I began writing this post at 1:12 AM in the morning on the 30th of March (or is it May?). At roughly 7:20 PM last night, I commenced reading through this week’s oral arguments from the Supreme Court regarding the constitutionality of the Patient Protection and Affordable Care Act. The three days of testimony spanning four sessions was strewn across over 400 pages.
Given the title that I have chosen for this particular post, it should not be hard for the reader to discern my conclusions about the future of PPACA after my reading the arguments, but in order to give full context as how I came to this inference, I feel I must first share a few personal observations on the Supreme Court.
In a perfect world, the make-up of the Supreme Court would consist of nine swing votes. Attorneys would present their arguments to the Court, and the justices would impartially decide the merits of each case using 223 years of judicial precedent as their guide. Unfortunately, since the administration of Ronald Reagan, nominees for the bench have been selected based solely on their political ideologies, rather than on legal competence. Since the rejection of Robert Bork in 1987, the Supreme Court has ceased to resemble the impartial interpretive Court of Last Resort envisioned by the Framers of the Constitution and has instead evolved into a 9-person monarchy. Sniveling weasels lurk in the shadow of the Court, waiting, much like over-eager princes, for a vacancy caused either by death or retirement, for with that one open seat, the ideological leaning of the entire Court hangs in the balance. In this context, the justices of the Supreme Court cease to be recognizable as respected jurists and instead morph into blathering carrion with vultures circling above their collective heads.
We fought a revolution to rid ourselves once and for all of this type of regal intrigue, with our evolution as a country helping to greatly reduce the additional lingering paternalistic stains of gender and racial discrimination. The three-decades-old politicization of the Supreme Court has been but one of several new and unexpected ideological battlefields that have had a measurable negative impact on the political discourse in our country. One need only peer briefly into the mosquito-infested swamp of the 24-hour cable news cycle or the comments section of the online version of your local newspaper to realize how far we have fallen. It is with great disappointment that I report that based on this week’s oral arguments, the Supreme Court of the United States continued down a path that eventually will lead directly to the end of our once-functional democracy.
Monday’s session began with all justices present and accounted for. On the conservative wing of the court sat budding weird uncle and semi-professional Borscht-Belt comedian Antonin Scalia, the self important tacticians Samuel Alito and John Roberts, the accidentally aloof Anthony Kennedy and, reprising his sterling impression of Harpo Marx for a sixth straight year (minus hat, horn and any sense of actually being funny) Clarence Thomas. On the other side of the Court sat Steven Breyer, whose interjections during oral arguments took on the appearance of following an old man wearing a hat in a Buick LeSabre in the left lane of the freeway. He was joined by the Court’s answer to Wilson Phillips, in the form of Elena Kagen, Ruth Bader Ginsburg and Sonia Sotomayor, shimmering with their sunny liberal harmonies.
The first day of arguments centered on the penalty terms of the individual insurance mandate provisions of PPACA. There was extended discussion over whether this penalty was actually a tax. It was referred to as a tax, a penalty and (you knew this was coming) a “tax penalty” during Monday’s arguments by different parties. This evolved quickly into a discussion as to the proper timing of injunctive relief for parties subject to the penalty, with the government attorneys arguing that it should be after the determination of a penalty. It is worth noting here that this portion of the Act isn’t in effect until 2014 (for now).
Prior to recounting the second day of arguments, I should pause now for another philosophical rambling along our path. I have never had much of a need for attorneys. This comes mostly from personal interaction with lawyers within my own family. There were segments of my family that went into the medical profession and some that chose the legal route. The doctors were mostly well-meaning and successful people dedicated to their profession. The best of the attorneys in my family only rose to the unimpressive level of Apprentice Dirtbag. Other less-skilled familial esquires rose to the lesser title of Pond Scum. There was even one who ripped off the estate of an older female client to the tune of hundreds of thousands of dollars. Decency precludes me from telling you what notorious level this person occupied, but is it any wonder that I eventually changed my surname?
That being said, if your life’s mission is to be a high-level trial attorney, and you someday accept the position of Solicitor General of the United States, it is hoped that you have the ability to argue a case before the highest court in our country without resembling someone who accidentally swallowed a throat lozenge. Such was the fate of Donald Verrilli as Day 2 of arguments unfolded. Tuesday’s session was dedicated to the constitutionality of the individual mandate. The fundamental question to be answered was whether forcing uninsured citizens to purchase health insurance constitutes a creation of commerce (which Congress is prohibited from doing based on the Constitution), or the regulation of existing commerce. Verrilli found himself on more than one occasion without credible answers to questions that in his role as Solicitor General, he must or at least should have known would be asked. It bespoke of a fatal flaw in legal strategy for Team Obama. Tuesday’s session was further complicated by Justice Scalia attempting to compare the automobile industry to health care as similar types of commerce, which spoke volumes about his disdain for relevant context and his philosophical allegiances.
Prior to this day’s session, it was thought that Anthony Kennedy may have been a swing vote with regard to this most important question regarding the Act. All illusions of such a stance were shattered shortly into oral arguments when Kennedy asked “Can you create commerce in order to regulate it?” This signaled to me that Kennedy’s mind is made up about Congress having overstepped its authority by creating commerce, making him by my count the fifth vote to eventually strike down the individual mandate to purchase insurance.
This led into the arguments of Day Three. Over two sessions on Wednesday, the issue of severability was on the table. Attorneys for both sides argued either for or against throwing out the entirety of the Act if the Supreme Court declared the individual mandate portion unconstitutional. Of all of the arguments brought forth this week, those of the third day should sufficiently scare the daylights out of everyone involved in any way, shape or form with a government health care program. The conservative wing of the Court appeared to signal their willingness to throw out the entire law based upon the central importance of the individual mandate, even those unrelated portions such as payment reform, the temporary 2010 Doc Fix (which set the table for the next four fixes), funding for the Indian Health Service and a host of other issues addressed across over 1,000 pages in the Act.
A final ruling is expected in June, but this week’s arguments were only the latest in the long and painful journey that has been the decline of the Supreme Court. It is recommended that all health entities begin to conduct impact analyses to determine what throwing out PPACA and starting again will mean to your facility or physicians. I’ve been wrong before, but I’m betting it all that PPACA died this week. E Pluribus, Chaos!