OCTOBER 7, 2011 12:36PM

A Supreme Court Cure for Obamacare

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Wee, The People

The Supreme Court began this term faced with a double dose of dilemma. The Affordable Care Act dispute has reached their doorstep, both parties involved unworthy of entering the chamber. Instead of a simple health insurance solution, the Democrats delivered a political contrivance that has been damned with faint praise of its weak reforms.

The Republican opposition is concerned with ideology, not healthcare. They bring a politically fueled contrivance of a case, hoping to convince the Court to issue an equally contrived ruling.

In the ultimate People’s Court, The People’s concerns are mere small print footnotes.

The Supremes will probably take the case this term, but It would be unfair the blame the Court if it barred entry of this dispute. The mere presence of such popular indifference and political contrivance would stain the chamber.

I imagine the Supremes are thinking: “What’s a Justice to do?” I have a suggestion for how they can fix, not nix Obamacare to everyone's satisfaction. Once they realize how it can be amended to mend it, they should cure and not demur on hearing the case and issuing a ruling.

I'll explain how the fix can be accomplished, but to understand the simple beauty of the solution we must first explore the facts of the case.


Cut, Gut or...What?

While there are other, less critical Obamacare issues, it’s being dragged to the Court by that naughty appendage -- the Individual Mandate. This highly unpopular requirement to buy private market insurance is the star of the show. The questions the parties want the Court to answer are:

  • Is the mandate unconstitutional?
  • If it is, can it be severed from the entire law?

If the mandate is ruled unconstitutional and inseverable the entire law dies, even the popular parts. If unconstitutional but severable, the law lives on as best as it can without the clause it depends upon to apply the elements most Americans accept. If it’s ruled constitutional it retains that curse-blessing quality the public finds confounding.

If the Court shuns the repair and rules on those questions it will have a downside political impact for both sides in this partisan contest.

Adding to the politics is that if the Court agrees to hear the case this term the ruling will come out during the June heat of a presidential campaign summer. If they rule the mandate up or down, severable or inseverable, they will be seen as picking a winner and loser, which will only add to the campaign noise and finger-pointing.


Red and Blue Makes Purplessness

Some may wonder why I refer to this as a political contest, especially those few who think the Supreme Court is strictly about law above politics. There are several reasons. The Court can’t help but render a political decision on a case that is entirely about politics. The Obamacare law is inherently political, StatesPBSorg like all legislative acts, and was passed by Congress entirely on Democratic votes.

The case against Obamacare comes out of Florida, is covered with Federalist Society fingerprints and has been joined by the Republican Attorneys General of 25 other states. The 26ers’ argument is weak, so it relies on the unpopularity of the mandate to help it across the finish line. They’re aiming for political plausibility, not legal brilliance. You can tell that by observing the noise-to-logical argument ratio and their case makes a lot of noise.


The Case For Obamacare:

Take My Whiff -- Please!

Though popular opinion put a Public Option plan on the tee, Congress and the President looked at their campaign chests, decided a mandate pays better and then intentionally chunked the shot. ObamaGolfGettyImages The majority of Americans wanted Medicare, not Obamacare, as a universal system. If they had gotten what they wanted and deserved, this case wouldn't be in court, the Republican House wouldn't be serving Tea and the President's numbers wouldn't be jumping over decimal points.

The case for what is commonly known as Obamacare, a term the President has embraced (message: Obama cares!), is simple. To encourage the insurance companies (commonly known as those bastards) to accept things like ending arbitrary rescissions and pre-existing condition denials of coverage (screw you revenue enhancements), they need as many people as can be had to pay into the system.

That they should be mandated to do so avoids some people deciding to not pay until they need the insurance that, under the new law, can't be denied. The mandate also aims to keep non-payers from cost-shifting the expense of their healthcare by seeking unpaid services in hospital emergency rooms that cannot legally deny them care. This is very similar to the state laws that mandate liability coverage for your car to prevent Free Riders from shifting collision costs onto insured drivers.


The Case Against Obamacare:

It's Evel! Evel, I say!

This case involves two enumerated powers of Congress:

  • To regulate commerce among the several states
  • To make all laws which shall be necessary and proper for carrying into execution the foregoing power.

According to Paul Clement, who argued this before the 11th Circuit Court, the 26er’s case turns on: "whether or not the federal government can compel an individual to engage in commerce." In this case, he's saying if anybody decides to not purchase health insurance they aren't involved in commerce and it’s improper to regulate their behavior. 

