The historic oral arguments over the Affordable Care Act (Obamacare for short, or Goddamned Socialized Medicine if you happen to be a Tea Party aficionado or a complete idiot) presented before the U.S. Supreme Court in three days of hearings last week brought to the forefront a number of pressing constitutional and policy questions, such as does the individual mandate fundamentally and unconstitutionally alter the relationship between citizens and the government? If the mandate is struck down, does it take the entire law with it? Does the expansion of Medicaid constitute a coercive intrusion on state sovereignty? Did Justice Clarence Thomas ask Solicitor General Verrilli for his autograph, mistaking him for 80s porn icon, Randy West? The constitutionality of the law and its many provisions involve complex myriad of legal questions that attracted a record number of amicus curiae (Âfriend of the courtÂ) briefs from public interest groups, law professors, and some very lonely and horny Indian and Pakistani men who accidentally thought they were submitting profiles to Plenty of Fish.
So, how will it all turn out and what will the Court do? Based on my reading of the transcripts, countless hours of reading SCOTUSblog, consulting scripture, and getting a very thorough Tarot reading (IÂm about to come into some money or die suddenlyÂ she wasnÂt really clear. Plus, my prostate is apparently swell) my argument recaps and predictions are as follows:
Question 1: Does the 1867 Anti-Injunction Act, which says that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed” bar any challenge to the Affordable Care Act?
Argument Recap: Like everyone else who watched or heard these overly technical arguments, I fell asleep. But I think the amicus attorney invited by the Court (since the other two sides aren’t arguing that the law precludes any challenge) argued that the 1867 law is jurisdictional, so no one can challenge the mandate in this or any other case, until it is actually enforced against a specific individual. The government argued that while the 1867 Act is jurisdictional, it does not apply to the mandate and its penalty because they do not fit within its specific terms. The mandate is not a tax, but the tax penalty it imposes does fall within Congress’ power to tax. Furthermore, a donut without a hole is not a donut, but a danish. Gregory Katsas, arguing on behalf of the states challenging the law and dressed in a kilt while wearing blue face paint, argued that the 1867 Act it is not jurisdictional, so it is not a barrier to these or other moronic challenges. He frequently responded to questions from the judges by screaming, ÂFREEDOM!Â
Prediction: Part one of the CourtÂs decision will be unanimous (9-0), holding that the Anti-Injunction Act does not apply. None of the Justices want to punt this late in the game, and neither the federal government nor the states were asking them to. I anticipate at least two or three concurring opinions representing both the liberal and conservative blocs on the Court. This will be the CourtÂs only ÂkumbayaÂ moment. It will also be the part of the opinion that is less widely read than the Farsi translations of ÂThe Satanic VersesÂ and ÂThe Feminine Mystique.Â
Question 2: Is the individual insurance mandate and its attached penalty an unconstitutional exercise of Congress’ authority under the Commerce Clause?
Argument Recap: This was the one that everyone was waiting for, camping out the night before like it was a new ÂStar WarsÂ movie. The government argued that Congress enacted the Affordable Care Act to address a crisis in the national health care market and this is simply a commercial regulation. The individual mandate and its enforcing penalty play a critical role in that comprehensive regulatory scheme by regulating how health care consumption is financed. In other words, people without insurance fuck it up for the rest of us, so this is a way to mitigate the fiscal risk all around. The states challenging the law argued that the individual mandate rests on a claim of federal power that is both unprecedented and unbounded, namely the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power, they argued, does not exist in the Constitution. Only the Lord thy God can compel individuals to engage in commerce and he will strike down with furious vengeance those who attempt to poison and destroy his brothers with unnecessary government regulation. There were several questions from the Justices about broccoli and cell phones, indicating either a strange sexual fetish, a preview of their lunch order, or doubt over this particular exercise of Congressional power.
Prediction: Part Two of the opinion dealing with the individual mandate will be 6 -3 in favor of upholding its constitutionality. Roberts, along with Kennedy who will sign on to the very narrow plurality opinion, will find that the unique nature of the health care market and the widespread direct effect that non-participation has on costs necessitates this somewhat radical exercise of Congressional powerÂ but only for this market and only to the narrow ends that the law defines. The four liberal members of the Court (Justices Ginsburg, Breyer, Sotomayor, and Kagan) will all concur with the result but write separately to say to hell with limited power, Congress can and should do this, and even if they didn’t have the power, we’d let it slide anyway because it allows poor people to secure the blessings of liberty via low deductibles and co-pays. Justice Scalia will, naturally, dissent. His dissent will consist of thirty pages of Âfuck you!Â written over and over and several doodles of Obama wiping his ass with the Constitution. These doodles will later be stolen from the National Archives and sold to a private collector in Montana for an undisclosed amount, part of which will be used to finance an unsuccessful Texas secessionist movement during ObamaÂs second term. Justice Thomas will join this dissent and also write separately presenting an impassioned critique of the CourtÂs acceptance of what he will view as unlimited Congressional power to regulate using the commerce clause. He will write at length about how this ruling will allow mandatory participation in a number of markets, but with an emphasis on the adult film industry. ThomasÂ dissent will be unique for its crinkly dried wet spots and odd discolorations. Justice Alito will also join ScaliaÂs dissent and will also write separately. No one will pay attention to his dissent because, letÂs face it, heÂs just too goddamn creepy.
