Tuesday, March 27, 2012

What does Justice Kennedy think? Bam! Pow!

JUSTICE KENNEDY:  And the government tells us that's because the insurance market is unique.  And in the next case, it'll say the next market is unique.  But I think it is true that if most questions of life are matters of degree, in the insurance and healthcare world, both markets – – stipulate two markets – – the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the cost of providing medical care in a way that is not true in other industries. That's my concern in the case.
          -- Page 104 of 133, transcript of Tuesday's oral argument in Department of Health and Human Services et al. v. Florida et al.
This is US Supreme Court Justice Anthony M. Kennedy hinting that he thinks uninsured healthy young people may, possibly, could come awfully close to affecting interstate commerce.   And if he thinks that something affects interstate commerce, he most assuredly thinks that something can be regulated by Congress.  As I said, Bam! Pow!  It's all over but the writing up of the excruciatingly boring legal opinions to support it and oppose it.
By the way, I read all 133 pages of the transcript of today's oral arguments so you don't have to, but it's linked above if you want to.
The arguments were tough going for the government with justices on both sides, including Kennedy, raising serious questions about how the far government can go in regulating commerce, even  if it means forcing you to exercise, buy broccoli or arrange your own funeral.
But this one comment by Justice Kennedy may be all you need to know about the three days of oral arguments under way in the U.S. Supreme Court about the constitutionality of the Affordable Care Act. The whole issue may very well come down to this one 76-year-old man's opinion.
We're not supposed to infer anything from the questions asked at oral arguments as we could be horribly wrong.  Too true.  I will infer away anyway.
The four "liberal" justices were plainly searching for arguments to justify upholding the individual mandate.  At least one of the four "conservative" justices, Samuel Alito, will overturn it.  Anton Scalia seems to be leaning in the same direction and Chief Justice John Roberts appeared to be pretty skeptical as well.  Of course, as usual Justice Clarence Thomas asked no questions and it is not clear whether he was even awake.
(If it's a 5-4 decision to uphold, Justice Roberts may cross over and make it 6-3 so he can write the majority opinion -- eye on the history books or whatever.)
The whole argument seemed to come down to the question of whether Congress can force those who are not in the market – – in this case healthy young people – – to enter that market before they will have need of health insurance.  Even a lot of the argument on the opposing side seem to raise the question of when, not whether Congress can force people to buy health insurance.
Can it be long before they need it?  Which would lower the health insurance rates for everybody else but force them to buy a product that they do not yet need.  Or can it only be at the point when they enter the health care market, such as when they show up in an emergency room?  At which point health insurance would be prohibitively expensive for them and we would end up paying for it anyway like we do now.
Or, could we just throw them out on their motorcycle-crushed heads and let them die in the street, as some conservatives seem to favor?  As one justice noted, the provision of health care does seem to be a well-established social policy in this country, no matter who ends up paying for it.
Because the court is hearing the issue now, it must issue a decision on the ACA (it's okay to say Obamacare, he owns it) on or before June 30.
Whether the court will make a well-reasoned legal decision (the pro-Obamacare side) or a crazy political one (the right wing nut side), its opinion will have a profound effect on the presidential election.
If the ACA is upheld, that will galvanize the far right base of the Republican Party.  If it is overturned that will energize the left-wing base of the Democratic Party.
I'm sort of secretly hoping for that.  Many on the left, including myself, don't like the idea that the ACA is subsidizing the private, for-profit health insurance industry by forcing people to purchase its products and we don't like  the idea that anybody, except maybe doctors, actually make a profit off illness and death.   We would prefer a single-payer system or, if you will, a real "government takeover" of the health care system, like every other civilized, developed nation in  the world.  Yeah, that's the (socialist) ticket! 
So if the ACA is overturned, I think many of us can live with that, and Congress can find other ways to pay for health care, but only if we re-elect President Obama and do not give both houses of Congress a Republican majority.   If we do that, we can kiss Medicare, Social Security and all of the gains of the 20th century goodbye. 
Just something to think about, all you young, healthy people out there.


  1. I want the courts to uphold it. Anything is better than the current system. If if gets struck down, then what? How can the health care act be unconstitutional but social security and medicare aren't? They tax us to pay for those two items. Is it ok to make us pay for a retirement plan but not our health?

  2. Yes, ultimately if people refuse to buy health insurance, they'll just be taxed for the costs the rest of us will have to pay for them. I think it's clear it falls under regulation of interstate commerce.