As much as I have a perverse interest in the constitutional mechanics of this case, there's no need to peruse precedents as Clement and the 26ers' claim is facially absurd. Obamacare is plainly constitutional, as all Americans are engaged in healthcare commerce.

Insurance is about shared risk and those who buy it are in that insurers’ risk pool. Those who don’t have insurance are simply in the non-paying risk pool and would, without reasonable exception, seek healthcare services if they need them. The greater the need, the greater the want and they have a legal right to it, paid or not, in an emergency room. If unpaid, the cost is shifted to those in the paying risk pool.

Unless we disregard a shared wish for life and its physical quality, or legislate to satisfy the legal rights of the few engaging in masochism, the idea that not paying to cover that risk means people are inactive in the healthcare market is a fantasy. 

Though the 26er team would never Evel Knievel admit it openly, I get the feeling they’re well aware their claim isn’t about an extraconstitutional law, but an extra-Evel Knievel leap across the divide to Sophistan. Once it arrives in Sophistan it stays there, as the rest of their argument shows.                                     



The 26ers’ have certainly sought advice from the Federalist Society’s great legal scholars and litigators. After considering their scholarly case is flying on a right wing and a prayer, they asked the question devout conservatives should: WWJCD?

Indeed, What Would Johnnie Cochran Do? Of course! He would have played to the media and courts with a buzzword. The 26ers settled on: Unprecedented!

The fact is unprecedented has little to do with unconstitutional. I think the Justices will be feelin' the spirit of Cochran as they’re sipping a Un-cola and shifting uncomfortably to adjust their underwear while wondering if this unusual, unfounded, unworthy and untenable un-argument is unending.  JC  Vince Bucci It seems the goal is to get them in a un thinking mood so they’ll agree it’s all unconstitutional.

The other reason is they figure if the Supremes can be convinced the lack of activity is accurate, therefore unprecedented, they might allow the 26ers to offer their unprecedented standard for Commerce Clause interpretation -- this specious creature they call “inactivity.” They're trying to tell the Court that if activity doesn't fit, you must add “it.”


The Slippery Schlep from Sophistan

Limit-y; Paternity; Broccoli!

Healthcare, being foundationally related to life and the primary cause of projected future federal debt (conservative policies being the primary cause of current debt), is unique in the insurance and economic marketplace. If unique, the cry of “unprecedented” loses its impact, as does the idea of a preordained limit to Congressional powers. To buttress the already logically crippled 26er argument, healthcare has to be made equal to other markets.

I’ll take these final parts of the 26er’s argument from the Florida District Court ruling. Judge Vinson is the 26er’s hero, ruling the entire Obamacare law unconstitutional. In his decision’s dithering dicta he repeats and agrees with the argument made in his courtroom and half-baked in the Federalist Society’s constitutional kitchen. This is about a desperate need for wall of Sophistanian monsters to hide the previous absurdities behind.

Good Judge Vinson fears if Congress can regulate inactivity by making some people buy health insurance, there’s no limit courts could apply to prevent Congress sending rampaging beasts to devour American suburbanites and then, adding to the carnage, borrow their lawnmowers and refuse to return them.

For some reason the Federalist Society, 26er group and the Judge have decided to pick on that most beneficial of vegetables -- broccoli. The Judge opines that, absent a limiting principle – a bright line Congress cannot cross – they could require Americans to eat broccoli. After all, it does contribute to health and, if the Individual Mandate is ruled constitutional, federal agents will soon come to your home and cram broccoli down non-voluntary throats.

The problem here is twofold. Broccoli First, it is absurd to think Congress would pass such a law. Secondly, if they keep insisting on using this Nanny State as Mommy Dearest State scenario, it won’t be long until the trial lawyers get on board and an ad like this appears in your kid’s Weekly Reader.

Fortunately, I can help Judge Vinson find the evasive Limiting Principle, but it’s not hiding in the law or courts. To discover it, all he needs to do is run for Congress on an enforced broccoli consumption platform.                            



Slippery Schlep II – The Equal Sequel

Healthcare is to Car as House is to Healthcare as Car is to . . .

The source of his reasoning thus cleared by broccoli’s high dietary fiber, Judge Vinson continues editorializing.

He decides that if, as the Obamacare defense implies, people cannot be reasonably separated from a healthcare market that is having an adverse effect on the economy and debt, Congress can use any mandate to greatly expand its power (assuming they don’t have to be elected). Because the Individual Mandate presumes those required to buy insurance can afford it, he figures Congress can mandate home buying to those who can pay the price and because it boosts the economy. After all, everyone needs shelter, Congress will claim. The same is true of the automobile industry, and doubly so for, as the Judge says:

“Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile --- now partially government-owned --- because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business.”

