WINNERS AND LOSERS

On June 25, 2015 the Supreme Court upheld the provision for subsidies in the Affordable Care Act regardless of whether the insured procured their insurance coverage through their own state exchanges or were forced into the federal exchange as their own state’s demented leadership refused to establish an exchange.

This ruling makes clear the winners and losers in this ongoing battle over trying to legislate the availability of health insurance for millions of Americans previously denied access, whether due to pre-existing conditions or lack of affordability.

WINNER————–Chief Justice John Roberts whose concise, common sense opinion sliced through all the nonsense of those who brought the lawsuit out of spite, not out of genuine concern the law was harmful. Of course that brought the enmity of conservatives, some of whom (okay a really tiny portion of whom) believe the Good Justice was blackmailed or worse.

http://www.theblaze.com/contributions/was-supreme-court-justice-john-roberts-blackmailed/

LOSER—————-Justice Antonin Scalia whose sputtering dissent, with phrasing like “interpretive jiggery-pokery”, reminds one of a pillar of the community found with his pants down in the local whorehouse amongst a bevy of belles but who would have you believe he was about to lead them in prayer.

WINNER————-President Barack Obama whose signature legislative accomplishment has survived yet another insidious but withering attack from the forces of politics, not of righteousness.

LOSERS————-Republican candidates for their party’s Presidential 2016 nomination who collectively and figuratively had pie shoved in their faces as again their predictions for the demise of the ACA were dashed on the rocks of futility with reactions ranging from the ridiculous to the ridiculous, nothing sublime remotely within their capacity to bloviate. Several shared their opinions via Twitter which proves once again twitter is for twits.

The GOP Candidates React to the Supreme Court’s Obamacare Ruling

WINNERS………..American Citizens who now have reason to feel more secure in the knowledge that it is less likely they will face either financial ruin from receiving health care when they are not insured and that the availability of such coverage will inure to their physical and mental benefit…even in terms of saving lives… by being able to obtain treatment. 

Gee, imagine that, a federal law that actually is good for the lives of ordinary people.

Economist Paul Krugman highlights the way the law is working after only two full years of implementation.

……….The Affordable Care Act is now in its second year of full operation; how’s it doing?

The answer is, better than even many supporters realize.

Krugman cites, among other positives,  the expansion of coverage to as many as 15 million Americans,  Also

The newly insured have seen a sharp drop in health-related financial distress, and report a high degree of satisfactionwith their coverage.

Too, instead of a budget buster as the rampaging elephants would have you believe, it has helped in lowering the federal deficit and, if repealed, the deficit would rise again.

Krugman does not deny there are some difficulties, but not insurmountable ones. So long as a number of states refuse to expand Medicaid (placing a huge burden on state and local taxpayers, see http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2015/6/24/not-expanding-medicaid-can-cost-local-taxpayers) millions of the most desperate are still denied coverage.

He further speaks of premiums, which is a contentious issue, no doubt. However, the Commonwealth Fund found that the average increase in premiums for coverage under the ACA from 2014 to 2015 was ZERO.

http://www.commonwealthfund.org/publications/blog/2014/dec/zero-inflation-nationwide-for-marketplace-premiums

Now average does not mean no increases for anyone anywhere. Anecdotal evidence of large premium hikes are plentiful, especially in internet forums. And even the study above reports substantial increases in some states with lower costs in others.

Which brings me to my real point about WINNERS & LOSERS.

So long as health insurance coverage in the United States is in the hands of private, mostly for profit companies, together with the ability of individual states to thwart the purpose of the Affordable Care Act and in light of the vagaries of state laws, insurance regulations, and insurance commissioners, there will be WINNERS and LOSERS in the game of health inusrance coverage and thus health itself.

The health and welfare of our citizens should not be subject to gamesmanship with keeping score a regular and necessary part of it.

This nation needs to wise up and create a system with true universal coverage. This could be achieved through a single payer system as our successful Medicare program could be expanded by making everyone eligible. That is my personal preference.

There are also hybrid systems such as in Australia with mandated coverage for all supported by general revenue taxes, a levy equivalent to our Medicare tax, and private insurance for some.

To me the chief flaw built into the ACA is that it is vulnerable to wanton attacks for purely political purposes, none of which have had either the intent or the ability to actually improve health care coverage in this country.

Of course the saddest part of these attacks is that the assailants simply do not care what harm they cause.

We can acknowledge that no system can be perfect. But our current system, even with the successes of the Affordable Care Act is still far below perfect.

Now, as we adjust to the reality of the ACA it will becvome ever more evident that we have a ways to go.

Let’s make WINNERS of the vast majority of our citizens and consign the LOSERS who oppose a better healthcare coverage system to the back pages of history where they belong.WINNE

HOLDING HANDS—AND MUCH MORE—SOON TO BE LEGAL FOR ALL

The Supreme Court has agreed to hear an appeal from gay couples whose marriages are illegal in some states in the 6th Circuit Court of Appeals. On Friday, January 16, 2015 SCOTUS voted to accept the appeal involving same sex marriage bans in Ohio, Michigan, Tennessee, and Kentucky.

http://www.huffingtonpost.com/2015/01/16/supreme-court-gay-marriage_n_6439926.html

A couple things are surprising about this.

First of all, the decision appealed from, that of the 6th Circuit Court of Appeals, was by a 2-1 majority of a three judge panel. The losing parties could have asked for a review by the Circuit En banc which would have meant a re-hearing before all the judges in the Circuit. Since the two ruling judges were Bush appointees, and since all other Circuits ruling to date have struck down bans, it is very likely the entire court would have reversed.

And since that review was possible it was a little surprising that SCOTUS did not refuse to accept the case until further action by the Circuit judges as a whole.

Although the Supreme Court leans conservative…absurdly so as in Citizens United (which they certainly are not)…it did strike down DOMA in 2013 which action, at least in part, has led to the ensuing decisions in federal courts.

The 6th Circuit decision was premised on the notion that gay marriage should be a matter for legislatures, not courts.

Were that notion to be followed by SCOTUS in this appeal, it would undermine and effectively be a repudiation of Loving v Virginia, the 1967 case that negated state laws against interracial marriage. Recall that marriages between the races were once considered to be as immoral and as contrary to Biblical teachings as some continue to claim gay marriages are today.

