27 June 2012

Dusting off the crusty 8-ball.

Tomorrow SCOTUS issues its landmark decision on the Patient Protection and Affordable Care Act, "Obamacare."

To make the bold prediction, you need to consider:

A. The judge's voting histories, and

B. The issues presented.


So let's have at it, shall we?


A. If anything approaches a certainty,  it is that the decision will not be unanimous, or even close.

Like knowing the sun will rise tomorrow in the east, the conservative RATS (Roberts, Alito, Thomas and Scalia) will vote as a bloc. The four moderates* (Breyer, Ginsburg, Sotomayor and Kagan), who do not routinely vote as a bloc to the extent the RATS do, in this case are very likely to vote together. 

That means — as with most controversial cases — the Supreme Court is really just one judge: Anthony Kennedy.** 

Justice Kennedy is a staunch conservative, but not an extremist ideologue like the RATS. That means he is, very occasionally, willing to cross the aisle and find some wisdom there. Indeed, upon the retirement of Justice Sandra Day O'Connor, Kennedy assumed her mantle as the Court's "swing voter." 

Which is all very nice and reassuring...until you put it in context. 

O'Connor was and is an Arizona Republican. (I think we all have a pretty good idea of what that means anymore). She was a party official before she was appointed by Reagan and once on the bench, she almost always voted alongside the odious archconservative Justice Rehnquist. Even so, O'Connor was ever painted as the court's "moderate" during the period that Kennedy was a reliable part of the Rehnquist Court's solid conservative majority. 

In short, Kennedy isn't any more a "moderate" than O'Connor was. Indeed, he's actually less of a moderate. 

He almost always votes with the RATS on the landmarks. I expect he will again.


B. There are four major issues the Court will decide:
1. Is the expansion of Medicaid congruent with American federalism?
2. Does Congress have the power to require the individual mandate under threat of penalty?
3. Must we wait until the individual mandate penalty is imposed before we decide if it's permissible?
4. If the mandate is impermissible, is the entire law void?
1. Conservatives are deeply, deeply besotted with anti-federalism and "state's rights" — unless and until a state is doing something progressive, like permitting medical marijuana, or assisted suicide for the suffering terminally ill, or trying to stop corporations from stealthily buying legislatures. Conservatives also find something uniquely repellant about spending public money on the public — they think public money is better spent on making Iraq safe for Chinese petrochemical interests, covering the losses racked up during their Wall Street friend's periodic gambling benders, subsidizing profitable multinational corporations, and Jesus.

2. Can Congress act in response to a completely manufactured public health financial crisis? Well...duh. Of course Congress can require the individual mandate. But this one really makes conservative heads asplode. They'll invent some shit about the framer's intent that the poor be sacrificed or further impoverished in the interest of health industry profiteering, and Scalia will, no doubt, provide some historical fiction to back up this fanciful notion. I expect this to be the bitterly comedic high point.

3. In reality, they probably ought to postpone on the doctrine of ripeness. But I expect they'll make the point that the penalty is so meager that it's not functionally a penalty at all, and they'll assume as a certainty that many good and righteous godfearing Americans will defy the mandate and take the penalty so they can sue the government while they imagine they're a modern Thomas Goddam Paine. Not that that's a good argument, but they need to get to the place where they can kill the mandate, so they will somehow.

4. The Affordable Care Act doesn't have a severability clause by omission or design. That means if they kill the mandate, the whole thing can collapse like a wet taco. Would the conservative majority invent a severability clause to save any of it? Unlikely in the extreme.


So my crusty prediction is that Obamacare dies tomorrow, but the Court wishes all you uninsured sick people the best of luck, and don't forget to drop by and say "hi" when you're in federal bankruptcy court if you survive. w00t.

I hope I'm wrong. I really do.

America's current laissez-faire, invisible-hand, libertarian objectivist I-got-mine-so-fuck-you approach to heathcare is as immoral as it is economically unsustainable.

Given that the self-styled public servants within our Congress and judiciary feel entitled to participate in reliable, affordable, publicly subsidized healthcare for their entire lifetimes, I cannot fathom how they can also believe the public they serve should just do without, or that we should fend for ourselves against corporations who have every incentive to squeeze us until the money runs out, then walk away leaving us fucked.

