A joyful conservative yelled it. They've abolished the insurance mandate. Obamacare is going down. A friend of his said calmly, I'm very happy for you. Sure enough, CNN and Fox carried headlines. Obamacare was finished.
As corrections came through, and it turned out the decision was upheld, memory turned to the debate, such as it was, back in 2010. The debate, for the most part, was not what you would call nuanced. It was about tricornered hats, death panels, and keep the government out of Medicare. It was a limbo discussion from the right, how low can you go?
The Tea Party geezers (okay, okay, my fellow geezers) showed in force, financed behind the scenes largely by insurance companies. Every once in a while, an organizer would forget and wear a company shirt, logo and all. A lot of heat, occasional violence, racial epithets - plain, in the open, and roundly denied. Racists? They ain't no racists here.
When it finally got to the Supreme Court, the Constitutional tide had turned. The Obamacare lawyer seemed to have had too many Nyquil doses the evening before. And the judicial hostility was unjudicious.
Antonin Scalia has been in decline for a long, long time. Four years ago, he appeared on national television, explaining that torture by police was Constitutional. You see, the Constitution prohibits Cruel and Unusual punishment. Torture is not punishment unless there is a conviction for a crime. As long as a suspect is legally innocent, it is okay to administer torture because it isn't punishment. As soon as a guilty verdict is announced, torture is unconstitutional. Yeah, that's what he said, and that's the logic he used. It seemed, four years ago, like a case of agile mental gymnastics, a skilled sophistry that could justify anything.
By oral arguments on Obamacare, Scalia had plainly deteriorated. Gone was the intellectual ballet, replaced by a drooling rant that could have been written for him by a right wing radio announcer from any late night station. Had he not had a history, it would have been easy to imagine him having gotten his law degree from sending in boxtops. He might have held his own, barely, arguing from the corner stool of some neighborhood bar. At least he didn't slur his words. Justices Alito and Kennedy were coherent. Justice Thomas would have been as well, had he spoken.
The Supreme Court was finally tied into a square knot by Chief Justice John Roberts. Holding the center, Justice Roberts was threading a very strange needle. It was a case of the non-Tax, almost-tax, tax.
The Obama administration and the opponents of Obamacare disagreed on lots and lots. But they were united on whether the insurance mandate was a tax. It wasn't. Opponents didn't want it to be a tax because taxing authority is very clearly with Congress. Nothing ambiguous about it. But a Civil War era statute was also clear. You can't sue government over a tax until the government actually collects the tax. Since the insurance mandate isn't in effect for a couple more years, that would put off any court decision until then. Health care reformers don't want any foot dragging that will last that long. So everybody agreed not to call it a tax.
Chief Justice Roberts pulled away the football, and conservative Charlie Browns across the nation fell down hard. The issue was already before the courts, so it wouldn't get delayed. And taxing authority is clearly with the Congress. That's in the Constitution. Even the demented Justice Scalia would have said so, in more clear headed days.
So Obamacare will be the law. People, real people, will be alive who would otherwise die for lack of proper treatment. Families who would have been forced into poverty will remain whole.
However, however. There is a way for a future conservative legislature to kill the tax that dared not say it's name. Taegan Goddard cites Political Columnist Timothy Carney, although with minor reservations. On matters of taxes, the Senate filibuster rule, used so flagrantly by Republicans, can't be used in return by Democrats. The filibuster is not available to talk to death anything concerning tax rates. So, even though Republicans can't repeal the insurance mandate, the penalty, now held by the court to be a tax, can be lowered to zero. It can be done with 51 Senate votes.
A zero penalty would suit Republicans just fine.
Democrats included the mandate for a reason. Without it, Obamacare would become a death panel. Except the target wouldn't be your frightened grandmother. It would mean the death of those other death panels: insurance companies.
If insurance companies can't discriminate against preexisting conditions, there is no reason for you or me or anyone at all to buy health insurance ahead of time. Why pay a monthly premium if you can wait until you are in the ambulance. Why even buy it then, if you can buy it from your hospital bed?
So nobody would buy health insurance ahead of time. Nobody would buy health insurance until they were making a claim to pay for treatment. So insurance companies would have a lot of money going out for sick or injured people and no income coming in from those who are not yet sick or injured. And what happened to companies with lots of expense and no income? Come on, class, let's not always see the same hands.
Right. Those who said health insurance companies will go out of business can stay and clean the erasers.
Insurance companies will all go out of business and the government will have to take up the slack. A demanding public will see to it.
Republicans can eventually keep the House, and take over the Senate, and reduce the mandate penalty, which is now a tax, down to nothing at all. Then government will take over health insurance in a single payer plan that reduces cost, and health insurance companies will all go out of business. All of them. Out... of ... business.
I think again of those health insurance companies secretly financing frightened Tea Party types as they stormed town meetings and voted right wingers into office. Republicans will never put those health insurance mega-corporations all out of business by eliminating the mandate or tax or non-tax.
But a fella can dream, right?
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Nonsense. Thomas rarely speaks and when he does we are reminded why it is so unusual.
I am very pleased with John Robert’s bogus justification for his decision. I think John may have realized that killing the Individual Mandate alone was impractical, and he had to find a “conservative” reason to justify that. Scalia, Alito and Thomas have never cared what was practical. They know what they want and they go after it.
My respect for Roberts just skyrocketed: not because he is not a conservative. He is. Not because he supports what I consider more fair healthcare. I don’t think he does; but because I think he has a real-world practicality that I did not realize he had, and that will supersede ideology when he deems it necessary.
I downloaded the 193 page pdf, but I have not had an opportunity to read it. The justification I heard attributed to him seemed utterly bogus to me from a Constitutional perspective. I am not prepared to make the case until I review the primary data. After that, if my idea of what he said does not change, get back with me and I will be prepared to do so on the grounds of (Fallacy of Complex Question). How you penalize a rule and the rule itself are two separate legal questions.
However, I have been utterly swamped with work and I missed most news after the decision was released, so I could easily back down once I read the decision.
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