Of course any prediction of Supreme Court decisions is fraught with peril for the predictor. And the most harrowing of these potential perils is pure embarrassment at being wrong, no matter the level of legal expertise and knowledge of the inner workings of the Court and the nine Justices. My own level of expertise is surpassed by many observers with far greater experience dealing with the history and nuances of Constitutional Law.

Yet it is difficult to imagine a Supreme Court with the recalcitrant likes of Justices Samuel Alito, Antonin Scalia, and Clarence Thomas being able to stem the tide of history. As we saw in the Affordable Care Act ruling Chief Justice John Roberts abandoned his natural conservative bent to provide the saving vote, albeit in a strange construct claiming the law was entirely within the power of Congress to tax while he, in effect, ignored its power to govern Interstate Commerce.

In a way looking at the ACA as a tax scheme satisfied the conservative base while simultaneously appalling and infuriating that same base by finding that “tax scheme” all huggably legal. Of course the conservative base considers any tax scheme to be the greatest sin perpetrated upon mankind.

Since Justice Anthony Kennedy has been ever more consistently liberal on any case remotely touching upon gay rights adding him to the four Court liberals is not illogical with the chance that Roberts finds a way to come aboard withe the majority.

Somehow 6-3 decisions of the Court sound more persuasive to Americans than does a 5-4 one. But the assumed persuasiveness is questionable given the 7-2 Roe v Wade decision and we know how well that has been embraced. Brown v Board of Education was a unanimous decision but  met both immediate and long term resistance in practicality if not in legal challenges.

Morality aside, there is simply no reason for gay marriage bans to be upheld. Not that I agree that such unions are immoral, but the Supreme Court does not rule on the basis of morality. Thus, we still have the death penalty.

SCOTUS has ruled that laws forbidding gay sex are unconstitutional in Lawrence v Texas. It has ruled that denying gay married couples certain federal benefits in states banning gay marriage is wrong in the DOMA case. It seems inconceivable, as an extension, that it would permit states, in effect, to restrict the interstate movement of couples legally married in one state by disallowing them to enjoy the same marital rights as other couples.

From that point is just a short distance to determining that there is no Constitutional justification to banning consensual adult couples from marrying no matter their gender.

I can just picture Rick Santorum rubbing his hands in glee now that he can fulfill his lust for the family dog.

YOU GOTTA HAVE (NO) HEART

There is a 1950’s Broadway musical called Damn Yankees. It is based on a book by Douglass Wallop titled The Year The Yankees Lost The Pennant.  The premise of that novel is that the perennially hapless Washington Senators (the baseball team not the upper chamber of Congress) are given a new jolt of life when a young player from out of nowhere, Joe Hardy, gives the team a lift as he helps slug them into first place.

Ah, but Joe is really Joe Boyd, a middle-aged fan who once dreamt of starring for his home town team. But the nefarious Mr. Applegate transforms him to Hardy, expecting to collect his soul in the bargain. In the musical the song You Gotta Have Heart is sung by some of the ballplayers in an optimistic paean to the sport that soon becomes reality when Hardy hits his way into their and their fans’ hearts.

Alas Applegate threatens to pull the plug on Hardy and retransform him to ordinary Joe Boyd, depriving the people of their sports salvation.

This musical is, in a sense, being reprised now in Washington, D.C. with a new cast and no musical renditions praising heart and planned legislative action absent any heart at all. The part of Applegate is shared by Charles and David Koch.

You see with the new Republican majority in both Houses,  Congress is certain to renew efforts to repeal the Affordable Care Act. (ACA)(I refuse to use the common name for the law, deeming it derogatory). Absent outright repeal other measures may be utilized to thwart full implementation of the employer mandate or to end or severely limit the funding aspects of the law, effectively emasculating it.

To boot, the non-musical version of The Supremes is contemplating a move that will intervene to remove the repeal stigma from Congress. It has accepted the case of King v Burwell. That litigation is a challenge to the provisions of the law providing federal premium subsidies to some health policy holders based on their income.

Recall that the law established a marketplace for the new plans through exchanges, intended to be operated by the states, but with a federal exchange available should a state not act to set up its own. 36 states chose not to operate their own. Several million Americans therefore purchased policies on the federal exchange with most of them eligible for the premium subsidies.

Some unfortunate language in the law stated, in effect, that the subsidies were available only for policies purchased on state exchanges. Other language clearly demonstrates the intent of Congress to make the subsidies effective regardless of where the coverage purchased.

The Supreme Court will decide whether the narrow language of the law controls, strictly interpreted, or whether the law, and thus the subsidies, will remain as before the challenge. If the former, millions now covered may not be able to afford their insurance without the subsidies.

Now that would not be the total repeal the Republicans in Congress seek, yet it would so undermine the ACA that the delight of GOPers would be palpable.

Obviously full repeal would bring dancing in the streets…no doubt to the strains of You Gotta Have (No)Heart.

But think about it. If millions are left with policies intact but no way to afford them, or the law is repealed in toto, that means millions of people will now be up the creek with health care coverage. A SCOTUS decision against subsidies would mean the paddles would be too expensive and repeal would mean no paddles can be bought at all.

How in the world can either result be good for the United States of America? The Affordable Care Act, despite any imperfections or weaknesses, has enabled approximately ten million citizens to be covered under some health insurance plan that did not previously have that privilege. And having insurance saves lives. That is a concrete positive of the law.

Most importantly ending or severely altering the law will have devastating financial and health consequences for real people, not abstract and wrong headed political philosophies.

I don’t know that statistics have been compiled demonstrating how many lives have been saved due to the ACA, but I do know that there is ample anecdotal evidence of many cases. One is presented here. David Tedrow of Raleigh, N.C. received a life saving liver transplant earlier this year. he had fallen ill in 2010 and, as the disease progressed, finally was unable to work.

http://www.washingtonpost.com/posteverything/wp/2014/11/08/without-obamacare-i-would-have-died-im-scared-the-supreme-court-is-going-to-gut-the-part-that-saved-me/

With lower income he could no longer afford the health coverage he’d had and became uninsured. Then the ACA marketplace opened last year and he signed up. With his subsidy he could afford it. But he is in one of the states without its own exchange and will lose his subsidy if SCOTUS rules wrongly. Of course under repeal he’d have no coverage at all. Remember, one portion of the law requires insurers to cover regardless of pre-existing conditions. If Tedrow losses this policy he will be unlikely to procure another at all, affordable or not.

