Mom, Spinach, And The Supreme Court

                           

“Put on a sweater. I'm cold.”

I bet your mother said that to you. And she insisted that you eat your spinach because Popeye and other trained nutritionists said it was good for you.ⁱ And besides, there were children starving in Europe.ⁱⁱ That's what I was told, and I did as I was told, but I never really understood the ideas behind these pronouncements. I knew it was “for [my] own good,” but the details were a little hazy. And she also wanted me to get a good education. She wanted me to do better than herⁱⁱⁱ and my father.

Now I know it was a little like an insurance policy. If I paid the price^iv I might get the benefit. Might. There were no guarantees. It was gambling. Like the stock market. Or the lottery.

If you're going to gamble, though, the lottery's the way to go. The cost is low and the payoff could be humongous.^v But the chance of winning is infinitesimal.^vi Wishing won't make it so.^vii

Well, maybe it will. The issue may have more to do with intent and wish than with fact. At least that seems to be the Supreme Court's stand, and since they make the laws we have to take their decisions seriously.

Last June, when it rendered a judgment on the “Affordable Care Act,”^viii the Court ruled that, for the most part, the legislation passed muster.^ix Specifically the decision was made that the “individual mandate” was defensible, even if not the way Congress wanted the law. But to do so – to make the act Constitutional – it was necessary to “interpret” the law in a way contradictory to what Congress and the President expressly wanted. The Court decides what's legal, though, so they can do that, and substitute whatever suits their philosophy.^x

In this instance the bill was constructed in a manner which was expressly intended not to raise taxes. The individual mandate would result from Congress’s commerce clause powers^xi and the act contained a requirement that those who elected not to have health insurance, as was their right, would be subject to a “penalty” – a “shared responsibility payment.” But there would be no tax. This was specifically stated because raising taxes was viewed as unwise politically. According to the Huffington Post, “the actual text of the bill^xii uses the word 'penalty' – not 'tax.' Even Obama, while the law was still being debated in Congress, insisted in a September 2009 interview with ABC's George Stephanopoulos that his health care overhaul was 'absolutely not [emphasis added] a tax increase.'"^xiii But, as Derek Thompson, a senior editor of the Atlantic, noted in the publication's June 28, 2012 edition, “five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose^xiv using its taxing power. That is all that matters.” Consequently, in terms of legislation, the will of Congress – the Legislative Branch of government – is not relevant. Nor is that of the President. Congress could have legislated a tax if they wanted to, so even if they didn't want to do that, the Supreme Court has decided that what they view as Congress's intent trumps what it actually said and did.^xv Wishing can make it so. Congress wanted universal insurance and they could have legislated it. Therefore it's legal. It's also good for the individuals involved – whether they think so or not.

That was mom's view. She honestly believed that the sweater and the spinach were good for me and the children in Europe. They were a good insurance policy. Whether what she said made any sense, she could have made a logical case for her decision if she had chosen to. After all, she had the right to do so.^xvi And “That is all that matters.”

Which brings me to the lottery and my fortune. I'm sure the Supreme Court will support my contention that since I could have chosen the winning numbers – I was legally entitled to do so – I should be awarded all the prizes to date. My intent and my wish were to win. Wishing makes it so. Consequently I claim the $550 or so million up in the next^xvii “Power Ball” lottery. Even if I lack the luck to pick the right numbers, I'm certainly permitted to do so and “[t]hat is all that matters.”^xviii The Fourteenth Amendment, and all that's said about equal protection, make my claim as valid as those who favored the Affordable Care Act. At least according to the precedent set in deciding its validity. The Court will certainly see that my intent was to win, so even if I didn't choose the right numbers, I certainly could have chosen them, so it will be hard for the Justices to deny me the prizes without retracting their decision on Obamacare. They may not want to, but they've already decided that wishing, intent, and legal ability are what really count.

Oh. You have to buy a ticket? Well that shouldn't affect anything. I could have bought one.

