I spent a long time thinking of a good title for this blog post, because I really wanted to capture the very deep thoughts I was thinking as I reflected on the Supreme Court oral arguments about Obamacare that happened last week. I think I nailed it; YMMV.
At one point during oral arguments about the individual mandate, solicitor general Verrilli was explaining the need for the provision. Free riders, Verrilli explained, will refuse to pay and still get treated at a much greater cost because we have “obligated ourselves so that people get health care.”
Scalia responded, “Well, don’t obligate yourself to that.” It’s like a Groucho Marx routine. Patient: It hurts when I do this. Doctor: Don’t do that.
It might be worth pointing out to Justice Scalia and other like-minded conservatives that one of the persons who obligated us to caring for the sick and dying was a guy conservatives pretend to admire: Ronald Reagan. In 1986 Reagan signed the Emergency Medical Treatment and Active Labor Act which obligated hospitals to care for anyone who needs emergency treatment regardless of citizenship, legal status, or ability to pay.
So Scalia’s “don’t do that” advice? Like I said, he’s a douchenozzle. (Note that I didn’t say douchebag. That would be coarse.) Remember in the Republican debates when Wolf Blitzer asked Ron Paul if we should just let uninsured people die?
I’m beginning to think the person cheering was Justice Scalia. Douchenozzle.
We won’t know until June how the Court has decided regarding the individual mandate. Before the hearings, the overwhelming majority of legal scholars thought that it would be upheld 7-2 or maybe 6-3. After the questioning by Scalia, Kennedy, and Roberts (not Thomas? Haha, no) the majority seem to think the mandate will now be struck down.
The tone of the questioning seems to have awakened people to the fact that the Court is a highly ideologically political body, and not a group of umpires who come in and call balls and strikes when asked. Ronald Reagan’s Solicitor General, Charles Fried, found the parroting of rightwing blog talking points (the broccoli mandate) by Scalia to be depressing. He argues, like most legal scholars, that the individual mandate is obviously constitutional.
What is amusing (in a gallows humor kind of way) about all of this, of course, is that the mandate is the conservative solution to the Free Rider problem. It’s been proposed by Republican politicians and conservative think tanks like the Heritage Foundation for the past 30 years. And it has been actually implemented by the presumed Republican nominee for president who bragged as recently as 2009 that it was the conservative solution of personal responsibility. Even Tea Party favorite Jim DeMint was for the individual mandate until President Obama signed it into law.
This isn’t new for Republicans, and it’s been documented time and again. They will walk away from any solution, even their own, if it can in any way help this president in the short term. Cap and trade? Yes, a Republican idea. Now it’s socialism.
Here’s a fun one I’m curious about for the conservatives I know who are able to believe that we have always been at war with the individual mandate. In 2005 when George Bush started campaigning to “individualize” Social Security, he often used the Chilean model as a template for what we should be doing here. I know many many conservatives who agreed with him, and even Herman Cain in his presidential art project referenced it approvingly. So anyway, that Chilean private social security model? Yeah, it’s an individual mandate to invest in a retirement account from a private equity fund. Still like it? Constitutional? Right, right, sure it is, unless a Democrat president agrees to it, amirite?
(To be fair, the Chilean model also gives people the option to buy a public version of the retirement account. So does that make it okay? If we add the Public Option back into Obamacare would it be okay? Conservatives? Hello?)
When I think of conservatives nowadays I think of a man driving a car when he passes a man waving frantically in the road with a large sign that says, “Bridge Out Ahead.” Instead of slowing down, the conservative speeds up. “Why aren’t you slowing down?” asks his wife.
“I don’t trust that guy.”
“But you told me yesterday that the bridge was out.”
“Yeah, but that guy had a Yankees hat on,” says the driver. “I hate those Damn Yankees.”