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
No doubt SCOTUS now carries the moniker of ACTIVIST. They rewrote the law to make it fit. The bill was passed as “no, not a tax, no way”. But it was argued and upheld as a tax … to middle class USA. Now and future Congress can pass anything as a membership fee or similar, bring it to SCOTUS, argue it as a tax, and it’s OK. Be careful what you wish for as you just may get it. The Kraken has been released.
“Single payer would have been better, this is a start.”
Given the power corporations (including insurance companies) now have — thanks to Citizens United — to buy the votes of our legislators, I do not think we will see that change happen in my lifetime.
Laurence Tribe called it. I always wondered where Roberts was going to be … now I know.
I was a bit concerned at the journalism in this case. A few minutes ago I logged on to msnbc.com , cnn.com, abcnews.com , cbsnews.com , latimes.com all showed effectively the same image; that is a group of people holding up signs withch read “Stop the War on Women” and “Moving Forward, Protecting OUR Care.” The people in the crowd all had expressions of glee and rejoice on their faces as if a great victory was to be had. It almost seemed a propaganda of sorts to show the same image in all these agencies, to cast the issue into a favorable light by each news medium. Foxnews.com had a rather unflattering image of the face of President Obama with the words “Obamacare Survives.” All of this to me was rather opinionated.
WSJ.com seemed a bit more neutral and had some wording indicating Upholding the act as a tax and another about finding fault with a medicare expansion, the image showed what appeared to be a man in patriot clothing holding a Gadsen Flag.
Foreign media that I saw seemed more to display images of both sides if they displayed images of the crowd outside. bbc.co,uk displayed US heathcare reform law upheld with images of a press meeting setup in front of the court (cameras and microphones etc). Spiegel.de showed demonstrators of both sides with words that read US Supreme Court upholds Obama’s heathcare reform. lemonde.fr displayed a wide image of the SC building with a few people camped out in front and the caption seemed to read “The American Supreme Court validates the health reforms of Obama.”
From an imagery point of view the US outlets clearly showed one side in joy or another side in a bad light, the WSJ being excepted. The European hosted images were either neutral or displayed advocates of both sides.
This brought to my mind Gene H’s article on this forum with regard to propaganda in images.
AY:
:=)
” But requiring Americans to buy a product (health insurance) from a PRIVATE, for-profit company (as it now does), is just a gift to the insurance companies.” ~firefly
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true, but the subtle underlying shift is to look at healthcare as a necessity not a luxury and therefor something that needs to be made available to everyone, not just the wealthy. And those private companies now have to shift the way they do business also…and be more scrutinized for it.
Single payer would have been better, this is a start.
Ebob,
I am sure they are gonna have chop suey then…..
I think Roberts twisted himself into a pretzel on this one. A fine is a fine, and a tax is a tax; they are NOT the same thing.
Furthermore, despite the Court’s majority opinion, I still say the mandate is unconstitutional (yeah, I know my opinion does NOT matter). If Congress had passed a health insurance law similar to Medicare-for all, or using single-payer, or even one offering the public option, I could have favored this law, as there are many good provisions in the law. But requiring Americans to buy a product (health insurance) from a PRIVATE, for-profit company (as it now does), is just a gift to the insurance companies. I would not actually have been surprised if the rightwingers on the Court had supported the mandate since it is such a gift to their corporate friends.
Did Thomas recuse himself? His wife has received hundreds of thousands of dollars to lobby against health care and still receives funds. The Thomas’ should decide on either him on the court or her as a lobbyist.
“Anonymously Yours
1, June 28, 2012 at 11:30 am
I wonder what the boy of orange is having for breakfast this morning……”
AY:
Not sure about breakfast,but I think he’ll be having Holder unfortunately for lunch.
The question will become as such raff, can congress act against an opinion of the US Sct and not be subject to the penalties of impeachment and tried for treason……
This will not be well received at the Pentagon or the National Defense Magazine, where they have said that health care is their number one enemy.
AY,
Boehner is going to scream that they will repeal the legislation to correct the evil that the Supremes hath wrought. Just like Romney claims he will repeal the legislation the day he takes office. They both do not want to tell the American people that it will be impossible for them to achieve those lofty goals.
Raff,
You think Roberts is going to avoid hunting trips in the near future…… Used to be a way of disposing of relatives….
I wonder what the boy of orange is having for breakfast this morning……
The decision was a huge victory for the Obama administration, notwithstanding the Medicaid issue. It is made more amazing by the fact that Chief Justice Roberts sided with the liberal wing of the Court on the main issues.
Prof. Turley,
I don’t think any decision would have helped “heal” the Court when you have Justices that are playing with politics. The political atmosphere will not allow for justices going against their political backers in most instances. Maybe Roberts really is an umpire afterall!
Dredd,
Thanks for the link….
So my understanding of the decision on the mandate is that the government cannot, in fact, require you to buy insurance, but they can tax you for not doing so. But was the reform act not written expressly as a penalty and not a tax, for some reason or other? If so would that not mitigate against enforcement under the ruling that it’s okay “as a tax?”
Jansing and Co | Aired on June 26, 2012
SCOTUS will uphold Health Care Law
Harvard Law School Professor Laurence Tribe, who taught both President Obama and Chief Justice John Roberts, says he believes the Supreme Court will uphold the health care law. Tribe also discussed the politicization of the court.
http://video.msnbc.msn.com/jansing-and-co/47963303#47963303
Nice victory…… Still color me shocked Roberts sided with the other side….. Will they put a bounty on him now….. Will Cheney ask him to go hunting…..