Swing Vote

The New Yorker ~ Barry Blitt

SCOTUS watchers are saying President Obama's "unprecedented" warning to the Supreme Court justices not to overturn his term's signature legislation, the Patient Protection and Affordable Care Act, aka Obamacare, was really targeted at Justice Anthony Kennedy. Appointed by President Reagan in 1988, Kennedy is considered the "swing vote" in either a 5-4 loss or 5-4 victory for the White House.

The court's focus during last week's oral arguments was on the act's individual mandate and whether it oversteps the Constitution's commerce clause. This argument is supported by the fact that 26 state attorneys general have sued the federal government over the constitutionality of the mandate. As telling was Justice Antonin Scalia's mocking comment last week that reading and trying to understand the 2,700-page legislation was a violation of the 8th amendment, barring the federal government from imposing cruel and unusual punishment. But was Scalia really joking?

Dan Henninger's column today in The Wall Street Journal, The Supreme Court Lands in Oz, explains why:

"Where better to begin than at the mandate itself. The mandate is the probable cause of the law's demise and so the source of the president's rage. In fact, the word 'mandate,' as argued before the court, appears nowhere in the ACA. What they were litigating was Subtitle F, Part I. Rather than 'mandate,' its Orwellian title is the 'Individual Responsibility Requirement.'

"We already know that 67% of polled people think the mandate, which compels individuals to buy health insurance or pay a penalty, is unconstitutional. That number might go closer to 100% if people got a look at the law's language.

"The ACA calls the act of purchasing insurance a 'required contribution.' Naturally, many will wonder if they can get out of this. That depends on the meaning of 'required contribution,' as defined in "Chapter 48—Maintenance of Minimum Essential Coverage, (e) Exemptions, (B) Required contributions:

"For purposes of this paragraph, the term 'required contribution' means . . .: (ii) in the case of an individual eligible only to purchase minimum essential coverage described in subsection (f)(1)(C), the annual premium for the lowest cost bronze plan available in the individual market through the Exchange in the State in the rating area in which the individual resides (without regard to whether the individual purchased a qualified health plan though the Exchange), reduced by the amount of the credit allowable under section 36B for the taxable year (determined as if the individual was covered by a qualified health plan offered through the Exchange for the entire taxable year)."

Now we know what former and one-term Speaker Nancy Pelosi meant when she told House members "You'll have to pass it to know what's in it." Well, that's exactly why we're where we are now.