Congress, Constitutional Law, Politics, Society, Supreme Court

SUPREME COURT UPHOLDS INDIVIDUAL MANDATE IN HEALTH CARE
The U.S. Supreme Court

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

170 thoughts on “SUPREME COURT UPHOLDS INDIVIDUAL MANDATE IN HEALTH CARE”

  1. Prof. Can’t call out Kagan but not Thomas if you want folks to recuse.
    Jutice Roberts, as far as I am concerned, finally ruled law, not party.

  2. Itsatax, Really? What is the difference between Romneycare and Obamacare?

  4. I left Canada because of the crap healthcare socialized obamacare
    Next country please

  7. Anonymously Yours 1, June 28, 2012 at 11:30 am

    I wonder what the boy of orange is having for breakfast this morning……
    =================================
    Chock Full O’ Nuts …

    And glow in the dark agent orange juice, with spray attachment.

    Gotta work 24/7 now to repeal that ObummerCare.

  8. idealist707 1, June 28, 2012 at 6:12 pm

    GeneH,

    You are right in that this is a game of power. Not one of wishes. It is power that will win. The R’s have blocked Congress for Obama.

    Personally sure that this was a long game move, but like all chess games, not all moves follow as planned.
    ===========================
    Especially the long moves.

  9. Anonymously Yours 1, June 28, 2012 at 3:34 pm

    Geeze Darren,

    What a beautiful talking point you have….. Too bad that was argued before the Sct…… It’s, what you call a moot point now…..
    ===========================================
    Yep.

    Lotsa folk feeling mooty about now.

    It is sinking in.

    The whole usaverse was hunkering down for the Obama spanking, so much so that CNN and FOX reported that the Supreme Five had struck it down (a la Dewey wins!).

    Hell Fire and the Coming!

    Turn off the tele Martha, and let’s get down to Big Dog’s Saloon and do some doubles.

    Then, how did these mooties feel when some librul on the stool next to them was also celebratin’ but with the wrong facts again?

  11. Off Topic:
    But watching the reaction of some congress people Gene Schmidt of Ohio in particular,when CNN and FAUX News got the outcome all wrong and Ms Schmidts celebration,then finding out that those two networks were wrong,PRICELESS!!!

  13. Acting, lying, are you sure ol’ Raygun could tell the difference, shano? 😉

  14. GeneH,

    You are right in that this is a game of power. Not one of wishes. It is power that will win. The R’s have blocked Congress for Obama.

    Personally sure that this was a long game move, but like all chess games, not all moves follow as planned.

  15. I’m pretty pleased with the passage and how it was passed based on the few hours of reading what others say concerning its passage.

    I could certainly use many benefits of ACA as well as many of my friends.

    It raises taxes by just a little, and that’s only if you don’t purchase health care insurance, a product most people want.

    And os vven if the anti-tax angle is big for the pundits and activists, I don’t think the anti-tax angle for this tax is going to have legs for *actual voters*. Well, um, *actual informed voters*.

    After the ruling the health insurance companies seem to have tanked, then recovered. Over the last year the major insurance companies have done much worse than the S&P 500, but UNH has exceeded it tremendously.

    If this were to kill insurance companies because the tax goes to the Feds not the insurance companies who will be faced with more customers and risky ones at that, I would be happy. I doubt with rent seeking lobbyists that will happen. I suspect it will mostly be an insurance company giveaway and I’m not so happy about that.

    I am glad to see the commerce clause narrowed. I would like to see more analysis if it really was narrowed or if any of that meant anything in actual real life courtrooms. I like the New Deal tremendously of course, but to my layman’s ears, Wickard was terrible decision.

  16. CARTER: Governor Reagan, as a matter of fact, began his political career campaigning around this nation against Medicare. Now, we have an opportunity to move toward national health insurance, with an emphasis on the prevention of disease, an emphasis on out-patient care, not in-patient care; an emphasis on hospital cost containment to hold down the cost of hospital care far those who are ill, an emphasis on catastrophic health insurance, so that if a family is threatened with being wiped out economically because of a very high medical bill, then the insurance would help pay for it. These are the kinds of elements of a national health insurance, important to the American people. Governor Reagan, again, typically is against such a proposal.

    MODERATOR: Governor?

    REAGAN: There you go again. When I opposed Medicare, there was another piece of legislation meeting the same problem before the Congress. I happened to favor the other piece of legislation and thought that it would be better for the senior citizens and provide better care than the one that was finally passed. I was not opposing the principle of providing care for them. I was opposing one piece of legislation versus another.”

    Reagan was lying his ass off back then and Romney continues on in that tradition. If you want to know what the Republican health care plan is, as Alan Grayson said, “Dont get sick, but if you do get sick, die quickly

  17. We’ll see, raff. I think you’re going to be surprised at how quickly riders aimed at “enhancing” the ACA start popping up on totally unrelated bills. The love of money is not only the root of all evil, but the mother of corruption as well and the most loved form of money is the profit.

  18. “A National Review Online editorial, under the title “Roberts’s Folly,” said the chief justice and his colleagues had “done violence” to the Constitution. Hackers briefly changed Roberts’ title on Wikipedia to “Chief Traitor of the United States” and labeled him a “coward.” T-shirts declaring “Impeach John Roberts” were soon on sale.” Washington Post

  19. Gene,
    I do not see this as a victory for corporations, as I said earlier. This is a victory for sanity in health care. Once the different benefits of the ACA come into play, the corporations will not be the big winners.

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