Thursday, June 28, 2012

Hyperbole Thursday -- a.k.a. the healthcare ruling, a.k.a. what happens when reasonable people let politics get the best of them

You'd swear the world just ended. Alternatively, you'd swear the world came within a whisper of being purposely annihilated by lunatics only to be saved at the last moment by the Good Guys. Or maybe, just maybe, like me, your opinion is a bit more, er, measured.

Today the United States Supreme Court ruled that most of the Affordable Care Act (ACA) -- the healthcare reform legislation, or "Obamacare" to some -- is constitutional. And a lot of people who ought to know better -- some of them whom I even know personally -- have reacted with the kinds of statements that make me embarrassed even to be involved in political discourse in the small way that I occasionally am.

First of all, read the ruling, including all the concurrences and dissents. You have no business getting on a soapbox about this one until you do. If your answer to that simple demand is that it all is too complicated to read, then may I suggest that it is all too complicated a matter on which to have an  opinion? 

Once you've read it, does the majority ruling seem akin to the attacks on 9/11? 

Maybe you think that the Chief Justice's somewhat surprising decision to join the majority  is a double-secret piece of double-gotcha plotting from "an evil genius" who actually wants to hand conservatives a rousing political victory?

Or maybe, just maybe you aren't buying all that hyperbole.

I hope you are in that last category. Since I'm a lawyer -- no, we still aren't talking about my day job, and we never will -- I will try to give you a straight reading on the main part of this decision without distortion. Then you decide if it is worth all the yelling and screaming from the fringes. 

The meat of the dispute is the so-called mandate to buy health insurance. The law imposes a "requirement" (its term, not mine) that people be insured by a particular date or else pay a "penalty" (again, its term, not mine).

No one -- or very few anyway -- dispute that if Congress wanted to, it could levy a tax on the uninsured. But this law, on its face, does not present itself as a tax. Rather, it was passed as a Commerce Clause-based restriction on "activities" that affect interstate commerce. The "activity" in question is the act of not buying insurance for which a "penalty" is levied.

Four members of the Court -- Breyer, Ginsburg, Kagan and Sotomayor -- think that is a fine exercise of Commerce Clause power, effectively ruling that the inactivity of failing to buy insurance is activity enough to be regulated because the omission/act nevertheless affects commerce.

Five members of the Court -- the Chief, Kennedy, Alito, Thomas and Scalia -- think that Congress overstepped its bounds in that regard and that inactivity is not activity. 

Put differently, Breyer and company think it is okay, in this instance, under the Commerce Clause, for Congress to tell you you must pay a penalty if you don't buy an item on the private market. They lost that argument, 5-4.

But.... they lost the battle and won the war because Chief Justice Roberts left his four compatriots from the Commerce Clause part of the ruling to decide that even though Congress called it a "penalty,"
the penalty could alternatively be read as a "tax" -- because, after all, the IRS collects it -- and, thus, since Congress is free to tax the uninsured, what would be, according to five members of the Court, a Commerce Clause violation, is instead a valid exercise of the taxation power.

The four dissenters (Kennedy and company) disagreed. Citing the numerous (18, I think) times that the statute references a "penalty" and the zero number of times it references it as a tax, the dissenters deemed the chief justice's middle-ground position to be saving a statute with an interpretation that simply is not plausible. They also acknowledged what I thought nearly everyone (although apparently not Rachel Maddow) believed/acknowledged, which was that without either a mandate to buy insurance or a tax on the uninsured, the whole statute would have to be scrapped because you can't force insurers to cover people only when they get sick.

So here, in a nutshell, is the holding of the Court, from the Chief's opinion:

""The Federal Government does not have the power to order people to buy health insurance. [The statute] would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. [The statute] is therefore constitutional, because it can reasonably be read as a tax."

In other words, you have a choice: buy insurance or a pay a tax.
The stigma of the "penalty" is gone. It's a tax.

So you tell me. Is that 9/11-like? Conversely, are the dissenters completely out of their minds and trying to drive us back to the 19th century by refusing to read something that is only (and repeatedly) called a "penalty" as a much more benign thing called a "tax?"

That sort of commentary on both sides is downright embarrassing. What Roberts did here was, undoubtedly, done with political motivation, but it strikes me as the ultimate in Solomonic *centrist* political motivation: split the baby. Rule on one hand that Congress can't force you to buy anything, but, on the other hand, that they didn't do that here. This is, he says, a simple matter of buying insurance or paying a tax. Breyer and company believe that inaction in this arena nevertheless affects commerce, and Kennedy and company think that inaction is not action and a penalty is not a tax.

And I am not saying you can't disagree with any aspect of all that. Me? I am inclined to think that the chief justice probably stretched a bit in reading what was labeled over and over in the statute as a "requirement"-- which, if not met, would cause the levy of a "penalty"-- to be instead a "choice" whether to buy something or pay a "tax." So, horrors(!), I probably think Kennedy and company got the best of a close argument.

But, and here is the real point of all this, I understand that there is more than one way to view this, and I'm not going to hate you for disagreeing with me. I won't compare the chief justice's views to a terrorist attack. I won't tell you that the losing side in the Commerce Clause angle of this was trying to undermine the republic. And I won't accuse the chief of some sort of double-secret right-wing plot.

Maybe you could consider dialing it down too? Please? Because otherwise you are losing all your credibility in favor of shrill hyperbole. 

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