On the Record: The Reckoning
by krwhitley
Today is the 28th of May and as the month closes I feel compelled to finally submit for the written record my opinions and thoughts on healthcare. When I say healthcare oftentimes I will be referring to the series of cases which were heard in tandem by the Supreme Court during March of this year and which constitutes Department of Health and Human Services v. Florida, Florida v. Department of Health and Human Services and National Federation of Independent Businesses v Sebelius. In their totality these cases address the four relevant legal issues in question: the individual mandate, Medicade, severability and Anti-Injunction. Sometimes when I say healthcare I’ll be referring to the state of healthcare policy in general. I trust you, our educated and enlightened readers will be keen enough to tell the difference.
Because I aim to keep this brief (brevity is indeed the soul of wit), because the great many of you do not care, and because there are so many possible outcomes for these cases, I will not describe in great detail the technical points upon which these cases will turn. Do not construe this to mean that I have no ideas about how the majority opinion will read. So without further ado, here in my humbled prediction of the lineup:
For the majority, upholding the constitutionality of the individual mandate are:
Mr. Chief Justice Roberts (writing for the majority) joined by Justice Kennedy, Justice Ginsburg, Justice Breyer, Justice Sotomayor and Justice Kagan.
Those in opposition as the dissent will be:
Justice Scalia (writing for the dissent), Justice Thomas and Justice Alito.
My prediction is that the opinion will be released on June 25, 2012 (that’s a Monday for those playing at home).
Because I have predicted above that the Court will rule on the individual mandate, they will declare the case as having passed the anti-injunction bar posed by the Anti-Injunction Act (AIA). The majority will likewise not consider arguments of severability. The minority will in light of the majority opinion find issues of severability to be moot and so will also not address these issues either. I think that both sides will find the expansion of Medicare proposed in the healthcare legislation to be constitutionally valid.
Some of you might be comparing my prediction of the case results with the predictions of such esteemed journalists and reporters as Jeffrey Toobin, who predicted an all out failure on behalf of the government immediately after the close of the second day’s morning oral arguments. Re-listening to the oral arguments and re-reading the Solicitor General’s case briefs have reaffirmed my initial thoughts on the case—our legal theory is strong. I do not say this lightly. Frankly, Solicitor General Verrilli did not sound his usual during his March arguments. His superficial blunders likely overshadow the substantial merits in our argument to the media and even to those “in the know.” Without saying much more about these merits (though I would really like to and if you would like to hear them comment so), I have my reasons for believing that the individual mandate will be found to fall into the broad confines of the commerce clause.
But the question arises inevitably, “what if you’re wrong?” If the healthcare law is struck down in its entirety (or in such a way that it is virtually dysfunctional, though I don’t see any prudent judge making a decision that would yield that result) what happens to healthcare? If my predictions don’t come to fruition (don’t hold your breath) the economic issues associated with the current way insurance companies do business still exist. Of course, the more compelling moral dilemmas associated with a significant percentage of Americas living uninsured still will exist. My prediction is that in some time less than fifteen years the Congress will do what they (perhaps) should have done after the great depression, what a great deal of other countries do on some level and what the United States already has engaged in (and what the Patient Protection and Affordable Healthcare Act does not do) is socialize the market in the same way that other social programs like social security function. By socialize the market I envision the introduction of a large federal program with an equally large purview of responsibility. There will be few questions as to whether this sort of Congressional action will be constitutional or not. Conservatives and other opponents of the Affordable Care Act (ACA) will wish that such a bill as the ACA could be agreed upon during these negotiations. This is the reckoning.
Submitted respectfully for the record.
If you didn’t enjoy reading that (than I first assume you’ve stopped reading and have not gotten to this part or perhaps less likely, you’ve skipped to the end and might be reading this) you can read some of my other creative writing posted on this blog. You can expect a great deal more of that to come as the summer unfolds and time becomes less scarce.
