Tuesday, November 22, 2011

The Broccoli Test

Dear Madame L,

I'm worried about the Supreme Court deciding to decide the constitutionality of so-called Obamacare, the law passed by Congress in 2010 that mandates health insurance.

The current court is very conservative, and two members of it have accepted payments to speak to super-conservative groups which are fighting Obamacare. Since they don't have to recuse themselves, as judges in lower courts do, and since they seem to be taking every opportunity to restrict individual rights and increase powers of corporations and those who are already wealthy, what will they do to my health insurance?

Sincerely,

Worried for Future Health Insurance


Dear Worried,

Madame L feels your pain and has no solution to your worry.

Madame L has heard progressives argue that justices Thomas and Scalia should recuse themselves because of conflicts of interest; and conservatives argue that Justice Elena Kagan should recuse herself for the same reason. She has read that Republican presidential candidates are crowing over the supposed certainty that the Supreme Court will strike down the legislation. Yet, unlike progressive and conservative pundits and Republican presidential candidates, Madame L has not the power of seeing the future.

However, she's keeping up on the issue and has recently read one opinion piece that she hopes will encourage you: The Broccoli Test, by Harvard law professor Einer Elhauge. He argues that the court will base its decision on the Commerce Clause as well as the fact that people are required to be covered by Medicare. 

Madame L will try to keep you and all her Dear (and Gentle) Readers posted as she becomes aware of more opinions on the court's expected ruling on health care.

By the way, Madame L prefers to call this legislation the Patient Protection and Affordable Care Act, passed by Congress in 2010 and signed into law by President Obama onMarch 23, 2010, rather than Obamacare.

As always, you can find more information on Wikipedia about this program than Madame L can ever provide.

Best wishes,

Madame L

1 comment:

Jeff said...

How is the individual mandate in Obamacare different from the individual mandate in Medicare? We've somehow lived with this for ~20 years now. If the Supremes throw out the individual mandate, they will have to throw out Medicare at the same time to be consistent.

Somehow, I don't think EITHER is going to get thrown out.
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