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News & Politics News & Politics

Another conservative says "Obamacare" should NOT be repealed

Posted by on Apr. 16, 2012 at 4:23 PM
  • 18 Replies
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Conservative Scholar: Supreme Court Should Uphold Obamacare
The Huffington Post

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Yet another prominent conservative legal scholar has stepped forward to urge the Supreme Court to uphold health care reform as firmly within the court's precedents.
In a column published on The New Republic's website, Henry Paul Monaghan, a professor of constitutional law at Columbia Law School, applauded the Supreme Court's conservative justices for their aggressive questioning of Solicitor General Donald Verrilli during oral arguments three weeks ago, but went on to "submit that sustaining the mandate would not give rise to the justices' fears of boundless federal authority."
Moreover, the market for health care is distinctive (if not entirely unique) in several key respects. Virtually all of us will need and obtain health care at some point, but we often cannot predict when or in what ways we will need it. And for the vast majority of us, direct payment for the health care services we obtain would be prohibitively expensive. Yet not obtaining needed medical care can be the difference between life and death.

These features help explain why, unlike many other markets, insurance is the overwhelmingly dominant means of payment in the health care market. They also explain why Congress has required that individuals be given emergency care without regard to their ability to pay. As a result, and again unlike other markets, uninsured individuals who are unable to pay directly for needed medical services necessarily shift the cost of those services to others -- to health care providers, the government, individuals with insurance, and taxpayers.

In that way, Congress is not creating a market which it then seeks to regulate. The insurance-based structure of the health care market is already firmly in place. That is why it was well within Congress's discretion to design legislation to operate within, and to address problems posed by, this vast market.
Monaghan's arguments echo not only those made by the federal government in its briefs and at oral argument, but also those of the handful of other Reagan-era graybeards of the conservative legal movement who have backed Obamacare's constitutionality in the two years leading up to the Supreme Court's review. And as The New Republic's Jonathan Cohn points out, Monaghan's conservative credibility is rock solid:
In 1985, Monaghan wrote a widely read and cited essay called "Our Perfect Constitution" that was critical of activist judges who used the document to justify expansions of individual rights. In 1986, he testified before the Senate Judiciary Committee on behalf of Robert Bork, the arch conservative that former President Reagan tried (and failed) to place on the Court. In the fall of 2010, Monaghan defended the Court's decision in the Citizens United case, which overturned part of the McCain-Feingold campaign law.
What makes Monaghan's piece unique, however, is that it comes after the oral arguments in which the conservative justices upended conventional wisdom in their apparently enthusiastic embrace of the position put forward by the mandate's challengers, despite the calls for restraint coming from right-of-center jurists who made their names decrying judicial activism.
Between the lines, Monaghan's focus on the unique nature of the health care market reads like a direct appeal to Justice Anthony Kennedy, who has never fully embraced judicial restraint as a core principle. Indeed, Kennedy appeared to lean heavily toward striking down the mandate at the oral argument before wavering at the very end.
"I think it is true," Kennedy said, "that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets -- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries."
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by on Apr. 16, 2012 at 4:23 PM
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Replies (1-10):
PamR
by Platinum Member on Apr. 16, 2012 at 5:04 PM

BUMP!

NancSBRN
by Bronze Member on Apr. 16, 2012 at 5:14 PM
2 moms liked this

All I can say it took 44 years to get anything on the table and Yes we all know many things have to be changed and I think will be but to stop it completely is like throwing the baby out with the bath water.

But the gov. is just so disfunctional that  they only care about running for office and doing their best to disrespect each others TEAM and I mean both side if they would act like professoinal and do their damn jobs  gosh somethings might actually get accomplished.

If your not looking at boths side of the ile your not seeing the big picture.

I have Health insurance and each year we get less and less benefits and pay more and more while they charge My husband employer More each year for less and they raise their prices 30% each year because they can. Changing companies does not help because they all do that same thing, and with a pre-existing condition while they say they have to cover it with an older work froce that means they will cover it only and a much Bigger cost and get around co pays for colonoscopies by doing byopsy's and calling that surgery.

BTW my husband works in the health care industry and I have in the past worked in public health when you see it from the inside it looks different.


Carpy
by Platinum Member on Apr. 16, 2012 at 5:33 PM
So? Are we all supposed to fall in line like good little sheep?
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matreshka
by Gold Member on Apr. 16, 2012 at 6:25 PM
4 moms liked this

No solution to the health care problem is going to be accepted with fanfare and ticker tape parades by everyone.  What we do need is to hash out a system that protects working families, children, the disabled and the impoverished.  I think the ACA is a step in that direction. 

Our insurance rates go up every year, the cost of everything medical goes up and its been a pain in our wallet.  Part of this is really due to the fact that people use the ER as their primary care doc and also don't do wellness visits to catch a major disorder or disease early.  This is the first place we need reform.

No one should have to choose between food and medicine as well.

nanaofsix531
by Platinum Member on Apr. 16, 2012 at 6:52 PM
1 mom liked this

A man with a brain that works!

JakeandEmmasMom
by Gold Member on Apr. 16, 2012 at 7:00 PM
3 moms liked this
I'm actually surprised that more conservatives dont support the individual mandate considering it's really just more corporate welfare.
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lga1965
by on Apr. 16, 2012 at 8:18 PM

 Monaghan's arguments echo not only those made by the federal government in its briefs and at oral argument, but also those of the handful of other Reagan-era graybeards of the conservative legal movement who have backed Obamacare's constitutionality in the two years leading up to the Supreme Court's review

This is interesting! I agree --the ACA is not perfect but it is better than nothing. I don't want the people who have huge medical expenses and no insurance to lose their homes or the kids with chronic conditions to suffer because their parents can't keep them on their policies,etc. And yes---if you don't have good health, you have nothing.

JackelineEllis
by on Apr. 16, 2012 at 8:20 PM
BUMP!


TruthSeeker.
by CM Junkie on Apr. 16, 2012 at 8:20 PM
1 mom liked this

 

Quoting Carpy:

So? Are we all supposed to fall in line like good little sheep?

 Lawd I hope not cause it aint  happening over here:)

gammie
by on Apr. 16, 2012 at 8:29 PM
What does that make 2 people? Lol

Government should not force the people to buy insurance.

Why do you want the government telling you how to live and what to buy?
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