One Guess on How the Court Will Rule on "Obamacare"

As I have noted before, I finding very revealing that the industrialized nation with the most supposed religiosity and self-proclaimed Christians is also the only industrialized nation that treats its citizens as largely disposable trash through its refusal to provide decent health care. It seems that the Bible beating Christianists and their political whores in the Republican Party selectively ripped out all of the Gospel passages that mandate caring for the sick and the poor and feeding the hungry and sheltering the homeless. Instead, they focus on how much loot they can amass for themselves while kicking their neighbors to the curb if not under the bus. This utter hypocrisy - and one could argue even sinful behavior based on Christ's directive to the rich man to sell of of his belongings and give the proceeds to the poor - is particularly stark in terms of the U.S. Supreme Court justices who fairly shriek out about their religiosity while making greed a virtue: Scalia, Thomas and Alito. A column in the Washington Post analyzes what the Court's ultimate ruling may on health care reform may be. Should the law be struck down, to me it will be an indictment of the utter moral bankruptcy and religious hypocrisy of the far right and certain of the Court's justices. Here are column highlights:

Like most Washington policy wonks, I spent too much of last week reading transcripts of the Supreme Court arguments over the constitutionality of the new health reform law. This was to be a “teaching moment” for the country, an opportunity to see the best and the brightest engage in a reasoned debate on the limits of federal power. Instead, what we got too often was political posturing, Jesuitical hair-splitting and absurd hypotheticals.

That said, I don’t agree with the conventional wisdom that, in light of last week’s oral arguments, it’s a sure thing that the court will overturn the law or its individual mandate.

Judging from their blatantly partisan bleating from the bench, it is certain that Justices Antonin Scalia and Samuel Alito will join Clarence Thomas in doing whatever it takes to impose their conservative, free-market, nothing’s-changed-since-1788 agenda on the country.

An essential element of the Republican strategy these days is that, whenever confronted with an obvious failure of the free market, the correct response is always to try to turn the tables and blame it on misguided government policy.

Scalia and Alito simply gave it the old Republican razzmatazz, blaming the government for creating the problem in the first place by obligating hospitals to treat the sick even if they are uninsured and cannot pay for the care. It was the kind of sophomoric logic you’d expect from high school debaters — or a Republican presidential candidate at a tea party rally — not from members of the highest court in the richest country on Earth.

Another of Scalia and Alito’s cute debating tricks was to latch on to an opposing argument and take it to its illogical extreme in order to show how silly it is. By this technique, the individual mandate suddenly became the first step on the proverbial slippery slope to government requiring that all Americans buy broccoli or a gym membership because those, too, will make us all healthier and thereby lower health-care costs.

It is axiomatic, of course, that the power to regulate, or to tax, or to criminalize is the power to regulate, tax or criminalize stupidly. . . . .

But for some reason, when it comes to requiring Americans either to buy health insurance or pay a fee, we are now supposed to believe that “all bets are off,” according to Chief Justice John Roberts, or that “a fundamental shift” has occurred in the relationship between the individual and government, according to Justice Anthony Kennedy. Really?

Surely Justices Roberts and Kennedy and their legion of summa cum laude law clerks can conjure up a workable criteria to distinguish a law requiring the purchase of health insurance from a law requiring the purchase of pomegranate juice.

If there is a legitimate challenge to the law, my hunch is that it is likely to come over the question of whether the individual mandate is as narrowly drawn as possible to achieve its objective. If regulating the interstate market for health care requires regulating health insurance, and if assuring a healthy insurance market requires solving the problem of free-riders who drive up premiums and taxes for everyone else, then isn’t the solution to require everyone to buy “catastrophic” insurance?

Roberts asked that question twice, but got no satisfactory answer, either from the solicitor general or any of the other justices. The reason is that there is no good answer.

In the end, Roberts will see the institutional peril in overturning the most significant piece of domestic legislation in a generation, particularly in the wake of the overtly partisan decisions of Bush v. Gore and the Citizens United. With Kennedy in tow, the chief is likely to articulate a modest new limit on Congress’s power to regulate interstate commerce that would allow health reform to proceed in some fashion. Or, as he hinted in oral arguments, he may duck the commerce clause altogether and simply uphold the individual mandate as a legitimate exercise of Congress’s taxing power. The cacophony of accompanying dissents and concurring opinions will make it difficult to figure out who won, who lost and exactly what precedent was set.

The law, in other words, remains an ass.

Having once done legal work for a large hospital system, what no one on the right wants to admit is that we are already paying for the coverage of the uninsured in the least efficient manner possible. It doesn't take a rocket scientist to figure out that $5 aspirins are a reality because we're paying for all the aspirins doled out to those without coverage. Yet in the process, we ignore preventive care and thus guarantee that we will be faced with more catastrophic costs down the road. France and many other nations - that don't parade around boasting of the religiosity, by the way - have figured this out. Why can't the hubris filled USA?