Thanks mom. You were right about the sweater and the education. (I'm less sure about the spinach.) And some time soon I'll be able to buy a very expensive sweater. And one for you, too. There's no reason you should be cold.

Next episode: “Thank You Eve” – The Devil made me do it.

i      Spinach was believed to be very high in iron. As it turns out, the original calculations may not be accurate. In addition, the high oxalic acid content limits the absorption of iron. There are, however, high levels of vitamin A and antioxidants present, though the significance of their addition to a well rounded diet is not clear.

ii      Of course there were children starving elsewhere as well, but our focus was on the continent that had just gone through a world war, and we were Eurocentric – even though the word had not yet been coined. But we weren't self-conscious, nor were we guilt-ridden about our focus. Now you're more likely to hear a reference to somewhere in the “Third World” as we strive to prove that we are diverse, multicultural, sensitive, and inclusionary, in keeping with the modern vogue.

iii      Or is it “she?” I always have trouble with that construction.

iv      In these instances the price was directed at modifying my behavior (after all, how likely was it that my spinach would actually help the children in Europe, and who wants to get out of bed and go to school anyway – but mom's reassurance made it all worthwhile) rather than any fiscal layout, however to some even this seemed to be a little high in view of the negligible chance that there would be a specific payout. And if there were, we probably wouldn't recognize it.

v      Slang. It's not in my copy of the OED (Second Edition – 1991) but someday will Well not in mine, but in a new edition.

vi     Perhaps not. I think that it's possible to win every time. Legally. In fact, I could be a billionaire. And so could you. But more about that shortly.

vii    This, too, may need reevaluation.

viii   ACA and “Obamacare” are two ways that the more polite among us refer to this program. Others are not so generous, citing issues of individual liberty as the reasons for their concerns about the legislation.

ix    It was decided that the Federal Government could not withdraw existing Medicaid support from states that balked at significantly increasing the number of those eligible to receive this entitlement. Otherwise everything was copacetic.

x     The concepts of “checks and balances” and “separation of powers” no longer apply. The Supreme Court, like mom, is in charge, and there is no appeal from its decisions.

xi     Of course nothing in this clause (Article 1, Section 8, Clause 3 of the Constitution) that deals with this issue or even implies any connection to health care, but the Court has expanded its scope at will. According to Wikipedia, “During the post-1937 era, the use of the Commerce Clause by Congress to authorize federal control of economic matters became effectively unlimited.”

xii    I must admit that I never read the bill. It's far too long. In all likelihood, though, it wasn't read by most of the people who voted for it. They simply did what they were told.

xiii  June 26, 2009. Of course Congress's position, and that of the President, were well reported elsewhere as well, so that taxpayers would know that no one was raising their taxes.

xiv    If it wants to.

xv     What makes it a little harder for me to understand, however, is that the Court decided, when ruling on the legality of the individual mandate, that, despite Congress's wishes, which it ignored, this was a tax (intent was not relvant) and the commerce clause didn't apply, but, when dealing with the argument that the case should not then have been in court and decided, because taxes cannot be challenged until they have been paid (as per the Anti-Injunction Act of 1867) – and that has not happened yet – ruled on the case because, according to the Court, the act does not apply in this case since Congress used the word “penalty” instead of “tax,” signaling Congress’s intent that the Anti-Injunction Act should not apply in this case. The Court ignored Congress's wish that it not a tax, but after deciding it was a tax ruled that laws regarding taxes didn't apply to it because Congress didn't want a tax (intent was all that was relevant). I guess I don't understand because I have no legal education and lack the legal sophistication (sophistry?) to appreciate the nuances of the decision.

xvi     Some children's rights advocates might not accept this view. 

xvii    As well as the prizes in all previous lotteries.

xviii   Everyone else is equally entitled to win, so don't tell them my plan. At least not until I collect my fortune. After that I won't care and they can divide it all among themselves.