InfoAnda - Analysis: Handicapping Health Care Lawsuits, And The Truth-In-Labeling Factor

Pakistanis angry over detentions in Times Sq. case
Monday, May 24, 2010
ISLAMABAD – Relatives of three men detained by Pakistan for alleged links to the suspect in the attempted Times Square bombing say the men are innocent.
They

Taiwan denies boycotting Australian film festival
Thursday, August 6, 2009

AFP - Thursday, August 6TAIPEI (AFP) - - Taiwan's Beijing-friendly government on Wednesday denied boycotting an Australian film festival amid a row over the e

Merkel's support dips, regional ally resigns International
Thursday, September 3, 2009

By Sarah Marsh and Noah Barkin

BERLIN (Reuters) - Chancellor Angela Merkel suffered a double blow on Thursday as a senior party ally in east German

Minister seeks closure of anti-Berlusconi websites
Wednesday, December 16, 2009
ROME (AFP) - – The Italian government moved Tuesday to close down Internet sites encouraging further violence against Prime Minister Silvio Berlusconi, who

Asian markets mixed after Wall Street rally
Wednesday, March 18, 2009

By ELAINE KURTENBACH,AP Business Writer AP - Wednesday, March 18SHANGHAI - Asia's stock market rally seemed to be running out of steam Wednesday, despite an

Myanmar tells baffled voters to do their duty | | 10 September 2010
Sprint says has long waiting list for new phone | 13 May 2010
ANALYSIS: Leadership a vexing issue for Thailand's opposition party | 13 January 2011

