by Karl Denninger, Market Ticker:
Well well Justice Roberts, I am writing your obituary right here and now, and should you precede me I’ll publish it too, even if it costs me a lot of money to do it.
“Justice Roberts was single-handedly responsible for the destruction of the American Government via its Treasury via his idiotic and legally-infirm contortions in ruling the Affordable Care Act was in fact a tax, rather than a constitutionally impermissible command.”
As I wrote at the time Roberts destroyed what little was left of the Supreme Court’s legitimacy, putting the final nail into a coffin built since Wickard .v. Filburn. He justified this in his opinion through what is really called by any means possible I shall torture the law to save it, in that he cited a claim that the Courts are required that any fair means of interpretation exists that leaves a law intact the courts are required to find it.
Of course there was no such “fair means” which he also set forth in his own opinion, stating clearly that the statute reads as a command to buy insurance (“enter into a regulated activity”) and that the Constitution prohibits that.
Indeed the Congressional record on the drafting and debate makes clear (if you bother to read it, which Roberts clearly did and then intentionally ignored it, which I also pointed out in a further article) that Congress knew they could not draft the PPACA as a tax because direct taxation on other than strict capitation is unconstitutional.
In other words the US Government can assess a $10 per person tax, per person, but they may not condition the amount of the tax or its imposition on anything other than being a person. The 16th Amendment makes legal the imposition of taxes on income. Indeed multiple other attempts to impose such a tax without a Constitutional Amendment had been previously struck as unconstitutional, so there’s not only a legislative record but a judicial one as well.
Roberts didn’t care. I’ve often mused if someone has a video of him buggering a little boy and used it get him to write that “opinion.”
But what Roberts didn’t have, because he couldn’t, is the ability to time travel. And when Congress passed the TCJA reducing the penalty for not having coverage to zero starting January 1st of next year they destroyed the Constitutionality of both guaranteed issue and community rating, since both were by the Congressional record inextricably tied to the imposition of the penalty and thus are non-severable, as is specifically stated in the Congressional record.
Without the penalty there is no tax since the inherent property of a tax is that it raises revenue. That’s now gone and it was the sole pillar on which the Roberts court decision rested.
The problem is that the rest of the law isn’t inseverable and the way law works is that except where severance is specifically declared inapplicable it applies unless the result would be nonsense.
That the result of non-severance will bankrupt you does not enter in the analysis.
Thus the brief referenced herein argues that both community rating and guaranteed issue are Constitutionally infirm and thus void come January 1st. This is a winning argument, and if there is anything approaching a justice who can actually read it wins by declaratory judgment since the precedent to judge it by is in the original opinion and as a result there is no legal ground to cover in presentation of a case or argument before the court!
But once you do that both Treasury and private industry are irrevocably and instantly ****ed.
Without community rating and guaranteed issue anyone with a pre-existing condition who becomes unemployed becomes permanently unemployable as they are uninsurable without destroying the business they go to work for. Further, they can’t engage in entrepreneurial activity either because there is no possible way for them to buy health insurance. And finally, since the cost of that care has more than doubled since this problem was allegedly “addressed” by Obamacare they have no other option available.
I have often written about the utter necessity of getting rid of the medical monopolies as a political imperative, and for individuals to do everything in their power to get off the medical teat, which for most people means you damn well better not not be overweight or obese, you better have normal blood sugar which means no damned carbs to any material extent in your diet and it certainly means that intentional high-risk behavior like butt****ing, IV drug use or drinking to excess is an instant economic death sentence.