. . .that every lefty legal pundit in the country would lose a reason to look down their nose at Clarence Thomas if oral argument was done away with, which is among the reasons why you will rarely hear one call for doing away with it (oddly enough, Des and I had a rare moment of agreement a few years back when I commented on the limited usefulness of oral argument and he agreed without prompting--he'll never make it if he tries to become a lefty legal pundit).

I seem to recall that the questions asked in fact do not always conform to how the justices rule... I think this will come down different than most people think......

Sackett was a narrow, meaningless decision that will be forgotten to history when a court rules that the Sacketts are lying poopyheads when they have their day in court. It will have absolutely no relevance going forward.*

*closed-captioned for the sarcasm-impaired.

there are plenty of examples in tax law where items are accounted for different ways depending on context. That's why most companies bigger than a one or two man operation keep at least two separate sets of books, at least one for accounting purposes and one for tax purposes. Congress does this all the time, claiming that in some circumstances an item will be a tax and in others not. This also interacts with state tax laws in, um, interesting ways. So I don't think his answer is sophistry, just a recognition of reality. If you want a headache, and an understanding about why I never, ever would be involved in tax law, just read up on the definition of tax expenditures sometime.

mandatritious.

Manditative.

This is a problem for a toddler to solve. They have a unique grasp of language.

the likely swing vote, seemed to indicate in today's questioning that a major concern of his is whether Obamacare's mandate "fundamentally changes the relationship between the government and individuals." I haven't yet found the gov't's responses to his concerns, but I'd hope someone will ask the court to consider how extraordinary it could be for the government to promote a watered-down version of already-established law...and to consider whether striking down Congress's rationale for a law makes sense when laws with identical (or even more coercive) effects are already fully accepted.

I think the two cases are not as identical as you think they are.  The government could, if they chose, use the taxing power to levy a flat $17,000 annual tax on each person.  $17,000 is roughly a year at minimum wage. They could then take that money and send it to private plantation owners in the swamps of Alabama, who would hire cotton pickers.  On the other hand, the government cannot force people to be slaves on private plantations even though you might think the two cases are effectively the same.

I fully agree that a single payer system would in some respects give me less freedom with respect to medical care than the ACA mandate, and that the money ends up in the same place.  However, under single payer paid from general revenue, I do have the freedom to do nothing at all except passively let the govt take tax out of my paycheck, something I've already accepted.  Under ACA I have to get up off the couch and buy something I didn't want to.  Clearly that's not an important difference to you,  but it is to me.

It's important because I want to retain the definition of what it means for money to be "mine".  What the pro-ACA folks want is to be able to keep saying that taxes are low, but make up for that by simply mandating how I spend an ever increasing percentage of what they call "my" money. It's a dishonest game and I see no end to it once you get started. 

There's plenty of other examples of this game: 

(1) If you want everyone to have plentiful contraceptives, why not buy them out of tax revenue and hand 'em out for free?  Instead, you make people who don't need or want them buy insurance plans that cover them,.

(2) If you want to have a nice place for people to walk to the beach,  use eminent domain to buy the land and make a greenbelt. Instead, you make property owners let people walk on their land, while still having to pay taxes and be liable.

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Having said all that, why not ask yourself why the govt decided to try a pass this off as regulation of commerce rather than tax-and-spend.  I'll take a shot at it:  if they called the mandate a general revenue tax,  it's a flat $800 head tax, something that most progressives would (correctly) say is incredibly regressive and reactionary.   They want the effect of a tax without the political costs.  They want the effect of big government without having to say they once again raised the budget by a huge amount. 

It's trivial to come up with examples of markets that are not universal, not necessary and pretty predicatable that still end up regulated in one way or another. i.e. autos, investments, baby furniture, credit, firearms, etc.

Beyond that, some of your calls above are questionable (i.e. Mortgage insurance is neither universal nor particularly necessary, there are multiple ways around it even today)

All this is to say, I don't see how your test above binds in any way.  Government regulates markets, but not based on what you're putting forward as the reasoning.

but in general yes.  Massachusetts could and did have an individual mandate. However, just because some other state could in principle go totalitarian doesn't mean I need to accept the national govt doing the same.  Look up "federal" and "enumerated powers".

But, I think you misunderestimate Randy Barnett and other parties to the anti-ACA team. They are going for much bigger game than an $800+/- mandate. They're trying to nail down the limits on the commerce clause once and for all. They're trying to bait the govt into saying what the limit is, and the govt has made it clear they don't want any limit.

First, that the arguments seem to shift back and forth between medical care and medical insurance without distinguishing the two clearly. Second, a lot of the hypotheticals of the conservative justices indicate that they don't seem to understand how insurance works, especially health insurance over the lifetime of an individual.