Stanton lifts Marlins to series-opening win over Mets | 2 August 2011

Advertisement Analysis: Handicapping Health Care Lawsuits, And The Truth-In-Labeling Factor Source: (KaiserHealth) Reporter: KaiserHealth Staff Location: Washington, DC, United States Published: September 14, 2011 08:05 pm EDT Topics: Health, Healthcare Policy, Crime, Law And Justice, Justice And Rights Beneath the thousands of pages of legal arguments in the health care lawsuits to be decided sooner-or-later by the Supreme Court lies an easier-to-grasp, if largely unarticulated, background question. Can Congress and the president use an unprecedented and potentially limitless expansion of the power to regulate interstate commerce to avoid the political hazards of calling a tax a tax? Or might some justices effectively impose a constitutional truth-in-labeling requirement? In order to explore these questions, it's important to first review the current tally of wins and losses. So far, one federal appeals court in June upheld the mandate by 2-1. A second struck it down in August by 2-1. And a third on Sept. 8 threw out two other challenges on jurisdictional grounds. Federal district courts have also issued conflicting rulings. With more cases in the pipeline, it's certain that the Supreme Court will step in to decide the mandate's fate. The final decision will probably come down next June, if the Obama administration files its petition for review promptly this autumn, but certainly by 2013. Most legal experts have long predicted that the Supreme Court will uphold it. Although the confidence level has dipped as lower-court judges have gone both ways, Walter Dellinger, former acting solicitor general under President Clinton, predicts a 7-2 vote to uphold. Tom Goldstein, another leading Supreme Court advocate, who represents AARP as a friend of the court supporting the law, predicts 7-2 or 6-3, adding that "the opponents of the law have done a tremendous job at articulating their theory, and they've gotten more traction than I imagined they would," but he doesn't "see a realistic chance of them winning." But David Rivkin, one of the lead lawyers challenging the health care law, confidently predicts a 5-4 vote to strike down the individual mandate. Based on the current lay of the land, I'd put the chances at about 25 percent to 33 percent that the mandate is overturned. The court seems even less likely to sweep away the rest of the 975-page law, according to legal experts following the case closely. For starters, the court's four Democratic appointees seem almost certain to vote to uphold the law. And Justice Clarence Thomas seems almost certain to vote to strike it down. Still, it's harder to call the other four Republican appointees, Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito. Each side in the health care litigation has cited one or more opinions written or signed by each of these four justices. But even on the questionable assumption that each is a good bet to vote with Thomas, the odds seem against all four doing so. (For example: 2/3 x 2/3 x 2/3 x 2/3 = 16/81.) Examining The Arguments Against The Mandate This is not to deny that the health law's challengers have very respectable arguments against the mandate, which would in 2014 require millions of healthy people either to buy health insurance policies or to pay financial penalties. First, the mandate is without precedent. Congress has never before passed a law requiring Americans to buy a commercial product that they don't want in the name of regulating interstate commerce. And the novelty of a far-reaching new requirement may (or may not) count against its constitutionality, the court has said in prior cases. "Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service," the Congressional Research Service reported in 2009, while the health care bill was pending. Second, although the justices have construed very broadly Congress's power to regulate commercial activity, they have never held that Congress may regulate even inactivity, by requiring people who want to be left alone to engage in commerce. As such, the mandate encroaches on individual liberty and autonomy in a way that is sure to trouble those justices -- especially Kennedy, who is often the pivotal vote -- who see judicially imposed limitations on the commerce power as vital protections of liberty. Third, although only two Supreme Court decisions (in'95 and 2000) since'37 have struck down acts of Congress as exceeding the commerce power, they stand for the proposition that that power must be restrained by some meaningful, judicially enforceable limiting principle. Opponents of the individual mandate have made a strong case that a decision upholding it would effectively give Congress unlimited power to require people to buy vegetables, cars and anything else that Congress might choose to promote. "If Congress may compel individuals to purchase health insurance from a private company," Chief Judge Joel Dubina, of the 11th Circuit Court of Appeals, wrote in an August 12 decision striking down the individual mandate but upholding the rest of the law, "it may similarly compel the purchase of other products from private industry, regardless of the 'unique conditions' the government cites as warrant for Congress's regulation here." Fourth, there is that truth-in-labeling concern. While never expounded as a formal doctrine, this point stems from the distinction between Congress' broad power to regulate interstate commerce and its even broader power to "lay and collect taxes" – a theme running through the current litigation. The court has long ruled that the taxing power is virtually unlimited, on the assumption that the political process is an adequate safeguard against excessive or abusive taxes -- at least, if the taxes are undisguised. And this is an important point to remember as the legal action continues to unfold. Tax Or Penalty? One of the ways the president and his allies wanted to offset the costs health insurers would bear under the health law's guaranteed-issue requirement is to require millions of Americans to