Simon Maloy of Salon looks at the upcoming Supreme Court decision and expounds on the potential ramifications.

http://www.washingtonpost.com/posteverything/wp/2014/11/08/without-obamacare-i-would-have-died-im-scared-the-supreme-court-is-going-to-gut-the-part-that-saved-me/

Maloy takes another whack at the topic in another piece. In that one he looks at the possible SCOTUS gutting of the ACA as maybe even a negative to the GOP due to the public outcry that may erupt when millions lose insurance.

http://www.salon.com/2014/11/10/scotus_could_roil_the_gop_how_new_threat_to_obamacare_may_backfire_on_the_right/

The Republicans and conservatives who clamor for the elimination of the Affordable Care Act tend to carefully avoid discussing the inevitable results of the law’s demise: exploding health insurance costs, spikes in uninsurance, general chaos in the health insurance market, and the very real chance that people will die. The GOP doesn’t have a plan for what comes after the ACA, they just want it gone, no matter the consequences. If the Supreme Court rules against the government in King v. Burwell, they’d be forced to face down those consequences, and there’s a good chance they won’t like what they see.

As he notes the fix for the subsidies is simple enough…a minor amendment with corrective language clarifying that the subsidies were to apply no matter which exchange the policy was purchased on.

That will be a cold day in hell to see the GOP surrender on this issue.

So from this angle it appears that there is an enormous chance that the Republican chest will be ripped wide open an the vacant cavity where the heart normally is will be exposed for all to see. That is so whether the ACA is repealed or the Supreme Court rules negatively and Congress fails to pass the easy fix.

The only questions is whether the besotted public will finally have enough of their heartlessness.

One can only hope this musical closes in New Haven.

 

 

 

MY OUTRAGE ABOUT BOSTON

I am outraged that anyone, for any reason, would place bombs near the finish line of The Boston Marathon!

I am outraged that these bombs were planted with the obvious intent to kill and maim human beings, no matter the reason behind it!

I am outraged that it took thousands of law enforcement officers from numerous jurisdictions about twenty-four hours to finally capture the second suspect after he and his brother allegedly added an MIT campus officer to the carnage as the suspects still presented danger to the public!

I am outraged that thousands upon thousands of Massachusetts residents were effectively prevented from working, playing, learning, worshiping, or otherwise going about their daily lives as this drama unfolded before them!

I am outraged at the person or persons who commited this atrocious act whether it was the two brothers named as suspects or different people, or people in addition to the two brothers!

I am now outraged that The Justice Department has questioned or plans to question Dzhokhar Tsarnaev without reading him his Miranda Rights!

You, know, the statement presented to criminal suspects informing them that they have a right to be represented by an attorney during questioning because whatever they say may be introduced into evidence against them in court.

The DOJ is invoking the ‘public safety exception” to the Miranda Rule. That is:

The police can interrogate a suspect without offering him the benefit of Miranda if he could have information that’s of urgent concern for public safety.

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/04/dzhokhar_tsarnaev_and_miranda_rights_the_public_safety_exception_and_terrorism.html

So explains Emily Bazelon in her column in Slate.com in which she presents the history of this “public safety exception”. It was established by a Supreme Court ruling in New York v Quarles, (1984) where the interrogation of an arrestee without Miranda Rights was permitted. There the suspect was known to have had a gun but when arrested he had an empty holster, so the possibility existed that harm could come from the gun unless information was obtained immediately.

Then some cases involving alleged terrorists came to light where this public safety exception was invoked. The interrogation of Zacarias Moussaoui was bungled, he being the possible 20th 9/11 killer. He was arrested before 9/11.  FBI agent Coleen Rowley requested guidance as to when the exception applied.

Then Umar Farouk Abdulmutallab, the Christmas day bomber, and Faisal Shahzad, the Times Square bomber, (neither of whom was successful of course) who were first questioned under the exception and then Mirandized. The former quit talking but the latter continued.

After these incidents  Attorney General Eric Holder suggested a law defining the exception be passed but this went nowhere. The DOJ subsequently produced a memo to the FBI (Note to self…when DOJ writes a memo concerning our rights, run for the fucking exits!) that stated:

Agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents,

and then expanded upon that:

…there may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.

The old adage “the exception proves the rule” is both correct and adequate to confirm that the aberrant behavior itself demonstrates that there is a rule to which an exception is being made.

I fear that is one of the instances in which it appears the “exception BECOMES the rule”. Thus it is no longer an exception.

After all, there is no clear standard to determine when the government’s interest outweighs other considerations. Under the memo the DOJ and FBI, no one else, gets to decide.

Bazelon concludes her piece with this.

Whatever the FBI learns will be secret: We won’t know how far the interrogation went. And besides, no one is crying over the rights of the young man who is accused of killing innocent people, helping his brother set off bombs that were loaded to maim, and terrorizing Boston Thursday night and Friday. But the next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.

Ironically this all occurs against the backdrop of the failure of the Senate to pass a bill requiring background checks for gun purchases. Many Senators made their case for rejection claiming the law would be a violation of the 2nd Amendment.

Senator Lindsey Graham said, “I’ve always been confident if the Senate debated the Second Amendment, the Second Amendment would win.”

But this is what he said about Boston, “The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent” Of course Miranda Rights stem from the 5th Amendment.

Two facts stand out about Graham’s equivocation on Constitutional rights. He gets money from gun lobbyists but there are no equivalent 5th Amednments rights groups handing out cash. The Senate vote took place Wednesday. Tuesday night Graham was named Legislator of the Year by a gun rights group.

Why am I…and why should you be…outraged about this?

Because, when the law gets bent out of shape for one person, it’s easier to bend out of shape for the rest of us.

Don’t say I didn’t warn you.

