, clerks, and others. AND the litigants themselves are pretty smart, too.

This is like thinking you discovered a new prime number or solved Riemann's Hypothesis or unearthed the key to Linear A script.

Okay, maybe that's hyperbole, but speculating that they didn't understand the law, as Keckley says, isn't a high probability, especially on such an important law. (Unless that "bronze" plan was hiding in the penumbras, eh?)

#13 The Wickard v. Filburn decision was at least

The Wickard v. Filburn decision was at least Congress trying to act in the interest of commerce. They were regulating commerce--for the purpose of regulating commerce. Notice how the precedent of saying how much wheat you can grow on your own property, for your own consumption is now taken as "Congress regulated that, it can regulate anything in its regard to commerce".

The whole "Healthcare is special" argument relies upon a distinction that I can trust no liberal to follow once established. It could have been argued that Congress was exercising it regulation of commerce in keeping crop prices high through forced scarcity. But, now, they interpret that basically commerce is Congress' turf and they have the right to leverage that to control anything that has a commerce effect.

So now "solving the healthcare crisis" (a partisan political slogan for something that may do no such thing) because it requires money--which is commerce, and participation, because that's commerce, would be possible in the commercial dimension, simply because instead of arguing Congress' power to control commerce, we're arguing about Congressional control over commerce being used to "solve national problems".

So again, we've walked as far as taking a decision that was about regulating commerce, and because it had an impact on personal decisions to taking for granted that Congress can affect personal decisions as long as dollar bills as commerce are involved. To believe that we could walk this far, but the individual mandate will only ever be used for the singular "healthcare" kind of ignores the automatic extension that seems to happen once Congress crosses a threshold.

If the federal junkies couldn't stop at simply affecting commerce, what makes you think that they're going to stop with a Senate-originated bill that raises revenue?!?!?

What decision and opinion of the court in the past 50 years gives anyone the confidence that this is true?!?!?!

#14 Uh ...

Kelo v. City of New Haven?

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