Under the federal Privacy Act, it is illegal for federal agencies to reveal a person’s confidential medical information. Nevertheless, the Social Security Administration did exactly that when it revealed to another agency that a California man is HIV positive. In a 5-3 decision yesterday (Kagan was recused) the Supreme Court effectively held that this man is completely without remedy for this violation of his privacy:

In a 5-3 ruling, the high court decided Stanmore Cooper’s claims of mental and emotional distress are not covered under the Privacy Act.

“The Privacy Act does not unequivocally authorize damages for mental or emotional distress and therefore does not waive the government’s sovereign immunity for such harms,” Justice Samuel Alito wrote for the conservative majority. . . .

“The person who is subject to this, to this embarrassment, this humiliation, doesn’t have out-of-pocket costs, but is terribly distressed, nervous, anxious, and all the rest,” Ginsburg said [during the oral argument on the case]. “The act that the Congress is reaching, the impact is of that nature. I mean, pecuniary (monetary) damages ordinarily attend conduct that embarrasses, humiliates you, causes mental distress.“

To be fair, the decision did not cut off the rights of someone who is fired or suffers other tangible losses due to a similar violation of their privacy, but it establishes that there is no remedy if the government simply shames someone by revealing their most embarrassing medical records. Moreover, it is worth noting that the plaintiff in this case is not the most sympathetic possible victim — his HIV status was revealed after he illegally failed to disclose it on an application for a pilot’s license.

Nonetheless, the rule announced yesterday could have sweeping implications. Programs such as Medicare, Medicaid, Social Security Disability and the veterans health system necessarily will gather a great deal of medical information about many, many Americans — and there should be very real consequences if the agencies that run these programs fail to treat that very sensitive information with confidentiality and respect.

Let’s be very clear about how Medicaid works. Medicaid offers each state a pool of money to provide health care to low income Americans. States can take or leave the money if they wish, but if they take the money, they agree to comply with certain conditions. If a state violates one of these conditions, the Secretary of Health and Human Services can dock their funds or potentially cut off funds entirely if the violation is sufficiently egregious.

This was the system in place when President Johnson signed Medicaid into law in 1965. It was the system in place after President Reagan expanded it to cover many new pregnant women and children in 1984. It was the system in place when Reagan expanded Medicaid again in 1985 and in 1988. And it was the system in place when new expansions were added in the 1990s. It each expansion, the bargain remained the same, states could accept the new conditions added by these expansions, or they could walk away from Medicaid. If they took the money and failed to comply with the conditions, they risked having their funding cut off.

In 2010, President Obama followed in his predecessors’ footsteps by expanding Medicaid through the Affordable Care Act. Yesterday afternoon, the Supreme Court flipped out. Although the five conservative justices’ objections to this most recent expansion often rested on other grounds, they almost always circled back to the same objection. The Affordable Care Act expands Medicaid, and the Secretary retains the exact same power she has had since 1965 to potentially cut off all of a state’s Medicaid funds if a state refuses to comply with any of the new conditions — so Obamacare could cause these states to lose all their Medicaid funds if they don’t comply with the new conditions.

Now, let’s be clear. If these justices are right that this Medicaid expansion is unconstitutional, than it also means that every single expansion since 1965 is also unconstitutional. That means stripping millions of the poorest and most vulnerable Americans of their only access to health care. Immediately.

Nor will the fallout be limited to Medicaid. As Justice Ginsburg pointed out, many universities received federal funding in 1972, when Congress enacted Title IX’s requirement that they must cease discrimination against women if they want to keep their funding. This too would be unconstitutional under the conservative justices’ theory. As would every other similar expansion to these education funds after they were first enacted.

It is rare that a single moment in a Supreme Court argument perfectly distills the difference in world view between the Court’s liberals and its conservatives, but such a moment occurred today. When Solicitor General Verrilli explained, correctly, that no Secretary has ever used their power to cut off a state’s Medicaid funding completely, Justice Alito expressed bafflement that any person could possess such an awesome power and refrain from using it. How, Alito wondered, could it be a “realistic possibility” that “we are not going to cut off your old funds, and just let that condition sit there?”

Justice Kagan soon weighed in with this answer:

[W]hen the Secretary withdraws funds, what the Secretary is doing is withdrawing funds from poor people’s health care, and that the Secretary is reluctant and loathed to take money away from poor people’s health care. And that that’s why these things are always worked out. It’s that the Secretary really doesn’t want to use this power, and so the Secretary sits down with the State and figures out a way for the Secretary not to use the power.

To Justice Alito, power is something that is to be wielded — just as he and his fellow conservatives appear dangerously close to casting the Constitution aside and striking down the Affordable Care Act simply because they can. To Justice Kagan, power is a sacred trust granted to our national leaders on the promise that they will use it lawfully and compassionately.

There are five of him, and only four of her.

It is probably not the case that the Supreme Court is poised to strike down the entire Affordable Care Act if it finds just one provision of it unconstitutional. Among other things, after conservative superlawyer Paul Clement spent nearly twenty minutes trying to convince a skeptical panel of judges that the whole law must fall, his conservative ally Justice Alito asked Clement a question no advocate ever wants to hear: “What would your fallback position be if we don’t accept the proposition that if the mandate is declared unconstitutional” the entire statute must fall? Apparently, even the Supreme Court’s right flank was considering other options besides Clement’s overreaching theory.

