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
” . . . it wouldn’t surprise me if the extremism of the four dissenters effectively forced him to break ranks — had Kennedy been willing to strike down the mandate while leaving the rest of the law intact, this may well have been a 5-4 ruling the other way.”
I agree with that.
I also think it is possible that when the Justices first started circulating opinions, Scalia, Alito and Thomas were using some pretty offensive reasoning and/or language that Roberts did not wish to be associated with.
With Roberts joining the liberals on the Court, those three might have felt the need to tone it down a bit.
rafflaw:
As I have already written, I would have preferred to have Medicare-for-all, single payer OR at least a public option.
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Dredd:
As for the comment that insurance companies “are regulated,” yes, they are — in the same way Wall St. has been “regulated” lately, which means not much at all.
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P.S. Not trying to pick a fight with anyone here, just trying to express my thoughts on the law and today’s ruling.
How far the four dissenters were willing to go
By Steve Benen
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Thu Jun 28, 2012 11:41 AM EDT
In a 5-4 ruling, the U.S. Supreme Court upheld the constitutionality of the Affordable Care Act. But as the political, legal, and policy world scrutinizes the details of today’s ruling, it’s worth pausing to appreciate just how far the four dissenters — who filed their dissent jointly — were willing to go.
The conventional wisdom, which was neither conventional nor wise, was that the individual mandate was in deep trouble, but it was unrealistic to think the justices would be so radical as to kill every letter of every word of every page of the law. Such a breathtaking move would simply be unnecessarily radical.
And yet, as of this morning, four justices — Alito, Kennedy, Scalia, and Thomas — insisted on doing exactly that. The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law — the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.
To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress’ taxation power. I can’t read Chief Justice John Roberts’ mind, but it wouldn’t surprise me if the extremism of the four dissenters effectively forced him to break ranks — had Kennedy been willing to strike down the mandate while leaving the rest of the law intact, this may well have been a 5-4 ruling the other way.
Roberts’ motivations notwithstanding, it’s important that Americans understand that there are now four justices on the Supreme Court who effectively want to overturn the 20th century. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.
There are some who argue that this year’s presidential election isn’t especially important. I hope those who believe this consider what today’s court minority was prepared to do, and what they will do with just one more vote. Maddow Blog
eniobob,
What kind of wine do you serve with a USAG? Or will John be having his usual: Compari and spray tan solution on the rocks?
raff,
Did Roberts really side with anyone other than business?
A tax? Really? And consider the following ways that can also be used to characterize this case . . .
Corporate Welfare for the Health Care Insurance Companies Wins!
Federalism and the Commerce Clause Loses!
It almost makes me wish I was bear or wonder what the weather on Mars is like this time of year.
This is the illusion of victory for We the People.
Wow. This was a shocker. I, like so many, thought that *at least* the mandate would be found unconstitutional.
This is another nail in the coffin of federalism. Wickward, Raiche, and now this.
Power corrupts absolutely. The S.Ct. reserves the right to retain the supremacy clause in issues where the feds would have jurisdiction.
Now we know that if the feds have jurisdiction over a cockroach in Oklahoma, they make an argument they have jurisdiction over everything else, because anything affects that cockroach, somehow, someway, or potentially in the future.
Essentially the S.Ct. has conflated any activity with federal jurisdiction.
Don’t be surprised when the federal govt simply does away with the pretense, and subsumes all state govt laws, and any protection from an overarching central government.
rafflaw 1, June 28, 2012 at 12:59 pm
Dredd,
it was Robert’s explanation why he voted the way he did. It was important dicta to him politically.
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Makes sense to me.
I just wrote a check to Romney for America. That’s my response! I hope many do the same.
firefly 1, June 28, 2012 at 12:53 pm
The argument is NOT over requiring everyone to buy (or have) health insurance.
The argument is over requiring Americans to buy health insurance from a PRIVATE, for-PROFIT company, whose sole legal obligation is to make a profit for its shareholders.
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They also have a legal obligation to perform their business in a legal manner, and are regulated by states and the federal government in that light.
Further, they have competitors who will benefit from doing a good job, doing business right, and thus normal consumer protection ideology and law is a factor here too.
Dredd,
it was Robert’s explanation why he voted the way he did. It was important dicta to him politically.
firefly,
then I would assume under your logic that you are a big fan of a single payer government health care plan, right?
Why isn’t the language concerning the commerce clause dicta?
That language was not necessary to the decision, once the issue was developed that the mandate was constitutionally valid because those not choosing health insurance would be taxed by IRS.
The argument is NOT over requiring everyone to buy (or have) health insurance.
The argument is over requiring Americans to buy health insurance from a PRIVATE, for-PROFIT company, whose sole legal obligation is to make a profit for its shareholders.
http://www.bloomberg.com/news/2012-06-28/roberts-chooses-restraint-over-history-on-obamacare.html
Swarthmore,
great article from Chait!
John Roberts Saves Us All
“Two fears have hovered over American liberals since the legal case against the Affordable Care Act began wending its way through the legal system. The first was a fear that conservatives would succeed in revising what Jeffrey Rosen called (in a prescient and classic 2005 New York Times Magazine story) “The Constitution In Exile” — that it would interpret the Constitution to require right-wing economic policy. A second, and darker, fear was that five Republican-appointed justices would concoct a jury-rigged ruling in order to win a huge battle that its party had lost in Congress — that wildly partisan Bush v. Gore–style rulings would now become regular features of the political scene.
The two fears were, of course, deeply intertwined. What happened, and what nobody expected, was that they diverged. The second fear was decisively refuted. The first is very much alive.
The fearful part is that five justices ruled that the Affordable Care Act cannot be upheld under the Commerce Clause. This is a bizarre and implausibly narrow reading — if Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce. By endorsing this precedent, Roberts opens the door for future courts to revive the Constitution in Exile.
But Roberts will do it by a process of slow constriction, carefully building case upon case to produce a result that over time will, if he prevails, rewrite the shape of American law. What he is not willing to do is to impose his vision in one sudden and transparently partisan attack. Roberts is playing a long game.
But it would be unfair to attribute his hesitance solely to strategy. Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled. The long-term war over the shape of the state goes on, but the crisis of legitimacy has been averted. I have rarely felt so relieved.” Jonathan Chait, New York Magazine
Can anyone please point me to a link where I can see just how much health insurance will be considered adequate under the Obamacare legislation?
Thanks.
@raff – Umpire…Vampire…, what’s the diff?
Loved one day, hated the next…
“citizens who do not purchase insurance will be penalized.”
I think the Professor must mean they will be “taxed.”
From the dissent: a “whatever it takes to solve a national problem power” — I couldn’t help but recall the line from Mr. Mom : 220, 221, whatever it takes.
I’m looking forward to reading the opinion, but I agree with rafflaw that this is a major victory for the President, despite all of the assertions that it will energize the Romney campaign. (But I still think the Court could have relied entirely on the Commerce Clause.)