In a *cough* unique moment of unintentional revelation, Judge Vinson adds:

“I pause here to emphasize that the boogiemonster foregoing is not an irrelevant and fanciful ‘parade of horribles.’ Rather, these are some of the serious concerns implicated by the individual mandate that are being discussed and debated by legal scholars.”  

Not only does the Judge’s reasoning resemble a 4 year old's explanation of how Oogie Boogie Man crawls from closet to under bed after lights out, here he completes the youthful analogy with:

“But Mom, they did it too!”


The Supreme Court Cure for Obamacare

A Peter, in Principle

Fortunately for all concerned, the Court is Mount Olympus and the Justices are robed gods, unbound by Earthly tethers, specious arguments and lower court rulings. MOlympusGoogleImages They can dampen the noise and avoid tripartite shaming by applying a Judicial Remedy; a cure that gives both sides a measure of victory and prevents soiling the Court's reputation. The naughty mandate appendage doesn’t need to be severed, just modified a bit or, Moyle to the point, snipped until it’s properly circumscribed.

Give the 26ers' what they want and also what they say is true already. Following the cures listed below, 2 constitutional interpretive applications under established doctrine are supplied. Justices, I've done the clerk work, all you need do is issue the ruling. Cure Obamacare and make Americans happy!


The New Obamacare Law

Cure 1 -- Satisfying the 26er Mandate Claim

At Last! A Public Option!

To avoid enslaving Americans with the Individual Mandate, the Supremes can rule those who don't want it can opt-out of paying for coverage. To ensure these liberty-loving citizens don't end up tattoo3 violating their implicit vow to not seek medical care at others expense, they will be required to indentify themselves as members of the Opt-Out pool. This can be done with tattoos, preferably the bar code type illustrated here, on the torso to avoid confusion arising from dismemberment. If the Opter is unconcious after being injured, the responding EMTs can use a hand held scanner to confirm name and uninsured status and then avoid violating the Opter's liberty by providing unwanted care.

dnr shirt Some Opters may have religious concerns or fear tatooing infections, so they will wear tee shirts like these to announce their status. Both of these products are for sale now, so click on the pictures to avoid the post-ruling rush. Be sure to inquire about special discounts for conservative and libertarian organization bulk orders.


Carrion, Thy Wayward Some

There will still be some financial considerations, but those are trivial compared to the cost of care. The injured urban Opter can create a health hazard  DeadHumanPickUp--cbs22 by dying and decomposing in a public area. For these instances, federal funding will supply a supplemental grant to local dead animal pick up services. If dying after an unqualified entrace to a hospital emergency room, another subsidy to defray the medical waste disposal costs.

In rural areas, the Opter can be left on the roadside to rejoin nature. What the coyotes don't drag away, the buzzards will clean up.


The New Obamacare Law

Cure 2 -- Making Cars Like Healthcare

Introducing ObamaCar!

Chevrolet-GM-Dealer222 If your uninsured car is wrecked, you will be issued a new ride under the ObamaCar provison of the reformed law. The Obambulance will rush you to the closest  government-private owned General Motors dealership where a cheerful salesperson will hand you the keys to the amb-Robert Young ptgphr car your Obamassistant prescribes.

Can't pay? Don't worry, the costs will be shifted to the buyers who do. The dealerships will be open and ready 24 hours a day, every day.


All it Takes is Some Doctrin'

Method 1 -- Constitutional Alphabetism

(Bush v. Gore, 2000)

This method involves using  etcha same letters of the alphabet the Founders used to write the Constitution. Though the Bush v. Gore decision was written on an Etch-a-Sketch and then flipped and shaken the day after the ruling was issued, it still exists in the permanent record. It can easily be adapted to the current Obamacare ruling.


Method 2 -- Constitutional Origamism

(Citizens United v. FEC, 2010)

This method requires a little more work, Const Origamism but produces fantastic results. In the Citizen's United decision, the First Amendment was folded into a bird to deliver Americans speech so free it soars on the updraft of expansive liberty. Once foldability was established  anything foldable dollarCraigSonnenfeld was acceptable and the bird became money. Once the 14th Amendment was properly folded, a corporation became a person who owns a bird. With a few simple folds of the Enumerated Powers, the repair to the Obamacare law can be properly applied.


