March 26, 2012

Obamacare in the Dock

In order to settle a dispute among various federal courts of appeal in various circuits, the Supreme Court has taken up the question of the constitutionality of the Affordable Health Care Act, known colloquially as "Obamacare." At the heart of the cases bearing on the issue the Supreme Court will decide is this point: is it constitutional, under the Commerce Clause of the Constitution, for Congress to order American citizens, on pain of a fine or penalty, to purchase health insurance from private insurance companies in order to "spread the actuarial risk" and make the whole scheme work?

I think the first thing to realize is that "the law" bearing on the question does not matter. The Commerce Clause is sort of the Swiss Army Knife of Congressional power. It's been used to make sure lunch counters in Alabama are open to all races, it's been used to build the Interstate Highway System, it's been used for everything Congress wants to do. When Congress can't find clear authority for exercising its jurisdiction over something that looks kind of local, Congress sends in the Commerce Clause.

The Clause itself looks pretty innocuous: Article I, Section 8, Clause 3: " To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." So what does that mean? Well, it means pretty much what anyone wants it to mean. You might think that it would enable the federal government to do things that only affected trade or travel between states, and not matters that were purely within a single state, and that's certainly an innocent and understandable mistake to make, because the Clause does sort of read that way. But you see, unlettered legal scholar that you are, you are not seeing that things that go on within a single state can nevertheless have an "effect" on interstate commerce, and this gives the federal government license to do more, much more, than otherwise meets the eye.

Actually, the subject of national health care is so vast, so huge a component of American fiscal concerns (it's about 20% of total GDP, after all), that deciding whether it's a matter of "interstate commerce" is really a no-brainer. If it's not, then the hundreds of Mickey Mouse things the feds regulate under the guise of the Clause would surely go right out the window. So I would not expect the Supreme Court to spend a lot of time with the argument that issues of national health care are not within the purview of the Interstate Commerce Clause. I think that one's a gimme.

Leaving the truly contentious issue, the Achille's Heel of Obamacare: Can the federal government force you to buy a policy from Blue Shield, and levy a fine against you (empowering the IRS as its bill collector) if you don't cough up? While the issue will be presented to the Supremes in a couple of different ways, that's really the crux of the case. The anti-Obamacare faction has framed the question existentially, in a way: does the Commerce Clause cover a "non act?" That is to say, does the federal government have the right to regulate a person's "inaction" where buying health insurance is concerned? A person is sitting at home in suburban Chattanooga, tilted back in the Barcalounger, taking in the latest from Sean Hannity, not buying insurance. Can the federal government regulate that? It may sound like sophistry (most law is, after all), but a couple of key Circuit Court decisions have been decided on that very Sartre-sounding basis.

Obamacare is an ugly-ass contraption, a long, convoluted, windy, complicated, bureaucratic nightmare of a piece of legislation, exactly the kind of statutory Frankenstein we should expect from the coven of frauds and pretenders who infest the Capitol Building. Neither Obama nor Nancy Pelosi had the guts to really fix the totally broken health care system, and the Republicans, it goes without saying, would not fix health care even for their own dying mothers. As hostages to the fate of Obamacare, Congress threw in a couple of good ideas, forcing the insurance companies to take all comers without regard to preexisting conditions and outlawing the insurance industry's sociopathic practice of dropping insureds in the middle of life-and-death treatment because the insureds had the temerity to submit a claim for their Stage IV cancer. These provisions might stand even after the Supreme Court decision, but if the "mandate" to buy insurance is struck down as unconstitutional, then the whole edifice collapses in a Rube Goldberg pile of cogs, gears, springs, buckets, flywheels and probably hamsters, because those are usually found somewhere in a Rube Goldberg device.

To simplify the issue even more, all depends on Justice Kennedy, in his usual role as "swing vote." I think that Alito, Scalia, Thomas and Roberts would love to see Obama take it on the chin, and will probably find some incomprehensibly involved and complicated legal reason that the "mandate" must be struck down. I imagine Scalia will be the one to write this opinion if it is that majority. The liberals (the four judges other than Kennedy -- Breyer, Kamen, Ginsburg and Soto-Mayor) will probably vote to uphold it and will regard the essential argument against the mandate as a bit of existential silliness.

I don't really care, personally. There is nothing to love in Obamacare, and, as is increasingly obvious, I have tired of all huge nationalistic projects which are just simply too complicated, too unaccountable and too too-everything to provide any help to actual human beings. I would prefer to see a system where doctors must accept as legal tender, for any form of medical service from removing a wart to a quadruple bypass, the gift of a cow or pig or a bushel of tomatoes.

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