Torturing the Law to Argue that Obamacare is Unconstitutional

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Paul Krugman comments on the Obamacare court case being argued today:

We know, or I think we know, that a single-payer system — in which the government collects taxes, and uses the revenue to provide health insurance — would be constitutional. I mean, I don’t think the court is about to strike down Medicare.

Well, ObamaRomneycare is basically a somewhat klutzy way of simulating single-payer. Instead of collecting enough revenue to pay for universal health insurance, it requires that those who can afford it buy the insurance directly, then provides aid — financed with taxes — to those who can’t. The end result is much the same as if the government collected taxes from those under the mandate and bought insurance for them….It is in no sense more interventionist, more tyrannical, than Medicare; it’s just a different way of achieving the same thing.

Agreed. This whole case has a serious air of angels-dancing-on-the-head-of-a-pin. The individual mandate is enforced by a tax penalty, and if it were called a tax penalty it would be OK. But since it’s called a fine it’s unconstitutional! Congress can tax everyone and then provide them with health insurance — outsourced to a private company if it wants to. But it can’t require everyone to simply buy the exact same health insurance directly for the exact same price! Raich may seem like a precedent that binds conservatives to uphold Obamacare, but Raich was an as-applied challenge. The current case is a facial challenge!

And on and on. Maybe these distinctions really matter. But to an awful lot of people, they sure sound an awful lot like mere excuses to reach a conclusion they want to reach. That’s because, broadly speaking, it’s nearly impossible to argue that Obamacare is even close to pushing the envelope on Congress’s power to regulate interstate commerce. It’s aimed at a particular sector (healthcare) and uses a particular method (the mandate) to accomplish its goals, but lots of acts of Congress use slightly new and different ways of accomplishing legitimate goals. The methods of 1787 just don’t map precisely onto 2012.

We’ll see. If the conservative justices are simply bound and determined to make their mark and overturn Obamacare, they will. But if they do, they’re going to have to torture the law pretty hard to get there.

More here from Adam Serwer on possible outcomes.

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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