Beez in the Capitation: How Nicki Minaj and John Roberts are Both Constructionists at Heart

When in the Course of human/corporate person events shit gets to the point where John the Supreme Corporate Baptist himself starts fantasizing about socialism, you can usually count on those time-tested right wing psyops tactics to coax him back from the ledge long before George Will is forced to break a sweat. And so one naturally wonders of a violent historical aberration like Obamacare, to whom did the Chief Justice turn for moral guidance during that lonely, tormented month when the Federalist Society thought police set loose the full phone bank of cognitive repo men on the guy? Theory: it was Nicki Minaj. For one thing, the guy has not one but two kids in middle school. Herewith, the slightly more compelling evidence:

Fourteen days before the Supreme Court announced its decision upholding the Affordable Care Act, the rapper Nicki Minaj prophesied the spirit of its legal argument while conducting an otherwise apolitical round of fan relations with a few of her 13.3 million Twitter followers.
The saga began on the feed of @SharJackson, who is probably best known as the actress Kevin Federline left for Britney Spears when she was pregnant with their second (and her fourth) child. Jackson's best friend Yvette Wilson, with whom Jackson had co-starred on the nineties television show Moesha, was on her deathbed at age 48 with Stage 4 cervical cancer. A few months earlier, a friend had organized an online fundraiser to pay for her medicine, but the $13,000 or so they'd raised mostly after a blog post in mid-May had fallen far short of the $50,000 goal. This was, as Minaj saw it, a disgrace. And so when @SharJackson finally announced

I wanna thank all my tweeties for their prayers but god has chosen to take my sister Yvette home…

Minaj responded with a brief but trenchant Twitter tirade:

What's sad is that when Yvette was bringing home the bacon, the gov't was probably taking millions. On her death bed tho, #NoWhereToBeFound
And had to raise $ for MEDS!!!
That should be a God given right! Even with Obama Care, too much involved. Just give FREE health care to all.

Prior to this moment Minaj had been a subtle champion of the individual mandate, going so far as to mock a theoretical hater for settling for "basic insurance and it don't include dental" in a song released a few months after the passage of the Affordable Care Act. But at the end of the day, she could not in good conscience taunt her rivals with lines like, "As the IRS bitch I'm paying for your healthcare" if beloved childhood television personalities were being reduced to online panhandling for cancer meds. And so, perhaps inspired by her surroundings in Berlin-where half the per capita health care spending affords 1.3 times as many doctors and 2.6 times as many hospital beds per capita as in the United States-more likely simply emboldened by her famously enormous balls, she took her grievance directly to the commander in chief:

@BarackObama I wouldn't mind the millions they took if it were going to health care. Why should a poor person struggle to pay for MEDS sir?
@BarackObama I just don't understand why people have to worry about their "medical bills" while they're on their DEATH BEDS Mr. President

There was no answer from the president that night, but somewhere John Roberts was working on the beginning of one. He concurred with Minaj that "too much involved" was the central problem plaguing the Affordable Care Act. Too much tortured language, to begin with. The attorneys charged with arguing the White House's case against the various legal challenges against the bill explained the bill as a "novel exercise of power" to "rely on market mechanisms and efficiency" to harness the "unique nature of this market" to "force individuals into the insurance market" by the rationale that they possessed "a certain pool of actuarial risks that would actually lead to lower premiums"; which is to say:

[t]he rationale that they think ultimately supports this legislation, that, look, it's an economic decision, we aggregate the decision…it's trying to solve it in a way that nobody has ever tried to solve an economic problem before, which is saying, you know, it would be so much more efficient if you were just in this market.

In a single day's oral arguments the word "market" had been uttered roughly 200 times, to say of the two dozen invocations of "risk", and ten each of "actuary" and "efficiency", moving Justice Scalia to at one point blurt out: "Isn't that a very artificial way of talking about what somebody is doing?" And what about the problematic term "individual mandate"? Wherefore this mania to couch in the rhetoric of rugged individualism such an ancient and decisively cooperative institution as tithing to care for the sick?

The Government repeats the phrase "active in the market for health care" throughout its brief, but that concept has no constitutional significance…Our precedents recognize Congress's power to regulate "class[es] of activities," not classes of individuals, apart from any activity in which they are engaged, see, e.g., Perez, 402 U. S., at 153 ("Petitioner is clearly a member of the class which engages in ‘extortionate credit transactions.'") The mandate primarily affects healthy, often young adults who are less likely to need significant health care and have other priorities for spending their money…If the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is its defining feature.

After all, Roberts continued, the Constitution's framers were "not metaphysical philosophers" but "practical" men who viewed their task, in the words of a 1905 Supreme Court decision on liquor taxation, as "prescribing in language clear and intelligible the powers that government was to take." And in practical terms, this was a tax. Nicki Minaj knew it, her 13.3 million followers knew it, and the Founding Fathers, wherever they were, knew it:

It is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. But from its creation, the Constitution has made no such promise with respect to taxes. See Letter from Benjamin Franklin to M. Le Roy (Nov. 13, 1789) ("Our new Constitution is now established…but in this world nothing can be said to be certain, except death and taxes").

