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
http://www.bloomberg.com/news/2012-06-28/health-care-for-poor-challenges-republican-states-after-ruling.html Texas has not decided what to do yet.
“A tax? Really? And consider the following ways that can also be used to characterize this case . .”
Gene you presented the opening, Blouise you laid it out and then Geeba Geeba provided the new talking point: “Obama raised your taxes with his bad health care mandate”. I think that Justice Roberts was well advised to promote it like this. He has it both ways now. He’s done his duty by turning Obamare into an anti-tax talking point and he’s also seemingly staked out the position of “reasonable” conservative judge. Sometimes getting what you ask for turns out to be not exactly what you wanted. .
raff,
I don’t disagree but I don’t think this is a matter of conveying the benefits of the ACA. Obama did a fine job in that respect. I think it’s a matter of not conveying the potential negative consequences that are now I think almost certain negative consequences of the ACA based on this ruling in the context of other laws, events and political agendas working against the best interests of Americans in ways that are not always transparent or readily apparent. The short game and the long game are tactics playable by all sides. This is a short game victory for Obama and in some ways the American people, but the manner in which it was addressed by SCOTUS I think plays into the long game of the Corporatists. In the end, the proof will be in the eating of the pudding.
Blouise, I know .You are not the “let em die” type…. quite the opposite as a matter of fact. I need to get ready for the trip to the mountains for a week. It is hot in Boulder but 72 degrees in Breckenridge.
Gene,
the voters will never get the real truth about the ACA from the media. They are more interested in pitting left against right and in the case of Fox, they are only concerned with putting corporations first. I think Obama did his best job yet stating the benefits of the ACA in a simple and easy to understand format.
rafflaw: I don’t know but that’s a very good question.
Mike A.,
I agree that the ACA has a chance to develop into a single payer. Isn’t that how Canada got their single payer plan?
Mike A.,
I do so hope you are right, but I think the inertia constraining corporatism is so steadily being eroded by actions like this that adding any force to overcome it increases the probability of corporatism becoming an irresistible force.
I’d love nothing better than to be completely wrong in my skepticism.
Gene H.: I think that most people share your concerns about creeping corporatism, and I was extremely disappointed in the final shape of ACA. However, once people begin to really experience its benefits, I believe they will come to reject much of the conservative criticism of the act. I also believe that the system will gradually morph into single payer. It’s a long game.
Mike A.,
Good point. This play works out in multiple ways to Roberts’ political agenda, both personal and public.
Sorry, wrong link given above.
Try:
http://www.whitehouse.gov/blog/2012/06/28/supreme-court-upholds-president-obamas-health-care-reform?utm_source=email168&utm_medium=graphic&utm_campaign=healthcare#health-care-checklist
With reservation agsinst earlier posting.
Here’s the WH take on what Americans need to know.
Short list:
http://jonathanturley.org/2012/06/28/supreme-court-upholds-individual-mandate-in-health-care/#comment-388962
Bob, Esq.: I believe that the judicial expansion of the Commerce Clause has been generally compelled by the economic expansion of commerce. In other words, I regard it as historic inevitability. Justice Roberts’ rationale for approving the individual mandate under the Taxing and Spending Clause is stilted and artificial, however. I don’t want to say much more until I’ve actually had a chance to read the opinion, but my gut tells me that Justice Roberts realizes that he has quite a few years to go on the bench and does not want his legacy smeared by too close an association with the partisan hacks that Justice Scalia and Justice Alito have become. Siding with the dissenters in this instance might have pushed the Court into a ditch requiring years to climb out of.
raff,
All I’m saying is a win is not always a win and that this is one of those occasions. You know my objections to the ACA have always been very narrowly tailored. Just so are my problems with the way SCOTUS handled the matter and I just don’t think the short term good gained is going to remotely offset the long term malaise this precedent invites. Catering to corporatism no matter the reason will still end badly. SCOTUS addressed some symptoms but exacerbated the underlying condition. “You can’t convince me that the House and Senate would have agreed to a single payer plan.” Nor am I trying to, however, more voter frustration would have changed the playing field. The vote of yesterday need not be the vote of tomorrow but both are conditioned on initial parameters. Change the parameters, change the vote.
I am hoping this is a slow death by smothering of the whole freakin’ health insurance industry. They will have to be honest now or get kicked out of the exchanges. their profit margins can be regulated. States can set up single payers systems.
A slow painful death, yes, this is what I wish for the Health Insurance Corporations. After all, they have been doing this to us for decades now. Bankrupting us and killing us with denials….
Gene,
I agree that the private corporations will gain income overall, but the 30 million people that don’t have coverage now, will have it and the companies will not be able to turn anybody away for pre-existing conditions and will not be able to cancel them for reaching any medical cost limits. Pretty big win for the middle class and poor, even if the corporations get a piece of the pie. You can’t convince me that the House and Senate would have agreed to a single payer plan. The Citizens United money would have been even greater since the insurance companies might have gone out of business.
Swarthmore,
I agree with Prof. Tribe, but I am sure Justice Roberts will find a way to smite the left yet.
SwM,
There are many good things about this law. Don’t confuse my doubts about Roberts opinion with disappointment over certain needs this law meets.
OS,
The Slate link was helpful.
Note what I read as Roberts “spending power can carry limits enforced by the judiciary” to this quote from the slate article “This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society.”
Roberts is a non-violent extremist
I have just arrived, and waded through to 1 PM.
I wonder:
Have we not gotten a single-payer system for those who have NOT bought health insurance?
And is it not so that it is a de facto tax, ie government money, which will be paid to the insurance companies?
Then why does that not give the government, like all contract signers, the privilege to negotiate the terms of the contract? To achieve such things we’d all like to see.
And also to exert a pressure to call this a group insurance and at a negotiable price—better than most employees can achieve.
One bad point of the present system is that it creates a situation between the individual covered and the insurance company. two unequal parties.
Can not the new situation result in two improvements: One–the government acts as an agent for the individual’s interests. Two–the forced creation of an emplyer association solely for the purpose of representing themselves as parties WRT an insurance company couunterpart, and also with a legal responsibility to represent these individuals’ collective interests.
Then I think we would have a better system.
The governments power to declare terms, such as in saying that contraception or other women’s care would be borne by the insurance companies are NOT included here as I have no idea how that works.
It is now up to the voter’s. They can vote republican and get it repealed.