A BRIEF PRIMER ON THE SECOND AMENDMENT

This is not intended as a scholarly or comprehensive work with multiple citations from many many sources. Rather it is designed to lend a basic understanding of what the Second Amendment right to bear arms means from an historical viewpoint prior to our Comstitution, what is contained in the Constitution itself, and the effect of the landmark case of District of Columbia v Heller, 554 US 570, (2008) that clarified, if not broadened the rights of individuals to possess and use firearms.

Let us start from the American Revolution in which the embattled farmers stood against the British Redcoats at Lexington and Concord. These were militias, de facto if not officially blessed by any government. Naturally the men here provided their own weapons as there were not public armories from which weapons could be drawn.

Once the Revolution was in full force, General George Washington commanded a regular Army while militias in several colonies played a critical role.

All this should be essential knowledge for any American and the particular details are of little practical concern here.

Once the war was won the former colonies were bound together by the Articles of Confederation, which soon proved to be pretty inadequate as a mechanism to govern what was one nation.

Eventually a convention was convened in Philadelphia in May 1787 that would lead to the adoption of our Constitution, the basis for our form of government today.

There was much debate among the delegates as to exactly how to either reform the Articles of Confederation, their official assigment, or to create a new form of government which the delegates became determined to do.

Apart from the Convention itself three of our most literate and erudite founding fathers wrote extensively on what criteria should be considered in strengthening the central government. This collection of 85 essays by John Jay, James Madison, and most especially Alexander Hamilton became known as the Federalist Papers.

In no way are these documents an official part of our laws but their importance is considerable in that they reflect much of the thinking and discussion taking place among the delegates who actually created the Constitution. And, of course, James Madison is deemed the father of that document just as Thomas Jefferson is credited with the Declaration of Independence.

It has become very popular and common among conservatives to use the Federalist Papers in support of their notions of the “original intent” of the Founding Fathers in creating the terms of the Constitution, particularly so when trying to limit the government in any way shape or form.

So let us examine the 2nd Amendment in this light.

From Federalist Papers # 29 by Hamilton:

Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. http://thomas.loc.gov/home/histdox/fed_29.html

 Article I, Section 8 of the Constitution delineating the powers of Congress:

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

This is the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.  http://www.usconstitution.net/const.html

Read those three passages in conjunction with each other and realize I have presented them in the same order in which they were written.

I believe that gives great weight to the notion that the right to bear arms is inherently granted only so far as the militia is concerned.

As we all should know the Supreme Court is the ultimate interpreter of our Constitution. Thus we have this part of the holding in District of Columbia v Heller, the 2008 case deciding individual gun ownership was permitted by the 2nd Amendment:

“(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.”

The Court also recognized that some state constituions, predating the federal one, protected ownership of guns.

But (and there are often big buts in SCOTUS cases) the Court also ruled:

2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.”

Taken all together, the basic state of the law is that generally firearm ownership is protected but the government  does have some power to limit the types of guns and who may own them and where they are permitted.

In this time, now a month past the tragic and horrific murders in Newtown, Conn. there is ample rhetoric calling for more controls on at least the type weapons usually put to work in these mass slayings while at the same time our 2nd Amendment defenders resist any limitations whatsover.

Our reality is that the 2nd Amendment, is not absolute. It, like the other provisons of our Bill of Rights, is to be cherished but, in practice and under certain conditions is most definitely not unlimited.

SCOTUS, THANKS FOR THE CAMEL

Like 100% of true blue Americans I was ecstatic on Thursday, June 28, when the U.S. Supreme Court upheld the Patient Protection and Affordable Care Act—often and derisively called Obamacare— a term which you will see typed by me for the last time in this paragraph.

Well, okay the ruling wasn’t received with favor unanimously…though it should have been. Curiously Chief Justice John Roberts joined the four staunch liberals on the bench to rule the law is valid.

And things got curiouser and curiouser.

Most people, legal experts as well as some blog commentators with too much time on their hands and a desire to return to the eighteenth century (Thank you, Centinel) felt the decision would pivot on the interpretation of the Commerce Clause of the Constitution.

Those who supported the law made their case that the Commerce Clause permitted the expansion of federal power to include requiring the purchase of health insurance. Those against the law vehemently invoked everything from the Federalist Papers to the “original intent” of the Founding Fathers to a long-forgotten phrase in a ninth grade essay noting the limitations of the Clause penned by a young man who just may have been James Madison’s paper boy.

But no, declared Chief Justice Roberts and the Four Seasons…er…the four usually reliable ultra-conservative voters on the Court. The federal government may NOT use the Commerce Clause to justify the individual mandate. That mandate does not regulate commerce, which would be permissible, but it CREATES commerce by requiring a purchase.

Never mind that if someone fails to purchase health insurance they will not find a policy stuffed in their shirt pocket together with a bill for premiums from United Health Care. No, instead their next filing with the IRS would include a bill for an extra amount in tax due the government. And they still would not have purchased anything, not even broccoli.

But, while Roberts was busy exchanging pies in the face with Moe, Larry, Curly and Shemp, and reluctantly made the choice to side with the rival Marx Brothers, he betrayed his roots and invented a fiction to save the mandate.

“Why it is a tax” spake Roberts, wisdom pouring from every pore of his body while the poor listened harkening to the news of the fate of their hope for affordable health insurance.

And Congress, to the regret of almost anyone living and breathing within our sea-to-shining-sea borders, most certainly does have the power to tax, even our amber waves of grain.

So the mandate is not part of interstate commerce because it is a tax but no one pays the tax unless they do not purchase health insurance available in interstate commerce.

But wait a minute! Some years ago Congress passed the Anti Injunction Act. That law prohibits any judicial action to attempt to forestall enforcement of a tax . A person can sue if he has paid the tax in full, protests its legality and has been refused a refund. Even if the mandate is a tax, it does not become effective until 2014 and of course no one has yet been billed for the tax for their failure to purchase health insurance.

Hmmm, maybe that was not wisdom pouring from the pores of the Chief Justice.

Oh heck, Roberts can get around this. He’ll just say that the Anti Injunction Act and the ACA were both products of Congress at separate times so that means one cannot negate the other. The Anti Injunction Act passed in 1867 and the ACA in 2010. Not even Senator Robert Byrd voted for both.

Things get curiouser and curiouser.

