Obamacare in the Dock, Day Two

President Obama's lawyer apparently had a rough day during oral argument yesterday as the conservative judges on the Supreme Court reportedly ganged up on him and demanded to know whether there were really any limits to the reach of the Commerce Clause. This approach, coming from the Supremes, certainly takes some chutzpah; after all, the Supreme Court has no problem with federal control over the right of an American citizen to grow marijuana in his own back yard, on the theory that the dreaded weed might enter "interstate commerce," and thus subject the activity to federal jurisdiction.

Judge Antonin Scalia, now in his fourth decade (he was appointed by Reagan in the 1980's) of fun and games on the High Bench, weighed in with this when Solicitor General Donald B. Verrilli, Obama's lawyer, sought to explain the government's right to force a purchase of private insurance by an individual citizen in order to support the cost-sharing scheme of Obamacare. The theory being, according to the Obama Administration, that entering the health care system is not really some remote possibility; it's an absolute certainty, so the government is merely "anticipating" the inevitable "commerce" which results and providing a means to pay for it.

Justice Scalia discussed the universal need to eat.

“Everybody has to buy food sooner or later, so you define the market as food,” he said. “Therefore, everybody is in the market. Therefore, you can make people buy broccoli.”

This may give a suggestion of the dorm-room-bullshit-session nature of learned discourse at the highest court. It all seems so rarefied, so controlled by "precedents" and "statutory construction" and "canons of interpretation" and the rest of it, but at base it's just a bunch of mostly old guys and women making shit up as they go along.

Broccoli? I know that Antonin Scalia is positively in love with himself and holds his own brilliance in the highest possible regard, but this is a very stupid analogy. Yet I imagine beat reporters from the New York Times and Washington Post will be citing this dumb example as yet another instance of Scalia's matchless legal genius.

To deconstruct this idiocy very quickly (Verrilli apparently had problems with it because, understandably, he was nervous and shaken by all the hostility): the federal government does regulate food, Tony. It's called the Food & Drug Administration. The federal government says it can regulate food because it's in interstate commerce precisely because people buy it and it's shipped across state lines. But the Commerce Clause is subservient to the Necessary and Proper Clause, which controls the kind of laws Congress is supposed to pass; to wit, those that are necessary and proper. So the right question is, is it necessary and proper for the federal government to dictate the precise foods which people should eat?

Even Scalia should be able to see the difference between government-mandated broccoli buying and the attempt to fix a broken national healthcare system by applying an insurance mandate. So Scalia's diversion isn't really the fun issue; the fun issue is the French Existential argument, as detailed in the last post about this issue, which recalls the philosophical musings of Jean-Paul Sartre in Being and Nothingness, or the contemplations of the Absurd by Albert Camus in The Myth of Sisyphus. Yes, oui, c'est la seule chose intéressante! Also redolent of a Zen koan: what is the sound of one hand not reaching into a wallet to buy insurance?

Agreed, it's totally ridiculous for something like this to go off on a point of such silliness. The Corporate Judges (Scalia, Roberts, Alito, Thomas, usually Kennedy) are of course torn by conflicting loyalties. One of the things they must like about Obamacare is that it forces millions more Americans into the waiting, untender clutches of the merciless private health insurance industry. There's not much these Big Business shills like more than that. Yet the chance to pretend to a precious Conservatism, and oppose the reach of the federal government into yet another cranny of our private lives! They like that, too, along with a chance to deal a death blow to President Obama's Signature Piece of Shit Legislation.

So much to love, and seemingly so little time. One cold comfort we might take: Obamacare is not really scheduled to kick in until 2014, and since the Democrats (and especially Obama) have never had the political courage to increase federal revenue by, at the very least, rolling back the never-expiring "Bush tax cuts" and allowing the top marginal rate to float back up from about 35% to 39.6%, there is absolutely no way to pay for this boondoggle. It just isn't going to happen. When it was passed, we had not really seen that the federal budget was locked into a more or less permanent 40% shortfall. The existing entitlements, Social Security and Medicare, are already in negative territory; the government's solution is to add a huge third program, without finding a dime of additional revenue to pay for it other than forcing cash-strapped Americans to buy insurance which they may or may not be able to afford, and which they may or may not feel they need.

I sense that this sucker is going to go down because a Supreme Court which leapt at the chance to elect George W. Bush sees a similar chance to deal Obama a major setback in an election year, and if Romney is elected, the Corporate Junta on the bench can look forward to another fellow Torquemada joining them in chambers when Justice Ginsburg inevitably retires.