Shylock Was a Lightweight Compared to Chief Justice Roberts

Chief Justice John Roberts

So, you have a problem with the government requiring you to buy or to pay for your healthcare insurance. I don’t blame you if you’ve believed all the demented hype about the Affordable Care Act being a Obama-Marxist plot.

This is particularly true if you have not taken the time to think it through, as with Charles Krauthammer and the howling mob of right-wing pundits and angry village peasants donning seemingly over-sized, colonial tri-cornered hats perched jauntily upon under-sized craniums adorned with tea-bags, clearly pulsing for all to see the quadruple-threat  sign of toxic anger, defiance, mass confusion, and a child-like gullibility that would make P.T. “A sucker’s born every minute” Barnum swoon with delight.

For those of you who hate the idea of the government forcing us to buy any form of insurance, I have exceptionally bad news for you; you have been buying government sponsored insurance your entire working life. As Republicans were wont to say in 1935, that damned commie (or Marxist – sound familiar?), President Franklin Roosevelt, is forcing everyone buy a government annuity where and when they work. And the federal government takes the premiums right of your pay! That Marxist-communist plot, my friends, is called Social Security.

Money is deducted from our taxable earnings for FICA, the acronym for Federal Insurance Contributions Act tax, used to fund Social Security and Medicare. Social Security is nothing more than an annuity you buy, not from an insurance company, but from the government, which self-insures the benefits accruing.  Even private companies are allowed to self-insure if they have the assets and credit.

And here’s the point Krauthammer and the rest of of the right-wing pundits and conservatives completely missed: if Social Security is a type of insurance product tax and constitutional, then obviously the ACA is a medical insurance product tax and therefore, constitutional under congressional taxing authority, as well. It is fitting Chief Justice Roberts demonstrated his perspicacity on this issue and he should be applauded. That said, Roberts also extracted a more than the standard pound of flesh from liberal policy makers for his efforts, which I will touch on later. Shylock was a lightweight compared to Chief Justice Roberts.

Annuities are an insurance product, a product of commerce sold interstate, which clearly falls under the commerce clause. Annuities offer either single or multiple pay premiums to accrue in order to build a pool of money, tax deferred, to be paid out at a later date to the person paying the premiums or if they die, their heirs. The future date pay-out can be any number of years one chooses, or at retirement age, or even at death to the heirs. When compared to an annuity issued by an insurance company, Social Security offers you less pay-out options and no accrual options – you will pay.

The important point which was never argued before the Supreme Court in the ACA case is that Social Security, as well as being a tax, is also a government sponsored insurance product.  If indeed Social Security is the Janis-faced tax/insurance child born of Roosevelt in 1935, then as such, Social Security has clearly been continually demonstrated to be constitutional since 1935, falling both under Congress’ ability and authority to regulate commerce, an interstate insurance annuity product, and Congress’ power to tax.

Although Chief Justice Roberts clearly denied the ACA was constitutional under Congress’ authority to regulate commerce, Roberts with the 5-4 majority determined that the ACA was constitutional only under Congress’ taxing power.

While it may be debatable whether there is a Lord who giveth and who taketh away, there is no doubt Roberts’ majority decision to uphold the constitutionality of the ACA took away much power of Congress’ ability to punitively withhold spending grants to states which refuse to accept or participate in government programs.

Once it dawns on conservatives what Roberts has accomplished for their polemical and legislative benefit, they will come to revere him and light candles at shrines they will build to him; future Tea Partiers will staple extra tea bags on their foreheads to honor him; and Charles Krauthammer, right wing pundits, and ultra right-wing Republicans will mercifully cease their wailing screeds against the ACA and stop making ridiculous, CYA hind-sight excuses for Roberts’ decision.

Once it occurs to conservatives what’s been exchanged for the constitutionality of the ACA, they will recognize the very small price being paid for hamstringing congress and government’s ability to impose its will and social programs on states in the future. Once the ever frisky Charles Krauthammer comes out of the ether and realizes what Roberts has accomplished for his conservative cause, he may even offer to adopt Chief Justice Roberts.

Let’s take the congressional commerce clause and taxing authority argument from another angle. To my knowledge all states require drivers to take out and pay for an automobile insurance policy. Additionally, the states back up these laws with stiff penalties for driving while uninsured. This is the second case of insurance being regulated, albeit by the states, and required for the common good.

Applying the auto insurance argument to the ACA, some say, “Ahh, but if I don’t drive, I’m not required to buy automobile insurance.” Good point, but sorry, not a valid one for the following reasons.

While not driving is a voluntary decision one can make and adhere to, becoming sick enough to require medical attention, injured in an accident, contracting a catastrophic illness that might exhaust the average person’s assets, or simply having a heart attack that immediately punches one’s ticket into the next world or oblivion, you will most probably receive, at least on short notice, very expensive emergency care of some sort before clocking out.

Therefore, while not driving is voluntary, requiring medical attention is often involuntary. One can plan on needing medical attention and treatment at some indefinite time in the future, as most people will require a government-backed annuity, Social Security, at some definite range of time in the future.

Assuming we are not going to remain healthy until the moment we die, we will require some medical attention, even if briefly. Therefore, requiring us to pay for health care insurance it is not only reasonable, but objectively rational, since by allowing people not to pay for their health insurance only insures that collectively, the rest of us will have to pay for the non-insured in the form of higher premiums, thereby increasing the costs of medical insurance and/or taxes to all those to do carry health insurance.

If these Social Security and automobile insurance arguments had been presented to SCOTUS, would the court have found a logical and reasonable basis for the ACA being constitutional under the commerce clause, as well?


For a lucid analysis of the ACA decision, read Sean Trende’s analysis at Real Clear Politics.


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