One part of the ACA was stymied (but not Buckwheated). In 2014 the law provides for the expansion of Medicaid to include all those who earn no more than 133% of poverty level income. That means supergrowth of Medicaid rolls in states. most of which have current eligibility requirements that are much stricter, including asset tests.

However, the federal government will carry all but a small percentage of additional costs. States not complying with the new standards stand to lose Medicaid funding.

Roberts calls this coercion and declares that if states fail to comply the federal government cannot end funding.

This part of the ruling ignores prior examples where the federal government forced the states to bend to federal will or lose money. The most glaring example was when Uncle Sam wanted the drinking age to be 21 everywhere and threatened to withhold highway construction funds until a state complied.

So now, if a state wishes to opt out of the looser Medicaid eligibility requirements, many of its poorer citizens will be left without insurance or bare minimum coverage as they will not be able to afford more.

It seems the four Justices who most often find Roberts to be a dependable and reliable ally have themselves offered scathing dissonant dissents to the controlling ruling. It is as if they believe Roberts is a Judas in their midst, though perhaps their present enmity stems from the fact he forewent placing a kiss upon them prior to his betrayal.

All this strained logic and circumlocutory reasoning, though I most definitely approve of the result, reminds one of the definition of a camel as a horse designed by a committee.

Once the opinions have been digested and the smoke has cleared and we can plainly view the creation of the Supreme Court we are left with two questions.

Is it bactrian or dromedary?

Is it over the age of 21?

HEALTH CARE—BY THE UMOC

Another in my series of looks at 2012 campaign issues.

This one could prove to be the 800 pound gorilla in the room, or it could be a meek little turtledove cowering in the corner.

Guess what? It all hinges on what the Supreme Court does with the Affordable Care Act. Their decision is expected to be handed down by the end of the month.

A) SCOTUS upholds the law. All will be right with the world. What many consider a linchpin of Obama’s first…and possibly last…term the ACA remaining in force will deflate many of the arguments submitted against him. To date the parts of it that have become effective such as children staying on their parents’ insurance till the age of 26 and the partial elimination of the denial of coverage for pre-existing conditions are popular, as are some lesser known provisions.

United Health, one of the country’s major health insurers, has pledged to keep key reforms regardless of what the Court rules.

http://slatest.slate.com/posts/2012/06/11/unitedheath_to_keep_some_parts_of_obama_s_health_care_reform_law_regardless_of_scotus_ruling_.html

Retaining the ACA as is, however, is not a panacea. That law is flawed mainly in respect to not going far enough. There are some features which will lower health care costs—or at least prevent them from rising as fast. But the private insurers are not bound by these cost containment provisions and I expect them to continue raising premiums beyond the rate of inflation.

As the individual mandate is not effective until 2014, it will be some time before the distribution of costs across a wider and healthier demographic relieves the pressure to raise premiums so harshly.

I have read many assessments speculating what SCOTUS will do. Some predicting either a thumbs up or down are preposterous in their reasoning. Based on critical reasoning and Constitutional analysis and history, a validation of the law appears to be in order. But then I never in the world thought the Court would decide a Presidential election or declare fictitious entities to be human.

In spite of unresolved needs for reform, if the law is upheld Mitt Romney will be up the creek without a paddle. Since the law he introduced in Massachusetts obviously served as at least a partial model for the ACA, he will be hard-pressed to still voice opposition to it. It would be no surprise to me if he tried to spin his way into attempting to take credit for it in the same manner that he tried to take credit for the success of the bailout of Detroit though he did nothing but bad mouth the concept initially.

The downside to SCOTUS approval is that Obama will coast on that success until 2013 at the earliest when additional reforms should be proposed and debated much sooner.

B) The law is tossed out or parts are nullified. Will the repudiation of the ACA be catastrophic? Forgive me for being a weasel but…it depends.

If the entire law is thrown out that will be a serious blow not only to Obama’s re-election prospects (a veritable chorus of “I told you sos” translated into votes) but also to passing anything to replace it or addressing reform at all.

Striking down only the individual mandate would still not necessarily be fatal to the law. As I wrote above there are some aspects already in force that have been received favorably.

There will, however, be no gathering momentum to replace and/or amend it in either case. I hate to blame one party for this (Hell, you all know that’s a lie) but the Republicans, smelling blood, are adversely inclined to do anything but laugh at whatever reform bill is submitted by any of them commie Dems.

Yet, the dismantling of the ACA, in whole or in part, will add a great deal of turmoil to the mix. This HuffPo article presents one version of what the negative consequences would be.

http://www.huffingtonpost.com/2012/06/10/health-care-reform-undoin_n_1584331.html

Here are a few examples:

Better Medicare prescription benefits, currently saving hundreds of dollars for older people with high drug costs, would be suspended. Ditto for preventive care with no co-payments, now available to retirees and working families alike.

Partially overturning the law could leave hospitals, insurers and other service providers on the hook for tax increases and spending cuts without the law’s promise of more paying customers to offset losses.

In either event, the work of health care reform is far from completed. The ACA could use severe tweaking to more closely accomplish the goals that a large segment of our medical community and those dealing with health care policy believe are essential.

If that law has to be replaced we can only hope that reasonable minds can work together to create a replacement. But reading down the roster of members of Congress I find there is little justification for such  optimism.

Another facet of health care which is important, but carries its own set of concerns, is Medicare.  While intertwined in the main issue, its own eccentrities demand special treatment and those are more aligned with Social Security.

I hate the term “Entitlements” (and will review why) but that will be  next on my agenda.

In the meantime—STAY HEALTHY—OR ELSE.

THE CONSERVATIVE TIME MACHINE

Conservatives love the Constitution so much that they want to return the country to 1787, the year it came into existence. Oh, they still want jet travel and smart phones and instant trading on the stock market. You know, everything that money can buy.

What conservatives do not want is to maintain the changes and improvements in our lives since that date that money cannot buy.

Conservatives are quick to talk of “original intent” of the penners of the Constitution. But to them, this original intent is what they believe should still be the purpose and application of that great document which arose out of a small group of men, much wealthier than the folks still back on the farms, and who had a god-given right to rule.

