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.

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.

Strike Two for Obamacare

Judge Roger Vinson's opinion in the Florida case striking down the Obama health care law is a far more serious problem for the Democrats than the previous district court ruling in Virginia reaching the same result. No doubt the case of McCollum vs. Dept. of Health & Human Services was helped along by the forum shopping available to state actions. The Florida Attorney General chose Pensacola, in the Redneck Riviera, as the venue and probably hoped that Judge Vinson, a Reagan appointee, would wind up with the case. All of this went according to plan.

McCollum (wasn't he one of the lawyers who appeared on TV regularly during the Gore-Bush Florida thing?) was joined by 25 other states in challenging the constitutionality of the law. Most of those states are among the group you would expect to join Florida, but there were a few surprises, such as Maine and Washington. The challenges to the law were fairly sophisticated; in addition to the Zen-like question framed in the Virginia case, is the not doing of something an "activity?", a second argument, which I think is actually more compelling, was involved in the plaintiffs' complaint. Namely, if you force the states to expand Medicaid (as the act does) by expanding the boundaries of poverty to include those not currently eligible for Medicaid, but do not provide the funding for the expansion, is Congress engaging in unconstitutional coercion of the states in violation of the Tenth Amendment (the "states' rights" Amendment). I wondered about that myself. Bush's No Child Left Behind program suffered from the same problem - a massive mandate from Congress impinging on local budgetary decisions about schools with no earthly way to pay for it all.

Judge Vinson essentially passed on the "coercion" argument and stated that at the present time it's not possible to tell whether the states will ultimately benefit from Obamacare or go broke trying to comply. Since he was ruling on a Motion for Summary Judgment (a proceeding without a formal evidentiary trial), he gave that one to the DHS on a TKO.

As to the Zen koan, however, Judge Vinson was much more thorough and scholarly than the earlier Virginia judge, and cited numerous Commerce Clause cases which dealt with the "activity-nonactivity" dichotomy involved in Congressional authority to regulate. Essentially, as I read his long, 78-page opinion, Vinson essentially forced the DHS and the U.S. Government to admit (and remember, the U.S. team is ultimately headed up by Eric "Place" Holder, perhaps the most passive Attorney General in the history of the Republic) that there are no cases where Congress regulated what is so clearly a "non-activity" or a "non-decision," and he did a very good job (bordering on masterful) of making ridiculous the DHS's strained efforts to demonstrate that not buying health insurance is an "activity," or that the "activity" can be supplied by Congress fining or penalizing someone who chooses not to buy health insurance. Vinson pointed out that if the second criterion worked under the Commerce Clause, then Congress could regulate anything so long as they attached a penalty to not doing it. Touche, with or without the accent.

Since Judge Vinson found that the plan can't work at all without the individual mandate to buy insurance, he declared the entire law unconstitutional (nonseverable, in law-speak). This again is an extension of the previous ruling against the DHS.

I would say that in some ways the ruling opened my eyes. I did not realize on what shaky Constitutional grounds those hacks in the Democratic Party were operating on in coming up with this massive gift to the insurance industry, the individual mandate requiring the purchase of a private commercial product from a private corporation on pain of a federal penalty. It turns out they were venturing into the unknown in their craven desperation to avoid confronting the real and obvious solution: a single-payer system where you just get rid of this whole merciless, stupid idea of profiting from the illnesses of American citizens.

As I said before, who knows what the Supreme Court will do with this thing? Scalia is a "strict Constructionist" so he might favor a narrow reading of the Commerce Clause. Chief Justice Roberts and Justice Alito are corporate stooges who probably like the idea of an expanded market for their friends in the insurance industry. Thomas will do what Scalia does. The rest will probably be pro-government, except not necessarily Justice Anthony Kennedy, who will decide the fate of Obamacare, as he decides the fate of every big decision divided along partisan lines. It all depends on what he has for breakfast the day the case is decided.

Obamacare hits a snag

Few Constitutional provisions get half the workout of the Commerce Clause, that Article I, Section 9, Clause 3 prerogative of the federal government

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".

This is the essential wellspring of the power of the central government to get involved in state matters where the Constitution does not confer primary jurisdiction on the feds (for example, the exclusive federal jurisdiction over bankruptcy, or the law of the high seas, or America's biggest business, war). As a good, die-hard liberal, I have mixed feelings about the overuse of the Commerce Clause. On one hand, without the liberal use of the Commerce Clause, it would have been much harder to rein in the abhorrent practices under the Jim Crow laws. "State action" (such as public education or voting rights or access to the courts) is governed by the Due Process and Equal Protection Clauses of the 5th and 14th Amendments; but private prejudice, such as Rand Paul's desire to return to the days when a black family caught out in the rain and seeking shelter in a Kentucky motel could be turned away as an exercise of the motel owner's "freedom" (his freedom equating to the family's consequent need to drive on up the road to, oh say, Pennsylvania). Or lunch counters in Montgomery, Alabama, or a swimming pool in Macon, Georgia. The Civil Rights Movement was given a tremendous boost by expansive interpretations of the Clause.

