The manner in which Obamacare was written has some peculiarities that make it peculiarly flexible in the following sense of the Pelican Brief.
They chose to rationalize the law, and so argued before the Court, and this after being offered an out, on the grounds of the Commerce Clause, even though they would have been on far stronger ground to argue that this clause justified what they wanted to do from Article One, Section Eight:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...
Since the Obama folks didn't make that argument, they defaulted to what the Court will chose as to the amicus briefs, which they can, but are not required, to use.
Given the intensity of debate over Obamacare, there will exist a Pelican Brief that argues that in fact, Obamacare is in really a tax measure as to the treatment of healthcare insurance, including the individual mandate, if for political reasons, it was thought expedient not to advertise that fact.
You don't pay taxes on health insurance benefits, although the professional opinion of healthcare economists is that it overincentivizes the consumption of healthcare at the expense of other goods, especially low deductible policies with no co-pays.
If the Court had asked the question, "Can the State tax cigarettes more than broccoli?" it would have been closer to the mark, although whether Obamacare in practice would serve the General Welfare would depend to some views as to cost, especially medical malpractice, but also other incentives in that industry, and whether a sweeping change in one seventh of the economy could ever be done without generating uncertainty that became more of a cost than a benefit in and of itself, although once things go forward, that would change too.
Of course, the reason that it was thought inexpedient to make that taxation argument is that then people could scream that Obama had raised taxes, something politicians are loathe to do. If the Court so choses, it doesn't have to use the amicus brief that does exist, Obamacare as Pelican Brief, but it could.
As to the second part of Obamacare that is unusual, it has a potential auto-destruct mechanism built into it that had to have been understood, since its alternative is so routine; the question of severability.
The vast majority of laws have written in it a severability clause that states something to the effect of "Whatever clauses not found unconstitutional are to be treated as law."
Arizona's immigration law went forward for precisely that reason, and since there are plenty of lawyers in the Obama Administration, that was a choice that had to have been understood.
Of course, they also know that there would exist a Pelican Brief that argues that there is a large amount of administrative discretion in a tax code measure as determined by the IRS rulings, and Congressional revision, like the Supreme Court case that made healthcare a tax code issue in the first place by saying that dollars provided to buy health insurance aren't taxed as income, a policy decision of vast consequences as to the world we live in today.
finis
TIP:
Enter the amount, and click "Tip" to submit!
Spencer Thripworth III
Robert Fuller
Kerry Lauerman
Con Chapman
Gerald Andersen
Steven J. Gulitti
Salon.com
Comments
In my view, the ACA wasn't based on a tax to a point substantial enough to fall under GW.
As far as severability, the absence of that clause gives the Court more latitude, but in general, those are legislative decisions. If the SC decides to toss it all out they can (because they can always "can"...who's going to appeal?), but at the risk of becoming a SuperLegislative Branch.
However, there's as much chutzpah among Thomas, Alito, Roberts combined as there is in Scalia alone, so I doubt they'd hesitate. The only thing holding them back on this politically coordinated effort is the backlash from deleting the parts people want. I say politics will probably win over ideology in this case.
The best General Welfare move, constitutionally and politically, would have been Medicare for All, but the lobbyists, for some reason, decided to not write that option into law....
Gee, I don't know why....
You could argue JMAC that in effect, what Obamacare really does is alter people's taxes if they don't purchase a policy that in effect the government pays for anyway, as to emergency care, since that is required by law not to turn people aways in certain contingencies, which in effect means everyone already has a "cat" policy, much different of course than what people are used to.
As to why no Medicare for everyone PJ, that is because it would most definitely require more money, i.e. taxes, and they didn't want to have that argument, although, if you altered the tax status of health plans as has been part of some "broader base lower rate" arguments, then one could in fact spend less by the government, and possibly by private actors, if you buy into the work done at RAND as to the impact of varying incentives, costs out of pocket, on people's decisions to consume healthcare.
Healthcare is and is not broccoli.
It is broccoli if it is clearly non-life threatening, in which treating may, or may not, make sense as a purely economic decision.
Healthcare is not broccoli because it has more externalities, particularly the one generated by what Adam Smith identified in Theory of Moral Sentiments; empathy.
If we see someone bleeding to death on the side of the road, we tend to help, since empathy says that we would want others to do that. On the other hand, not all healthcare generates that empathy, which sometimes is correct, other times possibly not. Take mental health care. If you haven't experienced that, you will see it differently than if you have, personally or in a family member.
Medicare for All.....who want it, not as a replacement of private insurance. The Public Option. That way, whoever enrolls pays a tax that would otherwise either not be paid or would go into the coffers of private companies. No added costs that aren't covered and the polls show, over a long period of asking, most Americans support paying extra tax if they got h-care. Hell, Americans aren't so blind they can't see how well that works in those countries with lower-priced and better outcome systems.
Let me begin at the beginning. The Constitution states that one of the two primary raisons d'etre for government is to promote the general welfare. It ought to be inarguable that healthcare is included under that umbrella.
“Strict constitutionalists” are fond of the illogical argument that the demands of the Collective impinge on the rights of the Individual. Of course, they do, but that sort of “thinking” is what I call the Libertarian Lunacy, because to make such an argument is to argue against government itself.
