Premature Adjudication

Buoyed by our ahead-of-the-curve reporting on the Karen Klein bus monitor story,  we are taking the far more ambitious, and undoubtedly foolish step of predicting the outcome of the Supreme Court ruling on the Affordable Care Act, due to be announced this coming week. If we’re right, well, that’s super cool, right? And if not, we will wear around those “I believe in stuff” tee-shirts for an entire day. Hilarious! Ya’ll can point and laugh.

The ruling in the Affordable Care Act case could go three different ways. It could be completely struck down as unconstitutional, it could be entirely upheld, or the justices could decide to rule that certain parts stay and others go. Lawmakers, and no doubt a good number of journalists, have been preparing in advance so that when the ruling is issued they can have immediate responses. U.S. Senatorial candidate and current Indiana State Treasurer Richard Mourdock was lambasted this past week for having filmed three different responses in advance of the decision so that he could make the appropriate one instantly available after the court issues its ruling. This has generated a bit of outrage – but really – why? Nothing strictly speaking wrong with filming in advance. It comes off a bit disingenuous, but so what? That the footage was somehow posted on the candidates’ website before being hastily removed just makes for a bit of fun.

Point is, this is the most anticipated Supreme Court ruling probably ever. Will big-government Obamacare be upheld – after all, it was passed by two elected bodies of government and signed into law by the President – or will the conservative-leaning court strike down bloated legislation that is clearly unconstitutional? These are the battle lines, this is the red v blue narrative playing out in the most high-stakes court case in U.S. History.

So, first the easy part. The whole damn thing will be struck down. Every last shred. Republicans will drink champagne and talk about how this was a victory for America. Dems will put on a brave face even as the ruling will send them spinning into disarray and trying to pick up the pieces so that they will not appear weakened come November. But there is no doubt this will change the landscape and the debate heading for the presidential election.

Now, the hard part. What about the people? You, know, the, umm, citizens? The Affordable Care Act has become such a political football that, particularly to those who oppose it, the actual effect of the ruling on flesh-and-blood people is beyond forgotten. It was never important in the first place. As soon as Obama started the wheels turning on Universal coverage, a loud, red, NO FUCKING WAY became the order of the day for republicans. The AFA would require all citizens to purchase coverage, an intrusion into personal life that is anathema to Republicans. Especially when that intrusion takes the form of people being forced to pay for stuff. They will intrude mightily into your life in other ways, but that’s another several thousand words. But anything that looks like a “tax”, no fucking way, dude. It does not matter what the actual issue is, it only matters if something seems like new taxes. And to be fair, they do have a hell of a good point. Even the U.S. Solicitor General himself was at a loss to explain to the Justices during oral arguments how it could be constitutional to force citizens to buy health insurance. Donald Verrili’s job was to artfully make the Administration’s case, but he faltered. Turning in an entirely unimpressive performance, he did not really seem to have any good points to make. Lawyers should, you know, have cool points to make.

Here’s a good, solid, sappy point: don’t we, as a people, want universal health care? We do, right? We want the kind of society where everyone has access to decent  care. We don’t want 40 million uninsured Americans. Republicans are not proposing an alternative. They are fighting tooth-and-nail to defeat AFA as a political victory. You don’t govern by just opposing stuff.

INDIVIDUAL MANDATE; PREEXISTING CONDITIONS

Above sappy point easily crucified by Republicans. They just refer to how unfair it is to force people to buy stuff, and we forget about the 40 million. We think “What? Paying for stuff? Yeah, that sort-of IS bullshit”. But we have a market-based healthcare system here, a combination of private companies and government programs. Private companies are allowed to turn you down flat for coverage if you have preexisting conditions that they determine will make you too expensive to cover. They are for-profit companies, they are not in the business of insuring the (already) sick. The AFA has two central components which must BOTH be upheld for the law to work. The first is that turning down individuals for care based on preexisting conditions becomes ILLEGAL. Can’t do it no more. Gotta approve everyone who applies. The second is the individual mandate. The AFA is saying “okay everyone, you have to buy coverage, but you cannot be turned down”. AFA completely blows up if you take away the individual mandate. Then, a person could live without coverage, and literally call an insurance provider from the ambulance on their way to the hospital to buy a plan when they should need it. That will never work. Everyone would simply wait until they were sick to buy coverage, and with the preexisting condition exclusion gone, insurance companies would go broke. Or, their premiums would be so high coverage would be impractical (yeah, like it isn’t already). So remember, folks, AFA only works with BOTH the individual mandate and preexisting condition exclusion. Even if our bold prediction is wrong and the court upholds part of the law, but strikes down the individual mandate, the thing still completely blows up.

MMm, MMm, MARKET BASED

Just a quick side-rant on the beauty of market-based systems. Competition drives down prices and makes services better! Yay! But no, not in health care. The best universal coverage systems in the world are all government run. Governments suck at certain things, but they are the perfect choice to administer large-scale programs like national healthcare, and do so as a much smaller percentage of GDP than do market-based systems like ours.  They aren’t flawless, but having thousands of private companies and thousands of laws and regulations, all varying from one state to the next is a recipe for disaster, which is exactly what we now have. Let private enterprise do stuff it’s good at, and let Government do things like administer health care. No, this does not mean you are no longer free, it does not mean we’re becoming “socialist”. More on “socialism” in a future feature (apologetic quotes in this case used very intentionally) but that word, “socialism”, is a loaded word because of our associations with the good ole’ U.S.S.R. “Socialism” means bad stuff, right? Like really bad. No, it just means that sometimes, elected government should do stuff that private enterprise is not very well suited to deal with. There is no such thing as pure capitalism, anywhere. If it would have worked, we’d have it here. Private enterprise and market-based systems simply cannot do everything under the sun. We want awesome services and low taxes, and in healthcare that is not going to happen with a market-based system. Universal care won’t be cheap, but freedom ain’t free, and aren’t our values as a culture enough to make us say “hey, let’s do this.” Okay so that is naive and idealistic, which is adorable, I know. Aww, shucks.

POLITICIZATION OF HUMANITY

So here we are, on what might be the eve of the AFA ruling. Yup, the whole thing is toast. Gone. It will be a close vote, it will go along party lines. Oh wait, the Justices are non-partisan. Mmm-hmm. A final cynical reset on this whole business…

1. In 2000, the court under Chief Justice William Rehnquist granted certiorari to Bush v. Gore – remember that one? That means the Supreme Court actually stepped in without having been asked to review the case. Rehnquist knew that the court would rule 5-4 in favor of Bush. Which they did, giving the Presidential Election to him.

2. Bush appointed 2 Supreme Court Justices during his 8 year presidency: John Roberts and Samuel Alito.

3. Wait and see how the vote comes down this week. Who would have thought that Bush v. Gore would determine the outcome of the Affordable Care Act? It already has.

And the … people? The 40 million with no insurance? Well, this is a victory for every single one of them. They will not be forced to pay a new tax in the form of the individual mandate. A victory for democracy.