As it happens Benjamin Franklin was the preeminent health care policy pundit of the age, and an ardent champion of universal health care. But as a practical man of an era before it became common for such men to endow "the market" with metaphysical properties his ideas on the subject are perhaps more illuminating for their practical applications than their philosophical ones. And in the halcyon era when "the market" denoted a physical space at which commerce was transacted it was manifestly clear that the sick and diseased had no place there. Indeed, disease was understood largely to be an unfortunate side effect of freer trade and more grueling labor. The sick did not belong in "the market", nor did they fetch large sums at slave auctions; at best they were "inactive," period; at worse, they infected their inaction throughout the entire enterprise, as founder Benjamin Franklin observed in a 1731 letter to his youngest sister about a smallpox epidemic:

We have had the small pox here lately, which raged violently while it lasted…Mr. George Claypole, (a descendant of Oliver Cromwell) had, by industry, acquired a great estate, and being in excellent business, (a merchant) would probably have doubled it, had he lived according to the common course of years. He died first, suddenly; within a short time died his best negro; then one of his children; then a negro woman; then two children more, buried at the same time; then two more: so that I saw two double buryings come out of the house in one week. None were left in the family, but the mother and one child, and both their lives till lately despaired of; so that all the father's wealth, which every body thought, a little while ago, had heirs enough, and no one would have given six pence for the reversion, was in a few weeks brought to the greatest probability of being divided among strangers: so uncertain are all human affairs…

Twenty years later when he was petitioning Pennsylvanians to fund America's first hospital, however, he appealed to their better angels. "Administering comfort and relief to the sick" was, he explained, Christianity's proudest contribution to civilization.

History shows, that from the earliest Times of Christianity, in all well-regulated States where Christians obtain'd sufficient Influence, publick Funds and private Charities have been appropriated to the building of Hospitals, for receiving, supporting and curing those unhappy Creatures, whose Poverty is aggravated by the additional Load of bodily Pain.

Of the numerous asterisks in this ostensibly sweeping declaration, "well-regulated" presented perhaps the thorniest, as Yvette Wilson learned as the often extortionate American health care system conspired to aggravate her bodily pains with the additional insult of poverty in the months before her death. For today American health care is an extremely active and monstrously inefficient market that has been in numerous ways deliberately rigged to spread poverty like tuberculosis throughout the previously unafflicted classes of the insured and relatively affluent. The particular strain that infected the comedian in all likelihood originated when a somewhat uniquely perverse law called the Medicare Modernization Act went into effect in 2006 that changed the Medicare reimbursement guidelines for pharmaceuticals in various ways that ultimately favored brand name over generic drug manufacturers. An epidemic of rampant cost-cutting among the generic drugmakers ensued, leading quickly to some of the more harrowing FDA inspection reports the industry had produced in recent memory; a few rounds of work stoppages and plant closures followed. By 2009, the system was beset by a medicine famine of unprecedented proportions, with cancer drugs in particularly short supply; of the 300-400 drugs that have experienced shortages in the three years since, 44 are oncology drugs.

The market responded: by 2010 hospital purchasing departments were reporting an onslaught of emails and flyers from obscure, newly-formed independent distributors advertising scarce drugs for sale at vastly inflated prices. The most egregious markups were on the drug cytarabine, which raises a late-stage leukemia patient's odds of survival from roughly zero to 50%; last year a two-year-old Miami-based distributor called Allied Medical Supply offered the drug for $995 a vial, a 6,213% markup over its typical price. The shortage most likely to have affected Wilson's case was paclitaxel, the chemotherapy drug most commonly used in late-stage breast, ovarian and cervical cancer cases. A seven-year-old Colorado distributor called Superior Health Care emailed hospitals last year offering that drug for $500 a vial, a more modest 669% markup over its regular price of $65. Last year a consortium of 42 nonprofit acute care hospitals spent two weeks tracking every sales pitch it received for drugs on the FDA shortage list, reporting 1,745 pitches from 18 distributors in all and an average markup of 650%. An estimated 550,000 cancer patients missed or postponed a chemotherapy session due to the shortages in 2011.

The hoarding of potentially lifesaving drugs and information about medical advancements was among the innumerable grievances that drove the Founding Fathers away from Britain, as the Boston lawyer Benjamin Kent lamented wryly in a 1766 letter to Franklin about a promising new gout remedy:

And I am So confident of the Virtue of that plant, I would venture a Voyage to England upon the Credit of it. But I suppose Some of the Faculty will find it out, keep it a Secreet as they have done the Method of American Inoculation, and then run away with the Profit and Credit of it too.