The Constitution is as much a defense of the Collective – the Commonweal, if you prefer -- as it is the Individual. Indeed, absent the Collective, the Individual has no rights whatsoever under the law, because the law cannot exist absent the Collective to make, administer and enforce the law. Thus, an argument against demands by the Collective is essentially self-negating.
On the other hand, our Constitution does spell out certain general and specific rights of the Individual, rights which are intended to protect the Individual from arbitrary and capricious demands made by the Collective.
Sidebar:
One egregious example where the putative “strict constructionists” on the Court have failed miserably, horrendously to protect both Individual rights and the Commonweal is the decision in Citizens United v FEC.
By now it ought to be utterly clear that decision allowed the collective (note the lower case) – the corporation – to trample one of the most basic rights of the individual in a democracy, the right to vote.
It may be argued, speciously at best, that nothing in that decision keeps a person from voting. But one might as well argue that everyone could vote in the Soviet Union. As Stalin was fond of saying, “Having the vote means nothing; counting the vote means everything.” Indeed, and having the power and economic wherewithal to propagandize and pollute the electorate may be even more meaningful in the age of television.
But it isn’t just the Individual who is harmed by that decision and others, the consequence for the Commonweal is disastrous as well.
Those who doubt that need to look to the example of Montana, a state that a hundred years ago adopted – out of dire necessity – strict campaign finance laws. West Virginia is another state in dire need of such laws. But thanks to another recent SC decision, such laws are now deemed unconstitutional.
Forgive the extended sidebar, but it is relevant to the matter at hand, because the same sadly, tragically mistaken Court that ruled against the Individual and the Collective – and in favor of the collective – with Citizens United is about to rule against the AHA. Or at least that’s the expected outcome.
Why does this Court continue to get it so wrong? Obviously, partisan politics is at work here, but the root cause goes much deeper. Our system favors principle over practicality, and as a consequence it also favors hypocrisy over reality.
Even more telling, our system favors the Law over Morality, If you doubt that, look to the banksters and corporateers who use the law to rape and pillage and savage ordinary people. Even the most ignorant savage cannot be convinced that something can be immoral and still be legal, yet our “civilized” society makes that argument all the time.
As usual in our “how many angels can dance on the head of a pin” system of justice designed of, by and for lawyers, the bone of contention (at least on the surface) in this case is mostly one of semantics, That is to say, would a tax by any other name smell as badly?
Call it what you will, the mandate is a tax indistinguishable from any other tax – income tax, Social Security tax, Medicare tax, ad infinitum. And what is the purpose of these taxes? Income taxes fund the Collective, while Social Security and Medicare protect the Individual when he or she is likely to be most vulnerable.
But properly understood, Social Security and Medicare are not taxes, they are insurance, just like any other form of insurance, save that they work much more efficiently.
The purpose of insurance is to protect the Individual from the unforeseen and the catastrophic. But it is also to protect the Collective by providing funds to care for those who suffer unforeseen and catastrophic events and to care for those who are no longer able to care for themselves.
The alternative, at least as typically presented by those who oppose Collective solutions, is to let those who suffer unforeseen and catastrophic events and those who are no longer able to care for themselves suffer and die. Alan Grayson may have been hyperbolic, but he was not wrong when he said the Republican healthcare “plan” was “Don’t get sick; but if you do, die quickly.”
Many were outraged by Grayson’s characterization, but what they should have been outraged by is that is exactly the system some desire. If you doubt that, I point you to the Republican debates, where the audience cheered loudly at just such a hypothetical death.
Obviously, not every one needs healthcare, but just as obviously most of us most of the time don’t need the fire department, either, but we pay insurance in the form of taxes to protect us against that sort of unforeseen and the catastrophic event. And most of the time most of us are quite glad to never take advantage of that insurance or any other kind of insurance, for that matter.
Continuing with the insurance model, you can’t legally drive a car without insurance. In essence, the healthcare mandate is no different.
I listened to some of the SC deliberations on the AHA, and I was frankly appalled at the level of partisanship, pettiness and dare I say (yes I do) ignorance on the part of the Justices. I believe I’ve raised some pertinent issues with this comment, and frankly I think the level of debate here greatly exceeds what I heard from the Court.
For starters, I never once mentioned broccoli. Anyone who did so during the SC hearings is either a fool or a petty tryant. Antonin, you know who I’m referring to. And after his latest tantrum from the bench when Arizona’s “Papers Please” law was struck down, I’m beginning to wonder if the man isn’t senile.
But let us not lay all the blame for this fiasco – nay, tragedy -- at the feet of the Court. Obama could have followed my suggestion and proposed Medicare for everyone or no one. I would have loved to see Legislators squirm with that vote.
But mostly, I fix the blame for this tragedy on Congress. Had Congress had the guts to do the right thing – I can dream can’t I – healthcare reform could have been accomplished with a one page, nay, a one sentence bill:
"We hereby adopt the well-proven Canadian healthcare model for the United States."
I don't think the Court is getting things wrong, as Original Intent is important, if only as a hypocrisy, the tribute that vice pays to virtue, and functional.