Unfortunately, however, the justices gave his proposal far more credit than it actually deserves. Under longstanding law, a court may not invalidate any constitutional part of a law unless it is “evident” that Congress would have preferred no law to some law. Yet the justices peppered the law’s defenders with uncertain questions about how they should proceed — with Scalia finally outright saying he would simply eliminate President Obama’s signature accomplishment altogether. Every single one of these questions were inappropriate. Given the exceedingly high presumption in favor of retaining as much of the law as possible, the justices must resolve any of their uncertainties in favor of the Affordable Care Act.

The Court’s conservatives did not get this. Worse, Justice Kennedy at one point seemed to suggest the Court’s duty was to resolve any uncertainties in favor of the insurance industry:

When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.

To be fair, it is not entirely clear how Kennedy’s fears cut, and as Lyle Denniston suggests, they could ultimately wind up saving the law. If Kennedy is genuinely concerned that any decision striking down the individual mandate will risk nuking the insurance industry, he could ultimately conclude that the least worst outcome is simply to uphold the entire law. Indeed, the problems created by trying to remove just one provision from a comprehensive economic regulatory scheme demonstrate the wisdom of a decision Kennedy previously joined saying that the justices should not generally be in the business of doing so.

If they ultimately decide to throw out the entire law, however, the result will be bedlam. Much of the Affordable Care Act has already taken effect, and cannot simply be stopped on a dime tomorrow:

• Stripping Young People of Care: At least 2.5 million young people now have insurance because of the Affordable Care Act. All of them would be cast back into the wilderness if the whole law were struck down.
• Blowing Up Medicare: Approximately 100 million Medicare claims are processed each month using a formula that was altered by the Affordable Care Act. If the entire law were struck down, new rates could not be calculated under the old, pre-ACA formula until after a rulemaking process that can take months before is completed. The result would be massive delays in payments to health providers throughout the country.
• Pulling The Rug Out On Retirees: The Affordable Care Act also provides thousands of Americans the opportunity to retire early and still remain insured until they become eligible for Medicare. Striking down the entire law could yank insurance away from many near-elderly Americans who retired solely because of the promise that the Affordable Care Act would be there for them.
• Ungrateful States: Many of the states that are currently challenging the law have nonetheless accepted millions of dollars worth of grants under the Affordable Care Act. If the law is struck down, it’s likely that this money would need to be returned immediately, further stressing already tight state budgets.

Simply put, today should have taught the justices a lesson. There is a reason why the Constitution leaves difficult questions of economic policy to elected officials and not to unelected judges. These choices are difficult, they are not easily unwound and they should be made by someone who actually has a mandate from the people to make them.

Just three months after Romney proclaimed that “corporations are people,” he has pledged to ensure that the Supreme Court will continue to share this delusion. During editorial board meeting yesterday, Romney promised that if he is elected, he will model his Supreme Court picks after corporate America’s most favorite justices:

Republican presidential candidate Mitt Romney said if he had the opportunity to appoint a Supreme Court justice he or she would be in the mold of Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts.

“Their approach is the approach I would encourage,” he said. “I would try to find those who would follow the Constitution.

Setting aside the obvious tension between Romney’s promise to appoint justices like Roberts, Scalia, Thomas, or Alito and his promise to appoint justices who will “follow the Constitution,” it’s important to note exactly what Romney is endorsing by supporting these four justices:

• More Corporate Money In Elections: Every single one of Romney’s model justices were in the majority in Citizens United. That means that every single one of them believes that wealthy corporations should have a nearly unlimited power to buy and sell American elections. Every single one of them also voted to undermine public financing laws in a way that eviscerates candidates without well-moneyed backers’ ability to compete in elections.
• Judges For Sale: Every single one of Romney’s model justices voted in Caperton v. Massey to allow a wealthy coal CEO to pay $3 million to elect a sympathetic justice to a state supreme court in order to stack that court with jurists who would overturn a $50 million verdict against his company.
• Corporate-Owned Courts: Every single one of Romney’s model justices voted to give corporations a nearly unlimited power to force workers and consumers into a privatized, corporate-run arbitration system that overwhelming favors corporations. Under their vision, real courts run by neutral judges are off limits to anyone a clever corporation does business with.
• Dividing And Conquering Ordinary Americans: Every single one of Romney’s model justices voted in AT&T Mobility v. Concepcion to allow corporations to strip their workers and consumers of their ability to bring class action lawsuits. Because of this decision, corporations now have a nearly unlimited power to cheat the people who do business with them — so long as they only do it a few dollars at a time.
• Corporate Immunity To The Law: Every single one of Romney’s model justices voted to give generic drug makers immunity to key state laws after one of their drugs caused a condition called tardive dyskinesia in many of the people who took it. Tardive dyskinesia is an horrific neurological condition that causes sometimes crippling, uncontrollable bodily movements, often in the face:

Roberts, Scalia, Thomas and Alito envision an America where elections are decided by the highest bidder, where corporations control the courts, and where ordinary Americans have to beg corporate permission before they can hold the wealthiest companies accountable to the law. And if Mitt Romney gets his way, there will be even more of them on the Supreme Court.