That is the essence of what writer Ted Frier tries to convey in History Repeats Itself In New Gilded Age.  http://open.salon.com/blog/ted_frier/2012/04/20/history_repeats_itself_in_new_gilded_age

He focuses especially on how this view dominates the current Supreme Court under Chief Justice John Roberts.

Just 55 well-to-do white guys wrote the US Constitution during that Philadelphia summer of 1787. And to hear the conservatives of the current Roberts Court tell it, the Founding Father’s “original intent” was for  small groups of wealthy white guys to rule America ever since.

His conclusion is to be expected, given many recent SCOTUS decisions such as the infamous Citizens United case declaring corporations to be persons. Likewise he fears that the Affordable Care Act will be felled by another 5-4 partisan decision.

Actions by the Supreme Court that advance personal freedom — such as the rights of women to control their own bodies, or the rights of non-believers not to be proselytized to in public places, or the rights of criminal defendants to justice – are denounced by conservatives as assaults against The Natural Order of Things and subversive of both democracy and majority rule itself.

However, based on the behavior of these very same conservatives, judicial “activism” doesn’t refer the actions of judges at all but rather to a state of non-conformance with the way conservatives think societies ought to be organized, with most power placed in just a few hands. And this is why conservatives don’t look at their judicial power grabs as “activist” at all, but rather “restorative,” in the same way Bush v. Gore wasn’t “activist” because it restored Republicans to the White House or Citizens United wasn’t “activist” because it restored plutocratic control to the American political process.

Moreover

As they defend their timeless and “immutable principles” — written in the very nature of the universe — conservatives have also shown themselves to be uncommonly adaptive and flexible when it comes to inventing arguments out of whole cloth that advance their own self-interest.

Ever since Earl Warren was Chief Justice and the Court issued a series of landmark rulings on individual rights conservatives have condemned this “judicial activism”. Yet the current court, not quite dominated by conservatives but with the so-called swing votes frequently going their way, has been just as judicially active, only proceeding in the opposite direction to narrow the protections offered the masses.

The severely right wing worldview that underlies the decisions of the Roberts Court fits loosely within a school of judicial thought known as “The Constitution in Exile,” which Jeffrey Rosen in the New York Times defines as the belief that the entire social welfare and regulatory state in force since the New Deal “is unconstitutional as well as immoral.”

In the Reg Henry blog, Reg On Wry, in the Post-Gazette, a few conservative posters were quite adamant in their opinion that Social Security and Medicare were unconstitutional and that the Constitution never intended for Congress to regulate interstate commerce beyond essentially serving as a referee to forestall potentially internecine conflicts between states over trade issues.

We ain’t in Kansas any more, Toto. Nor are we stuck in 1787 when the quickest transit between points A and B was accomplished by a wheeled vehicle pulled by a team of strong and speedy horses. over largely rutted roads.

Just as we laugh at these archaic concepts of public transportation so should we laugh at the archaic concepts of interstate commerce that existed in a heavily agrarian society; that had no means of mass communication or the ability of individuals to convey news to anyone far away save by writing on paper and mailing it or sending by courier.

Likewise the archaic concepts of who had human rights are alien to the citizenry of today. Back then slaves were not free and were not counted as whole persons in the census, women could not vote, and lord help you if your color was other than that of white.

Frier himself projects more of a comparison of today to America’s “Gilded Age”.

All restoration fantasies have their Golden Ages, says Rosen. And for the Constitution in Exile movement, that fondly-remembered yesteryear is the dominance the Republican Party enjoyed from the Gilded Age through the Roaring Twenties when business-friendly courts “steadfastly preserved an ideal of free enterprise” by routinely striking down laws meant to protect workers from the ravages of the unregulated market.

It was here that Mitt Romney’s idea of a public corporation as a “person” first took root as conservatives sought to fashion the 14th Amendment’s due process protections into what economic historian Kevin Phillips called “a sword conservative judges could use to cut down state and federal legislation for ‘unreasonably’ interfering with property and contracts.”

Indeed, says Phillips, while judicial decisions voiding laws as unconstitutional were few and far between before 1850, during the Gilded Age they became commonplace as business-controlled state courts between 1885 and 1899 struck down more than a thousand local laws meant to protect workers.

One of the most notorious judicial power grabs was 1895’s Pollock v. Farmer’s Loan and Trust Co. in which the US Supreme Court invalidated the federal income tax. To the man on the street, the question before the bar was whether “consumption should pay all the taxes of the federal government or whether investment and speculation should bear their fair share of public burdens,” writes William Swindler in his Court and Constitution in the 20th Century.

The New York World called the Court’s decision “a triumph of selfishness over patriotism and another victory for greed over need.”

Aside from the realm of the Supreme Court this retro effect of present conservative mores manifests in our tax system. It has been well-noted that individual income tax rates, at least the top marginal rates, are at near historic lows while during prveious periods of great American prosperity they were nearly confiscatory.

Likewise much blame for our present economic malaise has been laid at the foot of allegedly too high corporate taxes. Yet, as found here, federal revenue from the corporate income tax has dwindled to the equivalent of a slight blip on GDP even as many companies squirrel away huge profits or park them overseas.

http://www.taxpolicycenter.org/briefing-book/background/numbers/revenue.cfm

Revenue from the corporate income tax fell from between 5 and 6 percent of GDP in the early 1950s to 1.3 percent of GDP in 2010.

And take a look at the sources of revenue in 2010.

The payroll tax portion consists not only of Social Security and Medicare taxes but also railroad retirement, unemployment insurance, and federal workers’ pension contributions.

That segment of revenue is the only source that has experienced steady growth as a percentage of GDP. Though personal income tax averages 8% of GDP, in this example it is just above 6.2%.

But what is the noise emanating from the houses of Congress and from conservative politicians and their flunky pundits everywhere? It is that the corporations and the rich—the “job creators”— are paying too much in taxes and need to pay less. Again that means an increased burden on the masses.

Remember Mitt Romney’s tax returns? In  two years he earned around $45 million. How much did he pay in payroll taxes? Zero. They are not charged on interest or dividend income.

Frier continues his analysis of the Gilded Age and the similarities to it we are currently undergoing. What could happen as a result?

