Deep Breaths

Cartoon by Mike Luckovich, Atlanta Journal-Constitution.

I am coming out of my blinding rage at the conservative wing of the Supreme Court (slogan: “we are the precedent we seek”) in the wake of this weeks arguments on the Patient Protection and Affordable Care Act and have stepped away from the ledge.  I think, as many people are saying, it’s pick ’em as to whether ACA survives intact, with a non-zero chance that the whole bill gets tossed out.

First, the disclaimer: I am not a lawyer.  So take everything below with a grain of salt. Or two. However:

I guess I am stunned that there is significant – much less any – danger that a this bill could get thrown out based essentially on semantics.  Because there is no doubt that Congress is constitutionally empowered to impose a tax, and there is likewise no question as to its ability to create a special break from that tax for people or institutions which act in a certain specified way. (Just ask the oil companies!)

Had the authors of PPACA set up an “uninsured patient tax”, with anyone who buys qualifying insurance exempted from said tax, the lawsuit against PPACA would be dead in its tracks.  Now, there might be states rights claims against the Medicaid expansion, and I suppose one could argue that the state exchanges infringe on states rights, as well. But those seem like huge leaps.

Instead, the law was structured with a mandate, enforced by a penalty.

It is important to note that, substantively, there is no difference between this and what I described above.  Individuals making identical decisions about whether to buy insurance would face the same financial incentives and burdens either way.

But because the law, semantically, features a requirement as opposed to an incentive, it gave the right side of the bench a hook.

Smarter people than me have expelled ay more words than I will on this subject.  And there’s been a lot of tea-leaf reading going on, based on what Justice Kennedy said toward the end of day two of oral arguments. Where it sits now is that there are four solid votes to uphold – Justices Breyer, Ginsburg, Kagan, and Sotomayor – and three to overturn – Alito, Scalia, and Thomas. Roberts is likely tilting to overturn, but if Kennedy votes to uphold, he might bring Roberts along for the ride.

And so it comes down to Anthony Kennedy.  Perhaps he will feel some small pull of humility, and not demolish Obama-Romneycare in one fell swoop. This is, however, the man who in one breath noted that while there was no data measuring it, he was on safe ground in saying that some women later come to regret their choice to abort a child, so humility may not be a governing principle at play.

It’s depressing enough that Scalia – whose brilliant is so dazzling we mortals can’t begin to comprehend it – was spouting GOP talking points during oral arguments.  And that one of the justices sitting on the case is married to a woman whose work involved overturning PPACA. (See also the brilliant Pierce on the burden of being Nino.)

But what’s truly disheartening is the sense that, if it were President Romney, and he had put the Massachusetts model to work nationally, we probably a) wouldn’t have so many – if any – states attorneys-general lined up to fight it and b) there’s very little doubt that the court would uphold it. This is, after all, the health reform plan essentially created by the Heritage Foundation, for crying out loud.  They applauded Romney’s efforts in Massachusetts, praising individual elements, like the mandate and exchanges, that they later opposed when they were being proposed by a Democrat and passed by a Democratically controlled congress.

The mistake many “experts” made before this case was heard was in thinking that the right flank of this court is encumbered by any respect for judicial restraint. They proved in in Bush v. Gore, and, shockingly, in Citizens United, actually expanding the case before them.

A lot of people got down on Solicitor General Donald Verrilli for fumbling his oral arguments this week. But I’m with John Cole on this one: if the Supremes want to overturn health care reform, they’d do it even if the ghost of John Marshall came back to defend it.

There aren’t a lot of ways that I long for the simple, purer times of the 50’s, or the turbulent 60’s. But there is this: I miss the Warren Court. I miss the days when the willingness of the Court to protect individuals from overreaches of government power was what passed for “judicial activism”, not finding ways to protect poor corporations from the burdensome hand of the federal government or those pesky individuals who stand up for their rights under laws Congress has passed.

Beyond that, and only somewhat related, I consider it a continuing outrage that Clarence Thomas sullies the seat that was once occupied by Thurgood Marshall, and think that may be George H.W. Bush’s worst Presidential legacy.