On the other hand, I'm also a "small d" democrat in basic agreement with Thomas Jefferson's idea that the government is best which governs least. A pervasive, all-power central government can guarantee civil liberties, but it can also threaten them through NSA spying, TSA sexual assaults at the airport, or an out of control military-industrial complex. No one in this day and age can convincingly argue that the central government is too small.

Along comes today's ruling by a federal judge in the 4th District in Richmond, Virginia holding that the mandatory purchase of medical insurance under the recently-passed health care bill is unconstitutional, to wit, not permitted by the Commerce Clause, and thus an overreach by the central government into areas of state control. Essentially, Judge Henry Hudson concluded that an individual's decision (and resultant inaction) in not buying insurance cannot be "interstate commerce" because the individual...didn't do anything. The language is fancier than that, of course, but that is the essence of it, metaphysical as it may seem (what is the sound of a wallet not opening?, and other Zen koans). Thus, the federal government has no right to force, on pain of monetary penalty, an American citizen to interact with a private insurance company in order to make the actuarial basis of Obamacare viable.

There is, of course (if your mind runs in the same channels mine is most comfortable) a delicious irony in all of this. Had the spineless Dems and the Lawn-Chair-in-Chief offered a public option as part of the solution to the national disgrace of American health care, this problem would not exist. An "option" to buy insurance from a government plan not only (a) would have acted as a serious brake on out-of-control, predatory pricing by the insurance cartel, but (b) is by its very nature proactive, positive action and thus, of course, covered by the Commerce Clause. The federal government can constitutionally regulate the purchase of health insurance on an open, interstate exchange where the government is itself the vendor.

I don't know whether this decision will hold up or not. It seems a little too cute by half. A Zenesque interpretation's survival all the way through the Supreme Court seems iffy at best, for whether or not the individual's inaction is interstate commerce, there is little doubt that the whole business of medical insurance most definitely is (hell, if the feds can regulate the sign-in desk of the R-U-Lonely Motel on the outskirts of Nashville because it's in interstate commerce, they can regulate this), and the mandatory purchase requirement is part of that entire scheme. The judge (a George W. appointee) didn't like the Big Government plan, obviously, and did what judges can do with the vague language of the Constitution and the sketchy guidance of case precedent: he made things turn out the way he wanted them to, and he didn't like the coercion involved in making people buy products from private industry (I don't really like it much myself). The Department of Health & Human Services, as defendant, pointed out that many states make residents buy car insurance if they want to drive, but Judge Hudson distinguished these cases by noting that one can avoid buying auto insurance by not driving, whereas, one has to buy health insurance under Obamacare by virtue of one's "very existence." Hudson might be in the wrong field; he should probably be teaching existential philosophy at the Sorbonne.

Interestingly, however, the Virginia trial court where this occurred (in a proceeding known as a Motion for Summary Judgment) is part of the notorious Fourth Circuit, which occupies the same approximate position for conservatives as the Ninth Circuit (based in San Francisco) does for liberals. It was not accidental that the Bush Administration, when it wanted to deprive an American of constitutional rights (such as Jose Padilla), was careful to incarcerate them within the compassionate confines of the Fourth (Padillia was in a Navy brig in South Carolina). That way the prisoner had to fight his way up through the brutual jurisprudence of the trial courts and appeals court of the Good Ol' Fourth, Confederate flag waving in the background. Ah such glorious memories of our Gulag past! Aren't you glad Obama was quick to reverse all this nonsense? Oh that's right, he didn't.

Thus, the appeal by the Department of Health & Human Services will be to that same Fourth Circuit Court of Appeals, where the Bush-Cheney-Rumsfeld gang had what little judicial success they enjoyed in their war on the Constitution. There is another Virginia case from Lynchburg on essentially the same issue which recently went the other way, so the Fourth Circuit will have to decide which one they like the most. Make no mistake, judicial decisions interpreting vague language such as the reach of the Commerce Clause are far more political than "legal," whatever that may mean.

Ultimately, of course, this mess will wind up in the weird clutches of the Roberts Supreme Court. I don't know how the Robed Rascals will handle this one. One one hand, the court is conservative and sort of believes in states' rights (except where they have the opportunity to reinterpret state election law so they can appoint a president; see, Bush vs. Gore). On the other, these people are in the District of Columbia and hate giving away power. But I would surmise, just to thwart Obama and make him sorry he ever criticized the Citizens United case during last year's State of the Union, that Roberts, Alito, Scalia and Thomas might go with an anti-Obamacare ruling. Breyer, Ginsburg, Sotomayor and Kagan would probably go the other way. So we're where we always are: Judge Kennedy, essentially, is the Supreme Court.

It's what I've always loved about the law: it's so rigorous and scientific.