The misalignment between political and economic power can grow for decades, says Lind, until the abuses and exploitations the political system finds itself powerless to address explode in a cataclysm of long delayed reform, such as the Civil War and Reconstruction, the Progressive Movement and New Deal and, perhaps today, Occupy Wall Street.

And while liberals are accused of being too far to the left, the reality is something distinctively different.

As the wealthy become ever more aware of themselves as a distinctive and, in their own minds, embattled class, this disengaged plutocracy begins to exhibit all the classic defensive characteristics of a reactionary caste, whose inability to relate to those outside their charmed circle is perfectly manifested in Mitt Romney’s wooden and socially inarticulate behavior around other human beings.

The widening gap between the parties, which is directly related to higher income inequality, is occurring because Republicans are moving far to the right not because Democrats are moving left. Krugman says we see this most obviously in the Republican proposals for health care reform that the President adopted as his own template for Obamacare only to see Republicans denounce their own ideas as Marxist-Leninist “Socialism!”

Today’s conservatives in their Ayn Rand inspired  quests for few taxes and no restraints on corporations and the wealthy seek to roll back any progress in our society except the evermore imaginative ways they can gain pelf while any random benefits to the masses are unsecured if not deliberately withheld.

I am not prepared to go along for this ride in the conservative version of H.G. Welles’ Time Machine. Are you?

POLICE—NOT FACEBOOK—BIGGEST DANGER TO YOUR PRIVACY

The warnings about what information Facebook or Google or other internet sites glean from you and use or share are valid, but the real danger to your privacy and legal rights comes courtesy of those sworn to uphold the law, law enforcement agencies.

In December a couple of fans were driving home from a Star Trek exhibit in St. louis through Collinsville, Illinois when they were stopped by a local cop for allegedly making an unsignaled lane change. Thse were two white, middle-aged men, unremarkable in appearance or garb or vehicle. They did have out-of-state license tags.

Bad enough the stop was bogus, which the cop later admitted, but he then proceeded to delay them unnecessarily while he fished for information that might let him conclude they were carrying drugs. This has become standard operating procedure for highway cops observing cars with out-of-state plates.

The reason behind this? Not so much to stop the flow of drugs, but to justify confiscation and forfeiture of property, particularly cash, which their departments then use to bolster their budgets.

Watch the linked video and read the accompanying story to see how this is accomplished and noting that the K-9 drug dog search conducted here is done in violation of accepted standards and practices.

http://www.huffingtonpost.com/2012/03/31/drug-search-trekies-stopped-searched-illinois_n_1364087.html

Just to refresh your memory, the Fourth Amendment to the U.S. Constituition reads thusly:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Now the U.S. Supreme Court has carved out a number of exceptions to the warrant requirement, any exception being one too many in my opinion. (What say ye you advocates for original intent? Yeah, you bastards are silent until health care reform becomes law.)

For some of the many ins and outs and allowable police actions during traffic stops see this:

http://www.ncids.org/Defender%20Training/Drug%20Case%20Training/Stops_Warr_Searches.pdf

Watch your local news or read stories in your local newspaper and I guarantee that at least once a week there will be a tale of an arrest for drugs following a stop for a traffic offense. Many of these arrests stem from consent searches but since the drivers are most likely not aware of their rights, that consent is nonsense.

Now comes this exploration of the fact that police departments are tracking cell phones and their users, with much dubious legality.

http://www.nytimes.com/2012/04/01/us/police-tracking-of-cellphones-raises-privacy-fears.html?_r=1

With cellphones ubiquitous, the police call phone tracing a valuable weapon in emergencies like child abductions and suicide calls and investigations in drug cases and murders. One police training manual describes cellphones as “the virtual biographer of our daily activities,” providing a hunting ground for learning contacts and travels.

But civil liberties advocates say the wider use of cell tracking raises legal and constitutional questions, particularly when the police act without judicial orders. While many departments require warrants to use phone tracking in nonemergencies, others claim broad discretion to get the records on their own, according to 5,500 pages of internal records obtained by the American Civil Liberties Union from 205 police departments nationwide.

The internal documents, which were provided to The New York Times, open a window into a cloak-and-dagger practice that police officials are wary about discussing publicly. While cell tracking by local police departments has received some limited public attention in the last few years, the A.C.L.U. documents show that the practice is in much wider use — with far looser safeguards — than officials have previously acknowledged.

The article notes the recent SCOTUS ruling that the warrantless placing of a GPS on a drug suspect’s vehicle was unconstitutional. With so many cell phones now having a GPS function, there is additional doubt to the legality of this tracking.

If all that were not bad enough, a drone may soon be coming to your neighborhood. You know what drones are, of course. They are the unmanned flying objects (the REAL UFO’s we should be concerned about) such have been used in Afghanistan and Pakistan and other venues of our foreign misadventures, most notably the one used to murder Anwar al-Awlaki, an American citizen not charged with any crime, last fall.

Glenn Greenwald of Salon has had his finger on the pulse of the movement to have local law enforcement unleash drones on U.S. soil, or should I say airspace.

http://www.salon.com/2011/12/12/the_growing_menace_of_domestic_drones/

That article has links to others he has written as well as to other sources.

He makes his point pretty well about the danger of drones:

Whatever else is true, the growing use of drones for an increasing range of uses on U.S. soil is incredibly consequential and potentially dangerous, for the reasons I outlined last week, and yet it is receiving very little Congressional, media or public attention. It’s just a creeping, under-the-radar change. Even former Congresswoman Harman — who never met a surveillance program she didn’t like and want to fund (until, that is, it was revealed that she herself had been subjected to covert eavesdropping as part of surveillance powers she once endorsed) — has serious concerns about this development: ”There is no question that this could become something that people will regret,” she told the LA Times. The revelation that a Predator drone has been used on U.S. soil this way warrants additional focus on this issue.

This may be Greenwald’s most trenchant observation:

There is always a large segment of the population that reflexively supports the use of greater government and police power — it’s usually the same segment that has little objection to Endless War — and it’s grounded in a mix of standard authoritarianism (I side with authority over those they accused of being Bad and want authorities increasingly empowered to stop the Bad people) along with naiveté (I don’t really worry that new weapons and powers will be abused by those in power, especially when — like now — those in power are Good). This mindset manifests in the domestic drone context specifically by dismissing their use as nothing more than the functional equivalent of police helicopters. This is a view grounded in pure ignorance.

