Climate change? Bigger stakes. Or, you know, the end of the rule of law and western-style democracy, and all sorts of shit, all because we tolerate constant lying. I don't particularly care about Obamacare. I care about bullshit. And this? This is some fucking bullshit right here. And that brings me to my first Jonathan.
Bernstein. Jonathan Bernstein was a fellow Berkeley grad student in Political Science, and now a blogger at Bloomberg. He was, actually, one of the early Political Science bloggers, and sort of helped get the ball rolling. He curses rather less than yours truly, but he can be forgiven for that. One of the points about which we disagree (there are several) is that Bernstein is indifferent to hypocrisy and disingenuousness. I care intensely about these things. In an academic setting, I'm fine with people playing devil's advocate. Intellectual debate, and all. Fine, fine, fine. In politics, though? We need good faith argumentation. Why? Because arguments need to stand for the totality of belief. Any one argument must represent a full set of beliefs. We can't actually have a complete debate about everything. So, what we say about Issue 1 must be indicative, to the degree possible, of what we believe about other issues. This may sound like I am requiring everyone to have Phil Converse-style constraint. I'm not. But, if people state a principle... a rule that they don't actually hold and follow, they are misleading. Their bullshit and hypocrisy is misleading, and that's a problem. And when you put bullshit rules into a legal system, problems ensue. The Texas ruling on Obamacare is a great example of why I hate hypocritical, disingenuous bullshit.
So what the hell is going on here? The short version is that Obamacare, as originally written, had three components.
A) The individual mandate
B) Subsidies
C) Regulations
Republicans, hypocritical, disingenuous bullshit-peddlers that they are, decided to challenge the constitutionality of A. Why? Well, they had actually fucking invented it. The Heritage Foundation invented it as the Republican counterproposal to what the GOP dubbed, "HillaryCare" back in the '90s, but A was the only part of Obamacare that polled badly, so they all decided to flip and say it was the most commie fucking thing ever as soon as a black dude with a D after his name put it in his bill.
In NFIB v. Sebelius, the Supreme Court upheld the constitutionality of A. Then, Congress passed, and President Pussy-grabber signed a bill into law repealing only provision A. (That stupid, fucking tax bill, riddled with so many holes that Trump doesn't know which one to grab.)
Enter a new lawsuit claiming that by repealing the constitutionally questioned provision, B and C automatically become unconstitutional, despite never having had their constitutionality in question on the substance.
What, what?! What the all fucking fuck?!
That's right. According to these very-stable-genius types, by repealing the constitutionally-questioned provision, which the Court upheld anyway, Congress made the provisions that were never constitutionally questioned automatically unconstitutional.
So, what part of the Constitution makes it unconstitutional for Congress to give subsidies to people to buy health insurance? None. These fuckwits aren't actually arguing that provisions B and C are unconstitutional, on the substance. They are arguing that Congress turned them into unconstitutional provisions by repealing a provision that was already ruled constitutional in NFIB v. Sebelius.
This is beyond batshit crazy. "Severability." Can one part of the law be removed from the books without the whole law going? This is an issue for courts, not Congress. When the Supreme Court rules on a law, if it is not severable, then the unconstitutionality of one provision makes the whole law go down. This is about the courts, not Congress. It is an instruction about how the law responds if a provision is struck down by the courts. What these fuckwits are arguing is that severability is a conceptual, metaphysical thing, such that when Congress actually, legislatively severed A from the law, they tried to violate some metaphysical truth that cannot be violated. The constitutionality of B and C is so inextricably linked to the existence of A that even Congress can't determine severability.
These asshats don't even grasp what severability is.
To repeat, without any reference to Obamacare: Three parts of a law: A, B and C. A is constitutionally questioned (not "questionable," but, "questioned"), whereas B and C are not. Congress repeals A. Does that automatically make B and C unconstitutional?
Only if you are the dumbest motherfucker in history (e.g. Donald Trump). Why not? See statement, "whereas B and C are not." I gave you the answer! What the fuck is wrong with these people?!
And now we come to the second Jonathan. That'd be Adler. Jonathan Adler is a fellow faculty member here at Case Western Reserve University. He is a law professor, and a prominent libertarian. He was also the scholarly leader of the anti-Obamacare movement. How'd that happen? Here's how it played out.
Adler is a very smart guy. He is also, to be clear, libertarian rather than conservative. His first reaction to Obamacare was: bad, but not unconstitutional. He then got together with some fellow libertarians and they actively tried to talk themselves into the belief that it was unconstitutional. This is the telling of Adler, from a talk that I attended on campus. I prodded him on the point, but we'll get to that.