spend billions of dollars on health insurance, even though many of them might otherwise choose not to buy it. The most constitutionally unassailable way to do this would have been to raise the taxes of these Americans while offering tax credits to those who bought expensive, government-approved health insurance. But as U.S. District Judge Roger Vinson, of Pensacola, Fla., asserted in one of the early rulings against the law, "Not only are taxes always unpopular, but to do so at that time would have arguably violated pledges by politicians … to not raise taxes, which could have made it that much more difficult to secure the necessary votes for passage." So Congress devised the individual mandate to extract the money from taxpayers while strenuously asserting that the penalty for noncompliance was not a tax. Since the health law's passage, though, the Obama administration has argued that this penalty is a tax, and thus should be upheld as an exercise of the taxing power, as well as of the power to regulate commerce. But even most of the judges who have upheld the mandate as a regulation of interstate commerce -- as well as those who have struck the mandate down -- have rejected the administration's position that it is also a valid exercise of the taxing power. Different Supreme Court precedents appear to point in different directions on whether the commerce power is broad enough to justify the individual mandate. Here's why I am laying odds that they will uphold it: --The court's most recent precedents suggest (ambiguously, to be sure) that the only judicially enforceable limit on the commerce power is that Congress cannot use it to regulate non-economic, personal, local activities. --The health care and health insurance markets massively affect interstate commerce. In the words of an opinion upholding the mandate by Bush-appointed Judge Jeffrey Sutton, "No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce." And for all the objections to regulating "inactivity," the individual mandate is no more intrusive on personal liberty and autonomy than, say, the Social Security and Medicare taxes, which serve similar purposes. This analogy to the Social Security and Medicare laws, which included clearly labeled taxes, only highlights the truth-in-labeling objection to the individual mandate, which is arguably a tax in disguise. But truth does not come easy to politicians. And in this case, the justices may turn to an important principle: When the constitutional arguments for and against striking down a major act of Congress seem almost equally strong, say advocates of judicial restraint, the court should defer to the people's elected representatives -- no matter how unpopular they are with the people. "Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation," as Judge Sutton concluded, "allowing the people's political representatives, rather than their judges, to have the primary say over its utility." Taylor is a contributing editor for National Journal. - Provided by Kaiser Health News. Republish Email Facebook Digg Twitter Share [ Close ] When publishing articles from AHN we require that you follow several simple rules and that you abide by our Terms and Conditions. You may: Use and display the provided article text on a website or blog. Under the following conditions: You may not republish the article(s) wholesale, automatically or systematically; articles must be republished individually. You may not sell license or redistribute the content without specific permission. Email us if you’d like to. You must display and attribute the article in the manner specified by AHN (but not in any way that suggests that we endorse you or your use of the work). You may not remove ads, logos or tracking information from the article. You may display the article on a website, but you may not use the article for any other commercial purposes. You may not alter, rewrite, transform, or build upon the article. You may only use provided the javascript code to request the article from our systems. Copy and paste the following into your blog entry or the HTML on your page. It will automatically deliver the article as the page loads. <script type="text/javascript" src="http://www.allheadlinenews.com//syndicator?storyid=7020884860"></script> << Return to script page License THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS LICENSE ("LICENSE"). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE OR COPYRIGHT LAW IS PROHIBITED. BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. TO THE EXTENT THIS LICENSE MAY BE CONSIDERED TO BE A CONTRACT, THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS. 1. Definitions "Collective Work" means a work, such as a periodical issue, anthology or encyclopedia, in which the Work in its entirety in unmodified form, along with one or more other contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A work that constitutes a Collective Work will not be considered a Derivative Work (as defined below) for the purposes of this License. "Derivative Work" means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted, except that a work that constitutes a Collective Work will not be considered a Derivative Work for the purpose of this License. For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered a Derivative Work for the purpose of this License. "Licensor" means the individual, individuals, entity or entities that offers the Work under the terms of this License. "Original Author" means the individual, individuals, entity or entities who created the Work. "Work" means the copyrightable work of authorship offered under the terms of this License. "You" means an individual or entity exercising rights under this License who has not previously violated the terms of this License with respect to the Work, or who has received express permission from the Licensor to exercise rights under this License despite a previous violation. 2. Fair Use Rights. Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws. 3. License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, non-exclusive, revocable (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below: to reproduce the Work, to incorporate the Work into one or more Collective Works; The above rights may be exercised on freely and openly accessible web media formats . The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats, but otherwise you have no rights to make any alterations or Derivative Works. All rights not expressly granted by Licensor are hereby reserved, including but not limited to the rights set forth in Sections 4(d) and 4(e). 4. Restrictions.The license granted in Section 3 above is expressly made subject to and limited by the following restrictions: You may publicly display the Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy of the Work You publicly display. You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of a recipient of the Work to exercise the rights granted to that recipient under the terms of the License. You may not sublicense the Work. You must keep intact all notices that refer to this License and to the disclaimer of warranties. When You publicly display the Work, You may not impose any technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License. This Section 4(a) applies to the Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Work itself to be made subject to the terms of this License. If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any credit as required by Section 4(c), as demanded. You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works. If You publicly display the Work (as defined in Section 1 above) or Collective Works (as defined in Section 1 above), You must, unless a request has been made pursuant to Section 4(a), keep intact all copyright notices for the Work and provide, reasonable to the medium or means You are utilizing: (i) the name of the Original Author (or pseudonym, if applicable) if supplied, and/or (ii) if the Original Author and/or Licensor designate another party or parties (e.g. a sponsor institute, publishing entity, journal) for attribution ("Attribution Parties") in Licensor's copyright notice, terms of service or by other reasonable means, the name of such party or parties; the title of the Work if supplied; to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work. The credit required by this Section 4(c) may be implemented in any reasonable manner; provided, however, that in the case of a Collective Work, at a minimum such credit will appear, if a credit for all contributing authors of the Collective Work appears, then as part of these credits and in a manner at least as prominent as the credits for the other contributing authors. For the avoidance of doubt, You may only use the credit required by this clause for the purpose of attribution in the manner set out above and, by exercising Your rights under this License, You may not implicitly or explicitly assert or imply any connection with, sponsorship or endorsement by the Original Author, Licensor and/or Attribution Parties, as appropriate, of You or Your use of the Work, without the separate, express prior written permission of the Original Author, Licensor and/or Attribution Parties. 5. Representations, Warranties and Disclaimer UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND ONLY TO THE EXTENT OF ANY RIGHTS HELD IN THE LICENSED WORK BY THE LICENSOR. THE LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MARKETABILITY, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU. 6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 7. Termination This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License. Individuals or entities who have received Collective Works (as defined in Section 1 above) from You under this License, however, will not have their licenses terminated provided such individuals or entities remain in full compliance with those licenses. Sections 1, 2, 5, 6, 7, and 8 will survive any termination of this License. Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above. 8. Miscellaneous Each time You distribute or publicly digitally perform the Work (as defined in Section 1 above) or a Collective Work (as defined in Section 1 above), the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License. If any provision of this License is invalid or unenforceable under applicable law, it shall not affect the validity or enforceability of the remainder of the terms of this License, and without further action by the parties to this agreement, such provision shall be reformed to the minimum extent necessary to make such provision valid and enforceable. No term or provision of this License shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party to be charged with such waiver or consent. This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You. There are no third-party beneficiaries to this Licesnse. You waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this License. You agree to pay all reasonable attorney fees and other costs incurred by Your breach of this license. This agreement will be governed and construed in accordance with the laws of the State of Florida without regard to its conflicts of law provisions. You agree to submit to the personal jurisdiction of the state and federal courts located in Palm Beach County in the State of Florida, and any cause of action which arise from use of this web site or from interpretation of these terms and conditions must be filed in the state and federal courts located in Palm Beach County, State of Florida. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions. Any remaining provisions shall be given effect to the fullest extent possible. Need more news? visit FeedSyndicate for all of your content needs This is a BETA service and subject to change or cancellation. Recent Posts Most Popular Comments Recent Comments Popular Threads Advertisement Advertisement [ CLOSE ] --> [ CLOSE ] [ CLOSE ] [ CLOSE ] Submit News | Privacy Policy | Terms of Use | Contact Us | News and Content Feeds | Journalism Jobs Follow AHN on Twitter AHN Social News connects you with friends and the news © 2011 AHN All Rights Reserved | Hosted on the NewsBahn™

