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
There already are huge disparities between all Americans in health care, insurance etc. The rich get everything.
Gene says “But it doesn’t have to profit an industry notorious for not paying claims in the name of their profit margins. My objection has nothing to do with a desire to see people without health care. My objection has to do with government subsidies of corporations and specifically corporations with a track record of less than exemplary behavior when money and their pockets are involved.”
this is the first real regulation of health insurance that I can remember in 40 years of buying individual insurance. We have been completely at the mercy of the private market corporations who have squashed every law to regulate and have bought favorable laws for decades. (I mean really, who decided that giving insurance corporations the right to breach your contract?) People have had no rights in this market for decades now.
Do you have individual insurance? Because if you did you would feel completely differently. I know the ACA is not perfect but damn, it feels like some protection now when you have exchanges that are REGULATED to provide MINIMUM coverage. Not just what they can get away with by inserting incomprehensible legaleaze into your yearly contract.
And you can now choose a NON PROFIT like we used to be able to do. I liked my health insurance when I was with a non profit, but that did not last very long- and the change was gradual, they gradually started reducing benefits and increasing premiums until the whole policy was an expensive almost worthless piece of paper.
“
Mr. Turley- I’m a new fan of your site, though I’m not a lawyer. Did healthcare originate in the Senate? If so, wouldn’t there be a constitutional issue? Article 1, Section 7 of the U.S. Constitution: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”
Consider this point as well . . . Court ruling could widen health coverage disparities among states.
shano,
“Have to disagree Gene H.”
Okay.
“because every person has to have health care.”
But it doesn’t have to profit an industry notorious for not paying claims in the name of their profit margins. My objection has nothing to do with a desire to see people without health care. My objection has to do with government subsidies of corporations and specifically corporations with a track record of less than exemplary behavior when money and their pockets are involved.
“people cannot be turned away at the emergency room.”
They can’t be turned away the the ER now. It’s a set of laws called EMTALA – the Emergency Medical Treatment and Active Labor Act – and it has been the law since Congress passed it in 1986.
“We have a ‘tax’ to create an interstate highway system. Yes, it benefits all of us to be able to drive ourselves and our goods across the whole nation.”
And the interstate highway system is owned by the common, not Unitedhealth Group, Wellpoint or Kaiser who are beholding to shareholder expectations of profit over any concern for your personal welfare.
The issue with the mandate, to use contractual language, revolves around unjust enrichment.
I always said I’d have no problem with the Health Care law if it was funded by the general tax rolls. But if you forget about the outcome for a second and focus on the procedure, how does a party (i.e. the government) win on an argument that it never made?
From the dissent:
Commerce Clause authority, and §5000A is therefore invalid. The Government contends, however, as expressed in the caption to Part II of its brief, that “THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER.” Petitioners’ Minimum Coverage Brief 52. The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was im- posed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both.5 The two are mutually exclusive. Thus, what the Government’s caption should have read was “ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX.” It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.
In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not.
Quite separately, the fact that Congress (in its ownwords) “imposed . . . a penalty,” 26 U. S. C. §5000A(b)(1),for failure to buy insurance is alone sufficient to renderthat failure unlawful.
Against the mountain of evidence that the minimum coverage requirement is what the statute calls it—a requirement—and that the penalty for its violation is what the statute calls it—a penalty—the Government brings forward the flimsiest of indications to the contrary. It notes that “[t]he minimum coverage provision amends theInternal Revenue Code to provide that a non-exempted individual . . . will owe a monetary penalty, in addition to the income tax itself,” and that “[t]he [Internal RevenueService (IRS)] will assess and collect the penalty in the same manner as assessable penalties under the Internal Revenue Code.” The manner of collection could perhaps suggest a tax if IRS penalty-collection were unheard-of or rare. It is not.
The last of the feeble arguments in favor of petitioners that we will address is the contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no scienter requirement. The presence of such a requirement suggests a penalty—though one can imagine a tax imposed only on willful action; but the absence of such a requirement does not suggest a tax. Penalties for absolute-liability offenses are commonplace. And where a statute is silent as to scienter, we traditionally presume a mens rea requirement if the statute imposes a “severe penalty.” Staples v. United States, 511 U. S. 600, 618 (1994). Since we have an entire jurisprudence addressing when it is that a scienter requirement should be inferred from a penalty, it is quite illogical to suggest that a penalty is not a penalty for want of an express scienter requirement.
And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable,” Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax.
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Actof 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives.
http://www.huffingtonpost.com/2012/06/28/health-care-dissent_n_1634514.html
Gene H:
Not sure but I know,lot of folks are popping Zantac 150 like they are after dinner mints. LOL!!
Have to disagree Gene H. because every person has to have health care. people cannot be turned away at the emergency room. I suppose we could have people dying in the streets & under bridges instead.