This is, bluntly speaking, the wrong way to go. The term is, "motivated reasoning." If you have ideological reasons to believe something, and try to talk yourself into that belief, you will succeed. Even if it's bullshit, you will succeed, most of the time. Why? Because it'll be more comfortable that way. You will reduce your cognitive dissonance, and most people will care more about reducing their cognitive dissonance than straight-forward assessments of correctness.
What's the right way to go? If you find ideological comfort in a proposition... try to talk yourself out of it! That's intellectual rigor. That's what I do. If you are intellectually comfortable, you aren't thinking. Thinking should be difficult, uncomfortable, messy, ugly, and unlike the Hobbesian line that may be coming to your mind, it should be a long process. If a belief gives you comfort, push hard on that belief to make sure you aren't just coddling your own little snowflake brain.
Sorry. Rant. Anyway, not surprisingly, Adler and company talked themselves into the belief that Congress doesn't have the power to tax unless they call it a tax, or some such whatever. Here was his story, to explain why it was so vital for the Court to strike down the mandate-tax-thing. Imagine some hermit, living out in the middle of nowhere, never interacting with anyone ever. Now, technically, our hermit has no income and never interacts with the healthcare system, and hence has no legal liability to pay the mandate-tax-whatever and is unaffected by Obamacare. But, Adler actually argued that because the law called it a mandate rather than a tax, the law called the hermit some kind of a scofflaw, which was horribly injurious to him. To the hermit living out in the middle of nowhere, never interacting with anyone, much less the government.
Not kidding here. This was the argument he made when pressed.
Do you feel sorry for this victim? Do we need to adjust the legal system to make sure such hermits aren't injured by the "scofflaw" label (Adler's wording) imposed by calling the mandate a mandate rather than a tax?
Or do we take from this that perhaps, if an idea gives you ideological comfort, you should press against it rather than try to talk yourself into it. Doing the latter can get you to make some rather silly arguments.
Now, why does this story retain its value to me? Who cares if some of Jonathan Adler's arguments are weaker than others? I'll be blunt here. I'm intentionally picking on the weakest of his arguments, to make a point. The point, though, is that there is danger in pushing yourself in this direction. It leads to the kind of disingenuous bullshit that gave us the Texas ruling.
Where does Adler stand on that? He called bullshit on the Texas judge and the whole lawsuit. He isn't having any of this. It's pretty damned hard to find any legal scholar who buys this nonsense because it is so fucking loony. Republicans are demanding that the courts strike down, as unconstitutional, provisions that substantively don't violate any part of the Constitution based on a newfound doctrine of meta-unseverability. Holy fucking shit is that stupid.
And disingenuous. And hypocritical. Because they would never accept this in any other context. This is the result of a bunch of frothing-at-the-mouth dipshits who will do anything and accept any argument if it is anti-Obamacare.
Will this lawsuit succeed at the Supreme Court level? I don't know. I doubt Roberts will buy it, given what he did in NFIB v. Sebelius, but Ginsburg could drop dead at any moment. Thomas and Alito are straight-up movement conservatives, meaning they don't have a shred of intellectual integrity, and anyone who trusts either Gorsuch or Kavanaugh to show integrity is a fool. Conservatives can talk themselves into anything when it comes to arguments against Obamacare.
Remember, the whole law started at the Heritage Foundation, then a Republican governor signed it into law at a state level. The GOP didn't decide it was commie-nazi shit until a black dude with a D after his name signed on. Never doubt the modern GOP's capacity to talk itself into bullshit.
Like I said, I don't give a shit about Obamacare. What's that I hear? Whistling? Ooooh, pretty gravestones. This country and this planet have way bigger problems, and any debate over Obamacare is reduceable to ideology. I am only concerned with questions that are not reduceable to ideology at this point. Or rather, I am opposed to authoritarianism and such, and yes, that's ideology, but we've got bigger fish to fry, like not frying the fucking planet, not letting a psychopathic nutjob president press a button that would selectively fry parts of the planet, opposing the rise of authoritarianism, and so forth. Obamacare? Small fries.
However, the rise of disingenuous, hypocritical bullshit is deeply intertwined with the bigger challenges. Once you start building a legal system based on the kinds of insane doctrines that the GOP is using here? There ain't no more legal system. Rule of law is already in pretty bad shape. That, in the long run, is more important.
Bullshit has a destructive force like water. You don't think it's doing much? Take a look at the Grand Canyon. The Grand Canyon is one of the most beautiful places on earth. Bullshit creates equivalent ugliness, through gradual erosion of truth.
Fuck Obamacare. Worry about that.