If unhealthy Americans got the same level of political concern conservatives provide to nonexistent, unwanted, nonviable fetuses, we could solve our healthcare crisis in a couple of years.

But we won't. And that's what's really sick.


* While "liberal" is the literal opposite of "conservative," our Supreme Court is comprised of political conservatives and moderates, not liberals. It would be impossible to make a serious argument that even the most liberal member of the court (probably Justice Ginsburg) reflects and embodies the values of America's progressive social liberals in the same way any of the court's conservatives profoundly reflect and embody the values of America's very hardline conservatives. She just doesn't. Ginsburg is middle-of-the road at best. America's actual liberals have no representation or voice on America's Supreme Court.


** It also means essentially half of the court is, as usual, completely, utterly wrong. How fully half of such an erudite, elite panel of jurists can be so relentlessly, inexorably incorrect despite having essentially the same legal credentials and viewing the same fact pattern is a mystery I leave for you to untangle, dear reader.

3 chimed in:

Mo Rage said...

Great, great post.

And great to have you back and hear from you, of course.

Mo Rage said...

and for what it's worth, I, like you, think the SCOTUS will knock the Health Care Reform Act down

but hope otherwise.

Anonymous said...

"America's current laissez-faire, invisible-hand, libertarian objectivist I-got-mine-so-fuck-you approach to heathcare is as immoral as it is economically unsustainable."

As a long time libertarian, I take objection to that generalization. Not all libertarians have that attitude. In fact, most libertarians I know don't have that attitude at all. If anything, we stand for individual liberty - for gays to marry, for the right to choose, and for nonviolence...and coercion in all its forms is inherently violent.

I had no faith that the court would overturn Obamacare. I was surprised, however, that Roberts was the swing vote.

What I found troubling about the decision was that the majority cited taxing power as their authority. I suppose this now means that the government can threaten to tax us whenever we refuse to purchase the thing they coerce us to purchase from whomever they insist we purchase it from. Seems a bit expansive to me, even from a liberal viewpoint. What happens when a GOP president is in office and uses this power?

What's more, in the 2700 pages of legislation, never once is the fine attached to failure to comply with the mandate referred to as a tax. It is referred to as a penalty. It cannot be both and there is zero precedent that has ever held a penalty is also a tax. To treat it as such is for the court to rewrite the legislation, and is a form of judicial activism that so many conservatives and liberals alike routinely decry. Whatever happened to interpreting a statute according to its plain language? Is that not the benchmark of statutory interpretation?

For someone who almost died at the hand of western medicine in my early 20s, I refuse to support big pharma, big hospitals, big medical, and insurance companies. I negotiate my medical costs out of pocket with alternative care providers - acupuncturists, chiropractors, yoga therapists, and herbalists...and these days, a midwife. I'm healthier than I have ever been, spend less than I would if I had to pay for insurance, and get better quality care. Now I am forced to buy insurance I don't need, don't want, and don't believe in and it doesn't even cover the types of care I use.

There is an assumption that the ONLY solution to rising healthcare costs is socialized or government-regulated medical care systems. But there are so many other options, and no one in this country is ever denied medical care. You can thank President Reagan for that. Did anyone ever consider cutting out insurance companies - the middle man - to reduce costs by dealing directly with providers and negotiating costs directly with billing departments? I've done that my entire life and its worked beautifully.

But forcing folks to buy insurance or face a penlty collected by the IRS - that has now been categorized as a tax - will result in those who refuse to pay facing prosecution for tax evasion, which carries a huge fine and federal prison time.

And, by finding the expansion of Medicaid unconstitutional, they have effectively trapped millions of low and middle income Americans who don't qualify for a subsidy to help pay for the insurance, yet, don't have enough disposable income to buy the insurance or afford the penalty. How is this helping the middle class and the lower income folks?

Don't be surprised when a bunch of independents head to the polls in November and vote GOP out of spite and retribution. The Dems would be premature to do a victory lap until after November.

-Aubrey