AFAICT you're doing a better job than the SG in articulating a generally applicable principle limiting the commerce clause.  Who elected those clowns?

The weakest spot, and I think you know it, is drawing a line between predictable and unpredictable.  First, it's arbitrary - how did you derive that from the text of the constitution, or even from prior precedent?  Second, as your argument in the last paragraph shows, unpredictability is really just a step toward proving necessity, which you've already stated. 

Regardless, your proposal is more restrictive than what govt lawyers are going to accept.  They're hoping for a ruling that there is no limit, or that the SC will somehow sidestep the whole issue.

but he is no less deserving of mockery.

My worst fears had come to pass not in Georgia but in Washington, D.C., where I was being pursued not by bigots in white robes but by left-wing zealots draped in flowing sanctimony.

He sounds like Ann Coulter, albeit with less aggression and more whining.  He's a pathetic excuse for a human being, let alone a SCOTUS justice.  Attacking the same policy (affirmative action) he most certainly benefited from shows tribal fealty to dogma and a complete inability for self-reflection.

He may not be as dumb as he appears.  OK, fine.  Some of the smartest people I know don't say much.  But his dissent in Hamdan was terrible.  I have seen nothing in my admittedly far from complete reading of his writings that he belongs on any bench, let alone the highest one.

So your impact on the health care system is at least a couple orders of magnitude larger than your impact on the broccoli market. Also, you are extremely unlikely to find yourself in a situation where you need $150,000 worth of emergency broccoli. Or any other food, for that matter. Your analogy holds up pretty well otherwise: shoplifters in the produce section are like people who don't pay their hospital bills in that they make broccoli (or sutures) more expensive for the rest of us. 

Of course, there are laws against stealing broccoli. Even federal laws. Stealing health care, not so much.

As for your point about conflation of two different businesses, health care & health insurance: the health care market already conflates those two businesses at every level. Is Congress supposed to ignore actual market practices because you prefer categorical distinctness?

But regardless, how does Gonzales vs Raich have any impact on interstate trade? And somehow there is not a free rider when it comes to unpaid broccoli?

by limiting the distribution of premiums and so failing to cover those individuals' own (lifelong) liability for the system. But it's really a matter of degree - all plans have some deductible, and the maximum deductible should ultimately be a function of total health costs vs. total GDP.

(Total Annual Health Expenses / Total US Income Earning Individuals) = the fairest (though somewhat regressive) possible distribution of risk, with no offsets for actuarial subgroups. An aging population, and sudden population increases (babies everywhere!) would strain that basic system, so you'd want to account for demographic shifts to smooth out relative risk across generations. 

offset some of their costs by "overcharging" elsewhere. And of course insurance companies already do spread income to balance payouts across demographics.

The main changes to the current structure of insurance (not so much care?), as I see it, that would be introduced by the contested legislation are (i) the ban on excluding pre-existing conditions skews the existing overall income/payout balance and (ii) offsetting that, the mandate captures healthy individuals who otherwise wouldn't pay premiums or use services*. In other words the "current insurance enrollees" changes even if, as you convincingly note, the "current players" don't. I agree that Congress can screw over** one group to help another but I think this is usually done via taxes although for the mandate my opinion is that the CC suffices.

* more precisely, it grabs a larger net income from low-risk groups who are infrequent consumers of care and overall don't cost much to treat.  

** not that overpaying for insurance -- when you have a relatively decent income and thus don't qualify for subsidies -- is so terrible, in the big picture, but whatever.

Edit: actually, I don't know why I implied care wasn't significantly affected. Some of the pre-existing conditions might not qualify as emergency care so at least initial treatment could be denied without insurance. I guess I should say that the cost structure for hospitals doesn't change much because they shift from denying care to providing care but with compensation in those cases.

What principles?

to both sides.

I'll take it over the naked hackery from Scalia in this case, however. 

I waffle on having respect for the guy, but the oral transcript for day 3 was unquestionably a travesty.

And a correct result doesn't excuse crappy reasoning in arriving at it--one would think that Roe v. Wade would have driven that lesson home by now.

.

....in this case might not necessarily be a bad thing.  Businesses are there to make money.  Hand them a regulator/partner/enforcer and you've really managed to get the worst of both worlds.  My preference is for a regulatory borderland to be set up, within which everything goes and outside of which nothing goes. 

he's not the first to have pointed out that the right only very, very recently discovered that mandated private health insurance, privatized social security, etc. are unconstitutional.

We can only hope that if SCOTUS strikes down the ACA it might solidify Democrats resolve to ram through a much more significant expansion of public insurance.