Other News on Thursday, 15 September 2011
Suspected N.Irish nationalists attack police homes |
Ex-Guatemala president fights extradition to U.S |
J. Cole to kick off MTV's "Sucker Free Road to Release"
Scarlett Johansson contacts FBI over allegedly hacked nude photos
Alex Gonzalez blast in seventh powers Braves past Marlins
Wife of Stockholm suicide bomber arrested in UK |
CBS renews Big Brother for another season
Palestinian state-building drive threatened: U.N., IMF |
Florida home can trade electricity for sunshine
Supreme Court to decide limits on police use of GPS tracking
Rick Perry's surge over GOP field continues
Stocks rise in afternoon trading on mixed signals from Europe
Floyd Mayweather Jr. can't promise excitement against Victor Ortiz
Alarmed West dismisses Iran nuclear charm offensive |
Final oil spill report berates BP, contractors
Iran judiciary denies U.S. men's release is imminent |
Facebook to delay IPO until late 2012: report |
Developers get early taste of Windows 8 |
Student leader censured over profane, disparaging tweets |
Verizon says storms, strike cost it up to $250 million |
Former Kleiner partner starts social networking site Erly |
Charlie Sheen to Matt Lauer: Tiger Blood was silly |
Few sure winners seen at the Emmy Awards |
Winehouse Foundation launches on late singer's b-day |
Scarlett Johansson naked pictures leaked on Web |
Polish drama In Darkness sheds light on Holocaust |
For Michelle Yeoh, The Lady is role of lifetime |
Afghan attacks show Pakistani-based militants' role |
U.S. warns Pakistan after suspected Haqqani attack |
UK and French leaders to visit Libya |
Top Leafs prospect Jake Gardiner has learned defense quickly
Belgian parties break deadlock, edge towards government |
U.S. men to be freed soon with Talabani help: Iraqi envoy |
Girls Gone Wild founder wins gambling debt case against Vegas casino
African Islamist groups seen as U.S. threat: general |
London transport fares hiked effective Jan. 2012
Analysis: Handicapping Health Care Lawsuits, And The Truth-In-Labeling Factor
Exclusive: Belarus suspected of helping Iran skirt sanctions |
Virginia school board faces suit for displaying 10 Commandments
Mother of Bears linebacker Urlacher dead at 51; unexpected but no foul play suspected
Armored Syrian forces storm towns near Turkey border |
WNBA enjoys slight surge in popularity; attendance, TV ratings rise
Female journalist shot, seriously wounded in Galkacyo
U.S. urges Myanmar to make genuine reforms |
Toronto trip-up: Blue Jays play a little spoiler as they top Red Sox
Groupon IPO back on track: report |
Investors fail to bite at Microsoft Wall Street pow-wow |
Huawei targets enterprise deals at $7 billion by 2012 |
Japan robot to attempt Hawaii triathlon |
U.S., Australia to add cyber realm to defense treaty |
SAP subsidiary pleads guilty in Oracle case |
Twilight trailer reveals vampire baby on the way |
Michaele Salahi abducted? No, just on a Journey |
Nicolas Cage awoken by naked man with Fudgesicle |
In would-be Palestinian state, a dose of reality |
Al-Malki, PA officials paint U.S. as loser in Palestinian UN gambit
Turkey says can send warships to east Mediterranean any time |
Teenage Sexual Addicition Requires Unique Treatment
Crocs Inc. unveils its new golf shoe collection
Versatile Kyle Kendrick will start it off or serve as middle relief for Phils
Al-Jazeera, you’re not alone
Texans back Arian Foster returns to practice; hamstring injury healing
Porn company building underground Apocalypse bunker
Facebook IPO on hold; Groupon IPO on
Japan's Edano wants to see Tepco plan before judging |
Study: Laughter helps beat pain
Stepping up the fight against polio
Denmark's Red bloc ahead in early exit poll |
Explosions shake Yemen capital, blasts in south |
Exclusive: Belarus said to help Iran flout UN sanctions |
RIM outlook, not weak results, to be in spotlight |
HP should reconsider dumping TouchPad: research firm |
Chip in new BlackBerrys opens door to use as ID |
Blackberry would close UK service in unrest if ordered |
Sony yet to grab new Monster Hunter for PS Vita |
Polanski to collect award two years after arrest |
Greece at new risk of being pushed off euro
Bodies of missing Tenn. mom, Jo Ann Bain, and daughter found
Female Breasts Are Bigger Than Ever
AMD Trinity Accelerated Processing Units Now in Volume Production
The Avengers (2012 film), made the second biggest opening- and single-day gross of all-time
AMD to Start Production of piledriver
Ivy Bridge Quad-Core, Four-Thread Desktop CPUs
Islamists Protest Lady Gaga's Concert in Indonesia
Japan Successfully Broadcasts an 8K Signal Over the Air
ECB boosts loans to 1 trillion Euro to stop credit crunch
Egypt : Mohammed Morsi won with 52 percent
What do you call 100,000 Frenchmen with their hands up
AMD Launches AMD Embedded R-Series APU Platform
Fed Should not Ignore Emerging Market Crisis
Fed casts shadow over India, emerging markets
Why are Chinese tourists so rude? A few insights

USD EUR - 1 year graph		BlogMeter 1.01