The ACA Heads to SCOTUS

The ACA Heads to SCOTUS by MSW

I also have always believed that this penalty is, in fact, a tax, and that the Court will likely quickly rule that it is and that further consideration of its constitutionality must wait until the tax is collected, leaving all other issues in abeyance until that occurs – although, frankly, it would be an act of judicial malpractice to let clients go forward on a what would be a Quixotic quest against the taxing power to bring this up again.


That is the first hurdle and it is the out that the Court is looking for to avoid the complicated constitutional question. The second is that the dollars funding the public relations campaign against the law are not brought out because the donors object to the mandate, but because the non-wage income payroll taxes which will take effect soon are costing rich people money - especially since there are no offsets to paying them or passing the cost to customers - essentially turning these taxes into a VAT. Indeed, a VAT would be less objectionable than keeping these taxes in place, because the burden is more broadly shared, more visible and refundable at the border.

As an aside, the objection to using the threat of loss of federal funding to enforce Medicaid reforms is a long objection of so called “Federalists” (who are in truth, states rights supporters, which is something different) has never gained much traction, from using highway funding to enforce the 55 mile per hour speed limit to using the same funding to force a 21 year old drinking age. It is an unsophisticated objection. I made the same argument in Iowa Model legislature when in High School – contending that the clause prohibiting differing regulations of commerce or revenue applied. Any first year law student or historian will point out that this clause applies to international trade, not the regulation of interstate commerce or the use of intergovernmental funds. We suspect that the Court has likely allowed it to be argued to kill this argument once and for all. To expect either a radical rethinking of the Commerce Clause or intergovernmental funding requirements will occur at this time is the legal equivalent of believing in unicorns.

The opposition to reform is well funded and sophisticated. We believe it has nothing to do with mandates, the Commerce Clause or Medicaid funding. The real reason conservative major donors don't like the law is the funding mechanism for much of reform. Wealthy donors are writing checks because of provisions creating additional taxes on un-earned income that fix Medicare Part A funding and fund other health care reform, essentially turning the Hospital Insurance Tax into a Value Added Tax with an exemption on profits paid to the 98%. Fighting for repeal on this basis, however, would only be politically unpopular. Only judicial repeal would of the whole law stops this tax hike, although there is no justification for not severing this portion from the law, even if the mandate falls.

Note that whenever this tax applies to those whose holding operate in less than a perfectly competitive market, in other words to most commerce in 21st century America, the costs will likely be passed to the consumer and it would be more honest to simply enact a Value Added Tax or VAT-like Net Business Receipts Tax.

Reinterpreting Revelation

The New York Times Book Review section is review Elaine Pagels new book on the Book of Revelation, Revelations: Visions, Prophecy,  and Politics in the Book of Revelation .  You can read the review here. 

Pagels examines the imagery of the book and ties it into the controversy in the late first century over whether new converts must adhere to the Ancient Law and keep Kosher.  It turns out that John of Patmos did not like Gentile Christianity, which he saw as tainted by the corruption of imperial Rome itself.  The nasty imagery, therefore, is not directed at some future Anti-Christ, but at the Pauline Church of the day.  If John was a committed Jew, writing after the destruction of Jerusalem and the exile of the Jerusalem Church, one can see the point of his resentments and his belief that God would come and set things right, especially since his side had effectively lost.

As someone who has made of study of apocolyptic literature, I find this finding incredibly freeing.  The return of the Lord is not just around the corner, at least not as far as geo-politics is concerned.  Instead, the return of the Lord is a very personal phenomenon - coming both at death (since Christians are a resurrection people) and if you are listening, before that.  We are meant to encounter the Lord Jesus in others who need us, and to be Christ to them as well.  Indeed, a quick look at the history of end-times prophesy shows it often has more to say about the current political climate than it does about the future, which is why Islam, the Protestants or the Papacy are often its targets. 

Every age thinks it is the last one.  So far, none of them have been right.  While it is very spiritual to wait for the Lord, doing so does not absolve us from action where it is appropriate.  If you wait for God to solve all of your problems without effort, you will be waiting for a long time.  The parable of the ten talents indicates that God expects action in accomplishing his works - and none of that action involves slaughtering your enemies.  Indeed, the hope of John of Patmos that the Lord would return to smite the Gentile Christians could not have been more wrong.   He won't smite the Muslims, the Democrats or the 1% either.

What the Lord expects from us is Love, both for our enemies and each other.  If we are not doing that, we are acting at the promptings of someone else.

This is not to say that nothing apocolyptic is on the horizon.  The current situation cannot hold, either economically or politically. It cannot be God's will that more and more people control less and less wealth, or that we allow agriculture or industry to continue to poison the water supply.  The Church of Rome also cannot hold to its current course.  The old biases against women and gays are dying off as those who hold to them experience their own personal apolyptic events and those who remain will have no patience for maintaining them.  Neither can we continue to demand that workers make due with less and limit their fertility accordingly while our productive capacity goes the other way - although we must find a way to expand to meet that productivity without despoiling the planet.

All this is great fodder for apocloyptic stories, although you are more likely to find these stories in a cyber punk novel rather than in religious literature.  Mostly, however, current conditions are a call for action.  The real message of revelation is that God will set things right - but it will happen through us rather than through some kind of cosmic battle - which is actually a great relief (unless you are a Dominionist or a Catholic Trad).