Even in the Dark Ages they understood the value of removing the corpses of the dead. All this costs time and money. someone has to treat those patients in the emergency room, someone has to pick up those bodies. It is a common good for all of society.
We have a ‘tax’ to create an interstate highway system. Yes, it benefits all of us to be able to drive ourselves and our goods across the whole nation. This tax to deal with all human bodies whether living or dead seems to benefit everyone, too.
Have you considered the danger of a precedent that allows the government to levy a tax to specifically benefit for-profit businesses, shano? This is also a victory for those interested in privatizing (and profiting off of) as many functions of government as possible. You misconstrue my displeasure with upholding the mandate with some displeasure with the other parts of the ACA. By in large I have no issue with the regulations created by the ACA. My issue has been since day one the mandate and only the mandate. The mandate is a different issue altogether Constitutionally and this ruling on it as “a tax” is a very wrong step for society toward more corporatism.
The “marginal benefit” is not so marginal for those who have pre existing conditions or who are now being kicked out of insurance policies because they cost too much (as in fireflys example).
The fact that profit margins are being controlled for the first time (required to pay out 80% of premiums or give a refund) is a great victory. I hope they will whittle these down to the 95% that is common in Europe, because insurance corporations add NO VALUE they are simply pushing papers around.
Reducing profit margins from 20% down to 5% is a worthy goal and an obtainable goal at this point. It never was before, and anyone who is an entrepreneur like me was stuck in the horrible rip off that is the individual insurance market. All the people complaining about this Obamacare have never been paying for individual insurance imho.
If everyone bought into the non profit option in the health insurance exchanges, or if all states decide to set up a state wide single payer we will see huge progress – not simply a give away to corporate interests. Vermont is in the process now of setting up a state wide single payer system. These are the huge benefits of the ACA.
They will have to cover my whole body for the first time since 1980.
raff,
Agreed that we agreed to disagree. 😀 However, “[t]hey will gain in the long run, but at a price” does not negate a net gain for a private for-profit business and those profits will be paid for with tax dollars. It just means it passed the cost/benefit analysis from the business perspective. It’s further down the Corporatism wormhole where policy is dictated by private profits instead of the best interest of all the people. In the wake of Citizens United, I just don’t think that can be a good thing no matter what marginal benefit for the people is derived from the transaction.
rafflaw:
I was referring back to your comment at 12:58 pm
I thought you were challenging me. Sorry if I misread your comment.
firefly,
I am not picking a fight either, but where did you get that quote of mine? I am in favor of single payer, but I did not write that line on this thread.
Gene,
we have discussed the mandate in the past and we agreed to disagree, but I think Roberts also sided with the vast majority of Americans who are benefitting and will benefit from this flawed health care improvement. I don’t see it as corporate welfare because the restrictions put in place on the companies will also cost them money. They will gain in the long run, but at a price. At this point in our history, I don’t think a single payer plan would have passed the House and Senate.
shano:
I think at least parts of Blue Cross and Blue Shield are now considered “non-profit” but were considered all non-profit when the corporation began many decades ago. Still, a friend who has a difficult case of breast cancer was thrown out of Blue Cross/Blue Shield coverage last year (her care was too costly for them) and is now on Medicaid because she cannot work. She had kept up with her Blue Cross/Blue Shield premium payments because her mother was able at the time to help her a bit.
I was not aware of the non profit entity in Obamacare that you refer to — there is probably a lot in that law I am not fully aware of 🙂
For instance, I do not understand how the “exchanges” will work. Could someone here please give me a short explanation? I would appreciate it.
They did not have the guts to overurn that which they enjoy: ScaliaCare, Except Scalia thinks that sociaized health care is good for him on my dime and not for me on my dime. What a dick this Scalia guy is.
Frankly- http://www.law.cornell.edu/uscode/text/18/333
Complain all you want about Kagan not recusing herself.
THOMAS should have recused himself. His wife, and therefore him, makes money from OPPOSING the bill. She’s a PAID lobbyist and consultant.
That’s a very definite conflict of interest……
Justice ‘Monsanto’Thomas using offensive language to bash a law that his wife has been paid millions of dollars to bash? No surprise.
firefly, you know there is a mandated NON PROFIT option that is required for all health insurance exchanges? That will be where my insurance dollars will be placed once the exchanges are set up in 2014
Darren LeDoux – I just set fire to a bunch of money, it serves the same purpose as your check but give me the pleasure of watching the flames.
Mike Appleton: “(But I still think the Court could have relied entirely on the Commerce Clause.)
Not a chance Mike; since it would have done away with the entire concept of specifically enumerated powers.
Other than that I can’t say much more about the opinion since I don’t quite understand the taxing power argument yet.