Question 3 – Is the individual mandate portion of the law severable from the other parts of the law, and, if the Court strikes down the individual mandate does this effectively invalidate the entire Affordable Care Act?
Argument Recap: The government argued that only the two closely related portions of the law must fall if the individual mandate is held unconstitutional. The mandate should be severable allowing the remainder of the law to be upheld, no matter how fucking shitty and incomprehensible it may be. The states challenging the law argued that if the individual mandate falls, then the rest of the shitty and incomprehensible Act must be deemed unconstitutional as well. The amicus attorney invited by the Court argued that the rest of the shitty Act can stand even if the individual mandate is struck down as unconstitutional. Much of the questioning centered on how the Court should determine the shitty parts from the non-shitty parts, with Scalia comparing the task of reading any piece of Congressional legislation to cruel and unusual punishment. Shortly afterwards, the Mississippi legislature added ÂreadingÂ to its capital punishment options and executed six inmates.
Prediction: Part Three of the opinion dealing with the question of severability will also be 6 -3 and it will take the majority one plurality opinion and three concurring opinions totaling 50 pages to say they donÂt have to decide this issue. Scalia, Alito, and Thomas will dissent. Scalia’s dissent will be 30 pages of calling Congress a bunch of incompetent assholes who couldn’t write a piece of legislation if their lives depended on it. It will join the Bible on the Tea Party’s preferred reading list and give Libertarians orgasms for decades to come. Ron Paul will request to be buried with a copy of this dissent.
Question 4: Does the Affordable Care Act’s Medicaid expansion provisions constitute an unconstitutional form of coercion under Congress’ Spending Clause power that violates state sovereignty?
Argument Recap: The government argued that Congress has the constitutional authority to fix the terms for handing out money to the states under the Âfuck bitches, get paidÂ standard. Accepting federal money does not amount to coercion, it only makes you a dirty whore, especially since the states have been going down on their knees for highway, school, and a host of social services funding for decades. The states challenging the law argued that the individual mandate tax penalty provides an incentive for people to get insurance and that this will push the poor onto the state Medicaid rolls. Congress providing 100% of the funding to the states to help pay for services to the poor violates the statesÂ Tenth Amendment rights to let the poor starve and die in the streets.
Prediction: Part Four of the opinion concerning the expansion of Medicaid will be 7-2, with Scalia reluctantly joining RobertsÂ plurality opinion. Scalia will concur, but will write separately to discuss how the exercise of an enumerated power in conjunction with an enumerated constitutional duty should be upheld despite the coercive burdens placed on the states. He will then spend the rest of his concurring opinion taking potshots at Congress for being too stupid for such power, but since the Constitution gives them the power, he really can’t take it away even though he wants to. Thomas and Alito will dissent. No one will care.
The final decision will be a four-part, plurality opinion authored by Chief Justice Roberts, who upon realizing the historical significance of the moment will use his Chief Justice superpower of calling Âshotgun!Â to assign himself the task of writing the controlling opinion, cementing his place in history at the expense of the other Justices. Not content to allow Roberts to hog the limelight, every single Justice will write either a concurring or dissenting opinion. The entire opinion (including all concurrences and dissents) will weigh in at a record shattering 450 pages, which is still shorter than your average Stephen King novella. However, it will be far less read, save a few college campuses and isolated pockets in the Northeast; in the south it will be used as kindling to start cross burnings and as wadding in Civil War re-enactments. It will be woefully misreported by every single news outlet in all mediums which will cherry pick statements out of context in an attempt to make it sexier. And it will be horribly misinterpreted. Fox News will call it the beginning of European-style Socialism fueling at least five more seasons of the National Geographic channelÂs ÂDoomsday Preppers;Â Congress will invariably overreach with their next piece of legislation in an attempt to force fat people to just stop fucking eating already; and millions of citizens will think they now have automatic insurance coverage leading them to continue to shun preventative care and avoid going to the doctor until they show up in the emergency room with something strange lodged in their ass.