I am NOT making this stuff up! ;)
Obamacare’s Survival Comes Down to … Fish?
bloomberg.com-
Consider the fish. Is it a tangible object? Not according to a five-justice majority of the U.S. Supreme Court, and the bizarre case this week on the metaphysical status of fish could end up having implications for whether Obamacare survives a high-stakes challenge.
The high court ruled on Wednesday on an eccentric application of a 2002 law that criminalizes the destruction of “ any record, document, or tangible object” to thwart a federal investigation. The narrow question before the court was whether illegally caught grouper that had allegedly been thrown overboard by a commercial fisherman could qualify as tangible objects. A five-justice majority said no: The line in question, from the Sarbanes-Oxley Act, which was passed in response to the 2001 Enron accounting fraud, does not apply to the destruction of fish. That was vindication for John Yates, 61, who had been convicted of catching undersize grouper off the Florida coast and then dumping the evidence to avoid a citation.
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If fish jurisprudence extends to health care, however, we have to look at the dissent in the Yates case. Justice Elena Kagan wrote the dissent, which was joined by Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas. Kagan mourned “overcriminalization and excessive punishment” in the federal code. “But we are not entitled to replace the statute Congress enacted with an alternative of our own design,” she added. That’s pretty much verbatim what Obamacare foes, representing Republican politicians and conservative activist groups, will argue on March 4.
So do we count Justice Kagan as a likely vote against Obamacare? She sure seems to find solace in the certainty of dictionary definitions, at least in the maritime setting. “A fish is, of course, a discrete thing that possesses physical form,” she wrote, citing the legendary Dr. Seuss, author of One Fish Two Fish Red Fish Blue Fish (1960). The justices’ law clerks doubtless will spend the weekend mining great children’s literature for references to insurance coverage and tax benefits.
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