He’s right. This large segment of the population willing to accept any tools authority wants to utilize are among the first to rail against Facebook and Google privacy policies.

Don’t know about you, but I’ve never heard of Facebook or Google imprisoning or executing anyone.

Save the Constitution!

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THOSE DAMNED ACTIVIST JUDGES THE RIGHT ALWAYS COMPLAIN ABOUT BLOCK HEALTH CARE LAW AT THE REQUEST OF THE RIGHT.

This week has been busy on multiple fronts with efforts to overturn the health care reform enacted last year.

On Monday, a federal judge in Pensacola, Florida ruled that the entire law was unconstitutional because the individual mandate it contains to buy health care coverage failed to pass constitutional muster, and it was impossible to sever the applicable provisions from the whole.

In that ruling he joined a colleague in Virginia who in December ruled the mandate itself unconstitutional, but upheld the rest of the law. However, the Fla. decision  did include language that Congress indeed has the power to regulate health care but, again, the judge had to void the entire law because he could not see how that mandate could be separated from the whole.

I am emphasizing that aspect of the ruling for a very good reason. It is well-established in the history of decisions by the Supreme Court of the United States (hereinafter SCOTUS) that when the constitutionality of any law is challenged, if only parts of that law are deemed in violation,  invalidating only those parts will be the remedy if the balance of the law can stand on its own.

In that manner they are utilizing judicial restraint which itself is a hallmark of judicial review. Courts want to limit the application of their rulings whenever possible. There are many nuances to this principle as well as notable exceptions, but one should always begin with these presumptions.

There was also a ruling in federal court in Michigan last October upholding the entirety of the law. Since there are conflicting decisions in different jurisdictions, it is very likely that the losing party in each case will appeal the ruling and eventually such appeals will reach SCOTUS.

Until then, the ruling in each of these cases will be the settled law in that federal judicial district only, until overruled or confirmed by the Circuit Court of Appeals which includes that district. Then the Appeals Court decision will be controlling only within that Circuit, of which there are eleven in the United States.

(Fla. is in the 11th Circuit, Michigan the 6th, Va. and W.Va. the 4th and Pa. the 3rd)http://en.wikipedia.org/wiki/United_States_courts_of_appeals

Naturally this latest ruling has brought a slew of comment by legal minds great and small as to its meaning. The Wall Street Journal has presented a collection of such. http://blogs.wsj.com/law/2011/01/31/the-health-care-ruling-the-experts-speak/

Curiously, at least to me, none of these lawyers addressed the language from the Fla. ruling that, while dictum, indicates that a health care law without that individual mandate or some other constitutional flaw could very well have been upheld.

Subsequent to the December Va. decision this commentary appeared on CNN.com. The writer does not believe that ruling will be sustained through appeals and explains why with an example of a recent case before SCOTUS involving the growing of marijuana for personal use. http://www.cnn.com/2010/OPINION/12/14/bonnie.health.law.ruling/index.html

Here is a report concerning the Michigan ruling upholding the law.http://www.abcactionnews.com/dpp/news/health/foes-of-health-care-law-lose-key-court-ruling-wcpo1286551345562

Now I have an initial problem with the fact that a number of states’ Attorneys General took it upon themselves to file suit or join litigation seeking to overturn the law. They are invariably conservatives although some much more so than the others.

It has been a constant political point among conservatives since the 1968 Presidential campaign of Richard Nixon to decry so-called activist judges. They believe that these judges have substituted their own judgment in rendering decisions that these conservatives felt were completely outside of the purview of permissible judicial review. Further they accused these judges of, in effect, creating their own legislation with these rulings, rather than wait for the actual legislature, Congress, to address the pertinent issues.

That they have now undertaken to lead a frontal assault on the health care law after they lost a bitter legislative battle, is rank hypocrisy and flies in the face of all they have argued for over forty years. But, then again, so did the legal maneuverings that put the results of the 2000 presidential election in the hands of SCOTUS.

That is my editorial position.

However, besides what I have outlined above, I see two potential additional problems with the actual process of litigation.

Number one is that their arguments have been focused on the individual mandate to purchase coverage. I have examined neither the pleadings nor supporting evidence of briefs to know precisely what their arguments are. But I will say this.

The individual mandate essentially applies to and affects only individuals, not the Attorneys general or other entitities who may have joined in the litigation. To my knowledge no actual individuals who might be subject to this mandate are named plaintiffs. Thus I could see opposition to the litigation invoking the matter of “Standing”

Standing is the basic principle that one filing suit have a legal interest in the matter at issue to be able to engage in the litigation. A greatly oversimplified example would be something like this:

In a neighborhood there is a house on a lot with a number of trees. Those trees are old and not well-maintained and large limbs and branches are constantly decaying and falling into the next door neighbor’s yard. But another neighbor sues claiming that those falling branches are a nuisance. However, that neighbor has not been damaged by the nuisance, if it exists at all, so has no standing to bring suit.

Thus in the health care suit, the suing parties are not subject to the mandate and have no standing in court to object.

Another principle governing whether courts will even agree to determine litigation brought before them is “Ripeness”. That doctrine means, again in simplified terms, that damage done to a litigant creating a cause of action is not “Ripe” for judicial action based on speculative damage unless certain conditions precedent are met.

For instance, a union member may be fired from his job due to the claim of his employer that he violated certain conditions of employment. But the union has a contract with the employer with well-defined rules of due process that list the steps necessary  to fire the employee if indeed an infraction has occurred. And then that same contract provides for definite procedures that the employee must take to appeal that ruling. Unless and until he has taken those steps, he cannot involve the courts.

Likewise in litigation not related to administrative remedies there must be an actual issue in controversy for courts to intervene. Since the individual mandate does not go into effect until 2014, I believe an argument is available that the issue will not be ripe until that part of the law is effective.

Now mind you that, other than my brief editorializing, I am merely presenting an overview of some legal technicalities that may be determining factors in further litigation on the health care law. This by no means is all inclusive. But if you hear language and principles applied such as I have outlined, then you can always say you heard it here first.