I am still at NBC but, as many have heard, the Supreme Court delivered a clear victory to the Obama Administration in upholding the individual mandate. However, the response may be a bit too gleeful for both those following the implications for the Court and the White House.
The decision is likely to deepen negative feelings that preexisted the opinion. Obviously, for conservatives and many supporters of federalism, this will be viewed as the Brutus moment with regard to Roberts. However, it will also magnify the controversy surrounding the failure of Justice Kagan to recuse herself. To the extent that a crash landing is still a landing, this is a victory. There is no question that the law survived but there are serious questions of how it will be implemented in light of this decision. If you look more closely, there are serious problems ahead.
First, to the extent that Roberts wanted to unite the Court, he failed. This is another 5-4 decision with a deeply fractured court — reminiscent of Bush v. Gore in the splintering of rationales.
Second, by holding that the individual mandate is not supportable under the commerce clause but as a tax, the Court leaves the White House will only the stick of the law — citizens who do not purchase insurance will be penalized. It is a terrible result for those of us who felt the law was unconstitutional under the commerce clause. While agreeing with that opposition, the Court has affirmed that Congress can easily circumvent federalism concerns. The decision leaves federalism as the constitutional version of the Maginot Line from World War II — an impressive line of defense that can be simply avoided by going around it.
Third, with the decision on the expansion of medicaid, the White House is faced with a health care law that could come with a massive bill for Congress. The drafters wanted young people and the states to bear significant costs. That support is likely to come up short — leaving the government with the unpopular task of appropriating additional funds.
Fourth, by allowing states to opt out (it is really opting in since the state would have to decide to expand its program), the Court has inserted into the law something that Congress rejected. There were calls for opt in provisions that were defeated. The result is that the Court has done what it said it would not in oral argument — produced a materially different law. If a state can opt out, can it take the heavy federal subsidy of 9 to 1 dollars for the first few years and then opt out later?
In the end, this has to be viewed as a victory for the White House, but it is not much of a victory for the credibility of the Court which remains deeply divided. While the opinions are polite, the decision in my view again shows the dangers of a Court that is simply too small.
I previously ran the original and longer version of my column to further explain the proposal to expand the Supreme Court to nineteen members. I also have a second column in the Guardian newspaper that further discusses some of these issues.
Here is the opinion: 11-393c3a2