The Roll of the Court

We can all be thankful the Court has such interpretive tools to prevent staining the chamber with specious claims and constitutional contrivances. However, I would be remiss if I didn't inform the Court the Citizens United thing doesn't sit well with most Americans. If the Justices choose only one of the listed remedies to the Affordable Care Act...it should be ObamaCar. I get the feeling America thinks the Court owes us one.

We, The People await the decision, but due to the varied opinions and leanings of the Justices, the split on the Obamacare ruling isn't easy to predict. When it comes to the Roberts Court, it's a roll of the dice.

















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Unprecedented is going to war in Iraq for the benefit of the oil monopoly and Halliburton. I'll be back after I've had a chance to actually read this rather than skim it. Ain't multi-tasking grand!?
"Fortunately for all concerned, the Court is Mount Olympus and the Justices are robed gods, unbound by Earthly tethers, specious arguments and lower court rulings."

heh heh. The Citizens United Decision proved that, I guess. What's your prediction, Paul? Heads we lose, tails we lose...
Basically, yes, nana
They're all brim-full of fecund fecality. The insurance laws will provide some relief, but overall, it won't save a dime.
The funny thing, in addition to funny things, is the 26ers' are arguing, by implication, for Medicare expansion,. Also, Republicans arguing against a Republican plan, though Democratic law. Also, Federalist Society devotees arguing against a system that shovels cash to Big Biz, their constituency.
It's all clowns, up and down.

I do think if most Americans knew they don't qualify for having to purchase private insurance at full price, they'd be more accepting. The opposition breaks into the 35% Republicans always against anything, and the rest saying they don't want to buy insurance from THOSE BASTARDS. So, the opposing public opinion isn't unified, which wingers should consider if they were capable of considering something besides which slogan to use. It's Ass Warfare.

There's another HUGE reason Republicans fear this law, but I might make a post out of that...much shorter than this, but figured I'd leave it out here. If they were arguing that case (and they are, but not talking about it), it would be Put Up v. Shut Up.
Vinson slides to new depths on the slippery slope fallacy, though it must be said, his "reasoning" is as lacking in originality as it is in logic. In short, he needs to quit spending so much time watching Fux News while writing his opinions. Broccoli? I say it's a conspiracy against the greens -- didn't Bush the Elder say he hated broccoli?

And speaking of idiots, I thought these legal opinions were supposed to be scholarly? When did the mouthings of Glenn Beck, et al, qualify as worthy of citation by a sitting Federal judge?

If the Supremes get this one wrong, it's time to institute impeachment proceedings. The process has already begun thanks to the felonious Citizens United decision. Sign up here:

One more if you can stand it -- the Court should have rendered Bush the Lesser unpresidented
I think the freedom to editorialize in the dicta is one of the benefits of judgeship. None of it is legally binding, and it gives 'em a chance to reveal their ability to think deeply. Vinson didn't even get his toes wet, but be probably doesn't know it. Besides, he's just repeating earlier Fed Soc babble, which, if you have an hour, you can watch by clicking the 2nd Fed Soc link. The whole deal is a set up to give the Supreme 5 cover for abandoning CC precedents, because the public thinks it's all deeply legal and written in magic ink they can't understand. Vinson was partially overturned by the 11th, but they needed to set up the idea of 5 guys deleting an entire law.

Of course, I ridicule Citizens United here, and it's a prime example of pure-assed, no holds barred, constitutional contrivance for a political and ideological, and frankly, anti-constitutionalist group-think goal.
Just a wonderful read, Paul. Great humor in the writing. I don't know which is better: reading this or drinking a glass of lye!

Clearly, you gave this a ton of thought and it shows here. I fear (I'm not quite ready to say I *know*) that *this* SCOTUS will screw this matter up as they have so many other decisions.

My take is that the entire government is so gummed up - all three branches of it - that nothing short of a revolution is called far.

Let's face it: Obamacare is so contorted, so unimaginably distorted in order to get something done that it's ripe for the picking. And so it is being picked apart.

I doubt the Supremes will uphold the mandate. They're too political a group to do such things. The "gruesome foursome" of American jurisprudence (Scalia, Alito, Roberts, and Thomas) have staked their ground (in speeches to one or another rightie group chicken dinner/golf outing) and it's a good bet that this upcoming decision will go like the others.

We've entered a dark, dark, period in our history. A nation once known for leading has contracted, like snails into their shells with the morning light, afraid of reality.

Alas, and alack!

