Map of life expectancy at birth from Global Education Project.

Monday, April 09, 2012

Can consequences trump ideology?

I recently had the opportunity to talk with an actual professor of constitutional law at an Ivy League university (not my own, we don't have a law school). He thinks that the Affordable Care Act is constitutionally valid, but that the conservative majority on the SC would just love to find some reason why it isn't because conservative jurisprudence means coming to conclusions that are politically congenial to conservatives.

However, they do confront a difficulty. There is no limit to the sophistry they are willing to employ, viz. Bush v Gore. But in the latter case, the consequence of their action was that GW Bush occupied the office of president, which was fine with them however disastrous it was for the rest of us. However, in this case, here are their alternatives:

They go along with the Scalia plan, i.e., the individual mandate is unconstitutional and it's obviously just too much to ask for them to actually read the bill and decide which parts are inextricably linked to it and which parts aren't, so rather than forcing Justice Scalia to work after 5:00 pm they will just throw the whole thing out.

Since Scalia hasn't read the bill and apparently never will, he doesn't know this, but I'll let y'all in on the secret. There's a whole lot of stuff in there that has already happened. This includes the creation of the Patient Centered Outcomes Research Institute, which already has a funding stream which does not come from the federal budget or from congressional appropriations and which is a private non-profit corporation. It has paid staff and reviewed proposals, for which it will make funding awards in May, presumably before the justices rule. (Disclosure alert: I might even get one.) Similarly, the Center for Medicare and Medicaid Innovation has already spent money and will make substantial awards (maybe a billion clams) before the court rules. (Disclosure alert: They have paid me and several hundred other people $500 as an honorarium for reviewing proposals.) So what happens if the act is struck down? Are these entities dissolved? Do we all have to give the money back? What about people who have been paid salaries by PCORI and CMMI?

Then there are the high risk pools, from which people already have purchased insurance. The people under 26 who are staying on their parents' plans. The grants to states to set up insurance exchanges. What happens to all that? The result would be total chaos.

So let's say Scalia decides he can at least assign his clerk to read the bill and decide what is and is not severable. Is there some consistent, defensible constitutional basis for doing this? What about the medical loss ratio requirement? The insurance exchanges? Guaranteed issue? (Could that survive without the community rating requirement? I don't see why not.) Ban on recissions? If they do sort all this out then, a fortiori (yeah, fancy pointy headed Latin term) they will have to analyze and accurately describe how insurance markets work, which means the whole broccoli analogy and the rest of the right wing blog jive Scalia and the others quoted in oral arguments will blow up like a Pakistani wedding hit by a predator missile. They will have to conclude that the individual mandate is essential to congress's legitimate purpose in regulating interstate commerce in order to fix real problems in the market for health insurance.

As a matter of fact, my friend said that arguments on the third day, regarding severability, suggested to him that Roberts and Kennedy may have had the light bulb go off. They may have seen that the argument for severability essentially unmakes itself; whereas if they don't find severability and strike the whole thing down history will remember them as irresponsible lunatics. The question is whether they care about option B. (Scalia, Thomas and Alito clearly do not.)


Anonymous said...

A new take on 'too big to fail'?
'Too complex to rescind.'

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