SCOTUS, THANKS FOR THE CAMEL

Like 100% of true blue Americans I was ecstatic on Thursday, June 28, when the U.S. Supreme Court upheld the Patient Protection and Affordable Care Act—often and derisively called Obamacare— a term which you will see typed by me for the last time in this paragraph.

Well, okay the ruling wasn’t received with favor unanimously…though it should have been. Curiously Chief Justice John Roberts joined the four staunch liberals on the bench to rule the law is valid.

And things got curiouser and curiouser.

Most people, legal experts as well as some blog commentators with too much time on their hands and a desire to return to the eighteenth century (Thank you, Centinel) felt the decision would pivot on the interpretation of the Commerce Clause of the Constitution.

Those who supported the law made their case that the Commerce Clause permitted the expansion of federal power to include requiring the purchase of health insurance. Those against the law vehemently invoked everything from the Federalist Papers to the “original intent” of the Founding Fathers to a long-forgotten phrase in a ninth grade essay noting the limitations of the Clause penned by a young man who just may have been James Madison’s paper boy.

But no, declared Chief Justice Roberts and the Four Seasons…er…the four usually reliable ultra-conservative voters on the Court. The federal government may NOT use the Commerce Clause to justify the individual mandate. That mandate does not regulate commerce, which would be permissible, but it CREATES commerce by requiring a purchase.

Never mind that if someone fails to purchase health insurance they will not find a policy stuffed in their shirt pocket together with a bill for premiums from United Health Care. No, instead their next filing with the IRS would include a bill for an extra amount in tax due the government. And they still would not have purchased anything, not even broccoli.

But, while Roberts was busy exchanging pies in the face with Moe, Larry, Curly and Shemp, and reluctantly made the choice to side with the rival Marx Brothers, he betrayed his roots and invented a fiction to save the mandate.

“Why it is a tax” spake Roberts, wisdom pouring from every pore of his body while the poor listened harkening to the news of the fate of their hope for affordable health insurance.

And Congress, to the regret of almost anyone living and breathing within our sea-to-shining-sea borders, most certainly does have the power to tax, even our amber waves of grain.

So the mandate is not part of interstate commerce because it is a tax but no one pays the tax unless they do not purchase health insurance available in interstate commerce.

But wait a minute! Some years ago Congress passed the Anti Injunction Act. That law prohibits any judicial action to attempt to forestall enforcement of a tax . A person can sue if he has paid the tax in full, protests its legality and has been refused a refund. Even if the mandate is a tax, it does not become effective until 2014 and of course no one has yet been billed for the tax for their failure to purchase health insurance.

Hmmm, maybe that was not wisdom pouring from the pores of the Chief Justice.

Oh heck, Roberts can get around this. He’ll just say that the Anti Injunction Act and the ACA were both products of Congress at separate times so that means one cannot negate the other. The Anti Injunction Act passed in 1867 and the ACA in 2010. Not even Senator Robert Byrd voted for both.

Things get curiouser and curiouser.

One part of the ACA was stymied (but not Buckwheated). In 2014 the law provides for the expansion of Medicaid to include all those who earn no more than 133% of poverty level income. That means supergrowth of Medicaid rolls in states. most of which have current eligibility requirements that are much stricter, including asset tests.

However, the federal government will carry all but a small percentage of additional costs. States not complying with the new standards stand to lose Medicaid funding.

Roberts calls this coercion and declares that if states fail to comply the federal government cannot end funding.

This part of the ruling ignores prior examples where the federal government forced the states to bend to federal will or lose money. The most glaring example was when Uncle Sam wanted the drinking age to be 21 everywhere and threatened to withhold highway construction funds until a state complied.

So now, if a state wishes to opt out of the looser Medicaid eligibility requirements, many of its poorer citizens will be left without insurance or bare minimum coverage as they will not be able to afford more.

It seems the four Justices who most often find Roberts to be a dependable and reliable ally have themselves offered scathing dissonant dissents to the controlling ruling. It is as if they believe Roberts is a Judas in their midst, though perhaps their present enmity stems from the fact he forewent placing a kiss upon them prior to his betrayal.

All this strained logic and circumlocutory reasoning, though I most definitely approve of the result, reminds one of the definition of a camel as a horse designed by a committee.

Once the opinions have been digested and the smoke has cleared and we can plainly view the creation of the Supreme Court we are left with two questions.

Is it bactrian or dromedary?

Is it over the age of 21?

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