Here's to Your Health, Asshole!

Wow. The Affordable Care Act (AFA) stands. Upheld in a surprise 5-4 decision with Chief Justice John Roberts swinging leftward (or was he?) and casting in effect the deciding vote. That the AFA was upheld was widely misreported by major news organizations which tried to make sense of the decision by essentially reading on air the majority opinion as it was released at 10a.m. Eastern time on June 28, 2012. Both Fox and CNN plastered “INDIVIDUAL MANDATE STRUCK DOWN” across their screens since the language of the opinion misled them.

Suckering CNN and FOX was the early part of the opinion which stated that the Individual Mandate was not constitutional under the Commerce clause, as U.S. Solicitor General Donald Verrilli had argued before the court. Verrilli was far from convincing, a major reason that pundits everywhere felt sure the entire statute would be struck down. However, during oral arguments in May, few even noticed, let alone understood, Chief Justice Robert’s questions about the applicability of the tax code to the Individual Mandate. J-Ro, as liberals now call him, is hard to read; his calm, even demeanor never changing. His big, wet blue eyes and easy boy-scout smile make him look so lovely and powerful. He seems like the kind of guy who would care about your pleasure and hold you afterwards. Maybe even stay all night and make pancakes in the morning while wearing your bathrobe. Ok, enough of my own personal J-Ro fantasy. At least for now.

During oral arguments, Verrilli looked and sounded a mess. He didn’t get good reviews from anyone on his performance. The Individual Mandate is NOT constitutional under the commerce clause. But apparently it IS constitutional when viewed as a tax. A plain old tax. Holy shit. That really complicates things.

The Government had argued that the Mandate was most certainly NOT a tax, mainly because the word ‘tax’ is used by both sides as a weapon. See our recent post McNuggett Season for a more complete rant on that topic. Had the Court upheld the Mandate under commerce, that would in effect give Congress the power to make you buy furniture at IKEA, to use an example provided by fucking insane super creepy former presidential candidate Michele Bachman, who took time out of her busy summer schedule of shooting gays, to make a comment. What the Court actually ruled is that no, Congress does not have that power. But they do have the power to levy taxes. And the Individual Mandate, in that sense, is legal.

The incredibly strange bedfellows this has created will hopefully place John Roberts head on my pillow. Stay lubed. But what is utterly stunning in the Court’s opinion is that the Chief Justice essentially said to the Government “The Mandate as you argued it is unconstitutional. However it’s ok as a tax, which is not what you even argued.” It is beyond rare for the Court to supply arguments not posited by the Government to uphold a law.

WTF HAPPENS NOW?

This is a victory for Obama, to be sure. Oh, wait, it’s all about the people, not the politics. Yet even with the surprise upholding of the AFA, Republicans are now in a fervor to make the November election a referendum on the AFA. Taxes versus Freedom. State’s Rights versus Federalism. It’s 1770 all over again.

Romney has pledged to repeal the AFA on day one if elected. Never mind that repealing a law is not as easy as a few pen strokes. Billions of dollars that will be spent on implementation between now and January would be wasted. And although Romney’s battle cry is “repeal and replace” he has not uttered a word about what form the replacement would take. Further weirding everyone out, the AFA is damn similar to Romney’s plan in Massachusetts. But Romney and Obama are both on video tape saying they think the mandate is a good idea and is definitely not a tax. Those dudes need to find a room. Romney supported the plan in Massachusetts but opposes it so vociferously at the Federal level he is willing to base his entire campaign on it. His people talk about it being an “issue of Federalism and States’ Rights”. Bitch, please. Think whatever you want about Romney, but the fact is that guy opposes the AFA because it’s Obama’s plan. Romney is a democrat-opposer, not a man with ideas or purpose.

Chief Justice J-Ro, and you should see this guy in regular clothes, yo, the robes are so fucking modest! Oh, wait, I was having a point to make … what was it. Oh yes. By letting the AFA stand but forcing the Mandate to be levied as a tax, Roberts has provided an interesting opportunity for the right. They can now come out with stats about how this is the biggest tax hike on the middle class, ever, and all of that. It doesn’t take much to confuse the slavering idiot public. If something can be construed as a tax, it’s evil, and it does not matter what it is for or what it will help to accomplish. House Majority Leader Eric Cantor has already pledged a vote to repeal the AFA in July. Never mind they have already done this once, and the Senate will not pass such a measure, so it is entirely symbolic in that sense. It is quite literal in the sense that taxpayer time and money will be spent so that the House can have more shit to yell about.

IMPLEMENTATION

The AFA is a giant piece of legislation. For those cheering its approval, some words of caution. Most Americans have bitter complaints about their health coverage already, whatever type it is. The AFA is going to help cover 50 million uninsured. But the implementation of such a behemoth as the AFA will be fraught with problems. There is a penalty starting in 2014 for those who do not obey the Individual Mandate. The right will cherry pick stories of the burden this will place on some. Certainly there will be protests; groups of Tea-Partiers who refuse to sign up, video clips of what people will no doubt brand the “obamacare police”; news stories of little old ladies who don’t have enough spare change to take the bus downtown and sign up.. It will get ugly. And if Obama is reelected and the AFA is fully implemented, well I’m sorry to say it will probably, in large parts, suck. After all, this is giant legislation with complicated compromises, at least a few, already built in. We will still have a weird mix of government programs and private insurers. The bureaucratic nightmare that is sure to ensue will be videotaped and broadcast.

Will the public calm down, move on to other issues like the economy? Of course not. Not one legal scholar predicted the AFA would stand with the Individual Mandate as a tax. It makes the debate almost too simple, but nothing for Americans is ever too simple. We want simple. Simple is easy. It remains to be seen if the right can keep the debate debased at a level of “vote for Obama if you want new taxes”. Can Romney win an election based on one single issue – Romney the repealer? Would anyone really vote for a candidate based solely on the intent to un-do things? Can Romney really keep quiet about what he would actually … you know … DO?  

Only one thing is certain. J-Ro is a hottie.