BTW, for the life of me, I cannot understand why you aren't getting your share of EP's. For godssakes, you're one of the top 5 political writers at this place.
Thanks, Fly
But this piece runs a bit long, something I knew but chose to not 'fix." Between setting the facts o' the case for those not following it and indulging myself with a longer ridiculing of the case against, it was bound to get a bit windy. Case-Opter bit-done would have helped, perhaps, but I love ObamaCar and it needed a more detailed set up. It's not a hot topic and I haven't posted lately, so that has some influence as well. I'll settle for the fewer page hits and a more select audience knowing I helped that happen.

You're right. The blatant politics of the Roberts 5 is obvious and no less ideologically driven than the other 2 branches are bribery-driven.

PS to all--Obama actually stroked the golf ball in that pic, so a little adjustment was required.
wow! i need a semester - and three lawyers to get this! i say nationalize the whole damn system - screw the lawyers - and make the doctors take a check -or hit the road - the 1% cant hire all of them!

call me a commie - but i believe that care giving cannot be properly achieved under manged care - a cna deserves more pay than anyone in the six or more layers of supervison medicare pays to keep him or her from stealing the bed pans.

there is a line in the sand - and health care should be it.
I'm sorry, I wanted to read this earlier, but I had to put it aside for work-related stuff (after seeing the length of the post!). This was very funny. I especially enjoyed “The New Obamacare Law – Cure 1” near the end. Given the fact that most Americans don’t want personal IDs that could be used for reducing or eliminating voter fraud and getting appropriate government services, tattooing bar codes should automatically lead to an armed insurrection against the federal government. Whether they would be successful remains to be seen.
Mr. O'Rourke, this is both outstanding as political commentary *and* funny as hell! I kept having to gather my thoughts again -- along with my wits -- after every howl. Especially after I read Method 1 (Bush vs Gore), Constitutional Alphabetism and saw the accompanying graphic. Nearly strangled!

@ Tom Cordle, I was *finally* pretty well recovered and breathing normally when I came to your comment, to wit, "One more if you can stand it -- the Court should have rendered Bush the Lesser unpresidented"! I felt like you "Bush-whacked be, Sir!" And I got all strangled up all over again! Great pun!
Thanks, Kurt. I had as much fun writing it.
Paul, this is both brilliant and hilarious. The perfect start to my day (yeah, I'm being lazy).

I believe the Citizens United decision forced even the most naive naysayers to face the fact the Supreme Court is as political as Congress. Although I must admit, I expected them to kick the Obamacare decision further down the road and I suspect the tone of the election will determine the decision. Afterall, the Republican field is so pathetically weak, Obama could possibly win, but if the court rules against him, in the words of deminted Demint, "it will be his waterloo".

I can get confused trying to determine which way they'll go because Obamacare does advantage the insurance cabal, then I remember we just had an election where recalls and repeals won out. An outcome that has possibly made them nervous and feeling the need to regroup. Whatever one can say about the Conservatives, they cannot accuse them of failing to prepare for every possibility and setting up the options in their favor.

Now that I've totally confused myself, I'll simply add that polls (which I believe to be just another propaganda tool) reveal that the majority of Americans, 54% now approve of Obamacare. Go figure.

Follow that, smarty pants. :)
So brocoli was central to the case all along...and you were prescient, Paul! Seriously, your parsing of the issues here falls squarely where the trees fell this week, with the Supreme Court's leisurely walk through the political case, with nary a judicial perspective on the scene. But who would have guessed that they would have so intentionally pretended not to grasp the concept of insurance in its most basic form? Let's substitute the term "individual mandate" with "personal responsibility' and see how the rhetoric flows.
Yes, Steve,
A political set-up from Day One.
I'm not surprised our Federalist Society Justices dove straight into the absurdum pool. Like I say above, most Americans think it's all solemn legal mumbo-jumbo beyond their grasp, so the Federalist 5 are safe from anything but the criticism of legal scholars, and that doesn't matter. This is purely ideological, with no homage paid to practical function. It's about being a hero to the other Fed Soc members.
I came back for a hair of the dog after your comments on Steve K's latest, and enjoyed a laugh at seeing how prescient you are. No, not about the Supremes and Obamacare -- turns out you were the inspiration for Mitt as Etch-a-Sketch! I bow to you, Swami ...
I thought about cutting this down to size and giving the editor in the sky another chance at a shorter version, and if I did, I'd have to add something about Mitt to that part. I still might do that, but I figure they don't look at my stuff anyway, so I'd be giving the usual readers a re-run.
But yes, that's the swami insight, even though it's coincidence. That the Supremes would parrot the absurd argument was all but a given.