Oral Arguments

On Monday evening I heard an interview with Ben Shapiro, at King Street Patriots. He was there to talk about his new book, Prime Time Propaganda, but he also happens to write about the Obamacare issue for Breitbart.com, so he spent a little time on that as well. He gave a good summary of what’s going on this week, sort of your armchair guide to the proceedings.

Shapiro said there are three main issues, one per day (there are also a couple of additional issues, if you read news elsewhere about it):

1.      Timing and ripeness—Monday

2.      Individual mandate

3.      Severability

One point Shapiro made was that oral arguments are pretty much a formality. Most of the justices have already researched and decided their positions—and have for the most part already written their opinions. It is expected that the four conservative members of the court will find the law unconstitutional, and the four most liberal members will find a way to claim it can stand. The unpredictable deciding vote is Anthony Kennedy. He tends to frame his opinions, however, based on his view of personal liberty. He decided Lawrence v. Texas, for example, on his opinion that a state couldn’t have an anti-sodomy law since a sexual act is a private decision (ignoring anti-prostitution laws, anti-bigamy laws, anti-child molestation laws, and a myriad other concerns in so opining). So maybe concerning Obamacare he will be hesitant to force individuals to buy a product.

Timing has to do with the question of whether the issue can be taken up now, even though the penalties don’t kick in for a couple more years. If there’s a tax injury question, the person suing can’t sue until after suffering injury from the tax. Thus the question couldn’t come up until after 2014. The Obama administration sold Obamacare as something other than a tax; it is a penalty forcing compliance, not a revenue source for the general fund. But now the lawyers are claiming it is a tax—so they can put off the question until after the election. But on Monday no one was buying that argument. It can’t be a tax and not a tax at the same time. Really the issue for the justices is whether or not they want to postpone a ruling or handle it now. They all seem ready to take it on, with the exception of Kennedy, who would probably be glad to procrastinate. But on that issue the vote would likely be 8-1.

Tuesday the big issue was the individual mandate. Questions asked by the justices reveal something of their opinions. And it looked very bad for the pro-Obamacare crowd. Government lawyers seemed surprisingly unprepared to answer the basic question at the heart of the issue: can government force a person to participate in commerce they would otherwise not choose so that government can regulate that commerce? The deer-in-the-headlights response made it look like they’d never considered the question, which isn’t possible. But it does reveal how unanswerable the question is for them. And the follow-up core question is, if government can force a person to buy a product they would not otherwise purchase simply because there is the power to regulate commerce, what can government not force a person to do? There were analogies galore: can government force a person to buy broccoli? Since everyone will die, can government force a person to purchase burial insurance? Since anyone might at some point need to make a 911 call, can everyone be forced to purchase a cell phone plan?

Near the end of the day, Kennedy gave a tiny spark of hope. The government argument was that young healthy people not participating in the health insurance market did possibly have an effect on the costs of the market. Actuarially that is true: if young healthy people don’t put themselves into the insurance pool, then the pool is made up of individuals more likely to make claims, and therefore the costs overall are higher. If those young healthy people who won’t be making many claims can be forced to pay for full coverage, the costs overall go down—because those young people are subsidizing the less healthy. Those young people without coverage, if they can afford it, would likely opt for catastrophic coverage only—and pay out of pocket for their fewer basic medical needs. But Obamacare prohibits them from having the option of buying catastrophic coverage; it forces them to buy full coverage. The mandate is intended to force healthy people to buy a product they do not want so that the government can say it is lowering costs for unhealthy people.

You might see it as enslaving the lower-earning youthful demographic to pay for the healthcare costs of those who have saved up enough to retire.

Anyway, Tuesday did appear to be disastrous for supporters of the individual mandate. I hope that proves true.

Wednesday is about severability—assuming the mandate is struck down, does that mean the whole bill is struck down, or can the mandate be removed with the rest left standing. This is probably the biggest question. Technically, there is no severability clause written into the bill as required; the bill was written intentionally to have the mandate be the means of making the rest of the bill possible. If the mandate falls, the whole bill falls. But, after arguing the other way to get the bill passed, the government is now arguing that even without the mandate, the rest of the bill should stand.

There are economic and plenty of other reasons this is wrong. But the Supreme Court as a whole isn’t about simply looking at the law and the Constitution; it’s about deciding what they and/or the people want and then crafting a slant toward that end. In this case the likely reason the mandate will be struck down is that a majority of the people are strongly against it and believe it is unconstitutional (this has been true since before passage and continues true even after two years, even before the pain of payment has kicked in). So I think it’s likely the mandate will be struck down. But then this severability question becomes the sticking point. The liberals on the court ask things like, shouldn’t we let Congress decide these things? (even though, clearly, that was a bad idea in the first place—particularly when it was totally partisan and required bribes and shenanigans even to get that single party to pass it).

Shapiro pointed out that deciding to leave the rest of the bill standing minus the mandate could be the worst possible outcome: insurance companies would be forced to insure the highest risk individuals (can’t turn anyone down) but have no way to force healthy individuals into the pool to mitigate their costs. Insurance companies would go bankrupt. And that would mean the only option left standing would be government healthcare—or socialized medicine. Costs would be higher. Care would be less. Choices would be limited. All our fears would be realized.

So let’s hope the court (particularly the unpredictable Justice Kennedy) can see the facts and rule justly.

And if for some reason that doesn’t happen, we must, absolutely must, vote Obama out of office before this catastrophe gets institutionalized.