But the unhappy creatures had considerably less to extort away from them in those days, and entrepreneurs like Allied founder Anthony Minnuto and Superior CEO Mark Snyder had yet to hone their sales pitches and multiply their miserable impact on the American economy as they have today. Minnuto was not even in the medical supply business before he founded Allied in 2008; he was a real estate speculator and evangelist of something he called the "PASSIVE INCOME FOR LIFE" system, which claimed to empower followers to build enough wealth to retire on within a single month by learning the fine art of acquiring apartment buildings with no money down.

Thousands of South Floridians were flooding into the more dubious corners of the pharmaceutical business that same year, as state attorney Michael Satz observed in a report on the sudden surge in organized prescription painkiller "tourism" to south Florida between late 2007 and 2009, a period during which the number of strip mall "pain clinics" in Broward County county surged from four to 115. Supplying the sprawling "pill mill" network that fuels that other unprecedented health care crisis, opiate addiction, is a huge and profitable source of business for most independent drug wholesalers, and until recently the industry has barely been policed. Superior was a rare exception: in October 2008 the DEA fined the company $200,000 and suspended its controlled substances license for maintaining "inaccurate and incomplete records" of its hydrocodone (Vicodin) business "on at least 58 separate occasions" in 2007; then in 2009 the Colorado and California Boards of Pharmacy both filed suit against Superior alleging that the company had resold drugs purchased from unlicensed proprietors, shipped controlled substances without a license during the DEA investigation and a host of other infractions.

This censure did not exactly put the fear of God into Myers et al; when House Oversight Committee ranking member Elijah Cummings launched an investigation into drug price gouging last fall, the company's attorney simply ignored his phone calls and requests for information. Price gouging on medication is only illegal in three states, and Cummings is, as a member of the minority, for all intents and purposes powerless to do anything. Meanwhile Oversight chairman Darrell Issa got to work on a report pinning blame for the shortage crisis on overzealous FDA inspectors and the insufficiently profitable reimbursement guidelines set by the Medicare Modernization Act. Without mentioning the role of wholesalers like Superior and Allied, the report essentially defended their virtue, liberally referencing the analysis of former Obama health care adviser Dr. Ezekiel (brother of Rahm) Emanuel along with the natural infallibility of the metaphysical Market to do so:

Normal Market Forces Prevent Shortages
Why can milk always be found at the grocery store and fuel is always available at the gas station, but scores of critical drugs are now unavailable to people who need them? In a well-functioning market, shortages are virtually nonexistent; and when shortages appear, they are resolved quickly. Basic economic theory shows that when a product becomes more scarce…[its] price rises. The higher price provides an incentive for both consumers and suppliers.

But there is an old saying about "normal market forces": they consist of greed and fear; the rest is bullshit. What men like Issa and Emanuel are ultimately laboring to sustain is a magnitude of greed commensurate with the average Joe's fear of death. As Minaj contemporary Lady Gaga's own crusade against the conditions that led one of her fans to commit suicide demonstrates, that fear is falling precipitously among young people: a veteran now kills himself every 80 minutes. Drug overdose deaths, mostly from prescription painkillers, now number some 40,000 annually. And you and I and Nicki Minaj are paying for it: nearly half the overdose victims in many states are Medicaid recipients. And that is by design: Medicaid patients were a primary target market for Oxycontin when Purdue Pharma originally introduced the drug in 1996, and the company has settled Medicaid fraud lawsuits with numerous states, most famously Virginia, where three Purdue executives pled guilty to felony mislabeling in 2007. Less famously, one of the first states to sue was West Virginia, which remains today the nation's leader in prescription drug overdose deaths. But the company retained< a well-connected attorney named Eric Holder to negotiate with the state, and ended up settling for only $10 million, a pittance next to the $630 million Virginia managed to squeeze out. Perhaps with this great shame in mind, West Virginia senator Jay Rockefeller, who chairs the commerce committee, is now leading the campaign to outlaw pharmaceutical price gouging and end the drug shortage crisis, which is estimated to be delaying or depriving treatment for as many as 40% of the state's cancer patients.

Whatever the case, though: as oblivious as the Beltway's corporate speechmakers generally sound when congratulating themselves over how satisfied we all are with the health care system, it is an international embarrassment verging on a Philip K. Dick novel. What is so heartening about Nicki Minaj and a lot of her contemporaries is that they have refused to follow their lame president's example by resigning themselves to this dystopian status quo, and they won't let their fans lose hope either:

I'm fighting for the girls that never thought they could win.
Cause before they could begin you told them it was the end
I'm here to reverse the curse that they live in

There has been talk that an official White House invitation might be in store for Minaj to air her views on health care directly to @BarackObama the person, and certainly the cursed generation could use a decent lobbyist on the issue. But surely until last week some shrewd member of the campaign bro-taucracy would have taken the opportunity to brief the young thought leader on the critical messaging importance of referring to Obamacare as an "individual mandate" and not a "tax." Thanks to John Roberts, they will now at least be forced to speak to Nicki Minaj and her 13.3 million followers in their own language, as the Founders intended.