Every challenge to the Affordable Care Act is dumber than the one before and while that should be reassuring for supporters of the law, the makeup of the Supreme Court manages to lurch in equal measure more shameless in its willingness to just make stuff up to reward its political benefactors. When this landmark legislation finally gets killed it will feel like Benny Blanco from the Bronx coming in Deus Ex Craphola two hours after the fact.
Today, the Supreme Court agreed to hear the Texas case against the ACA next Term, meaning we’ll have the future of health care on the ballot in November no matter what happens.
The latest challenge is that if the individual mandate was justified as a tax, and that tax is now set at zero, then it isn’t really a tax at all. Therefore, the individual mandate isn’t constitutional anymore and by extension the whole law can’t be constitutional anymore. It’s an argument Texas came up with while trying to compare the ACA to “The Puppy That Lost His Way” and ends up making just about as much sense. So, obviously, it’s already cleared the Fifth Circuit with the blessing of the FedSoc judges.
But, of course, the only reason we’re even hearing this drivel is the refusal of Chief Justice Roberts to admit that the Commerce Clause is real. Back in 2012, he bent over backward to classify the individual mandate as a tax rather than derail his plans to kill off the Commerce Clause and return America to a Lochner-era dystopia. So the ACA carried on under this screwball tax interpretation that’s now given birth to this lawsuit. It’s enough to make King v. Burwell sound smart and that case was the Supreme Court jurisprudence equivalent of this Family Guy scene:
While we brace for another challenge, this whole thing should serve as your semi-regular reminder that if a candidate doesn’t support some version of “Medicare for All” then that candidate is really supporting nothing because that’s all the Supreme Court is going to give them. Strengthen the ACA? Folks, it’s not even going to survive. A private option? Whatever staffer came up with “let the federal government to enter the market and compete directly with private business” should be viciously berated like they forgot a salad fork. Conservative legal scholars are already conceding that Medicare for All passes constitutional muster as they must because otherwise the Court is going to have to strike down Medicare because as the legal mind behind King v. Burwell points out, “Medicare for some is constitutional, Medicare for all would be as well.” It doesn’t matter if you might personally prefer something short of single-payer health care — it’s really that or nothing.
And maybe voters are just fine with nothing. But it’s time to stop pretending there’s a viable middle ground with this judiciary.
Earlier: Medicare For All Is The Only Viable Plan And The Fifth Circuit Just Proved It
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.