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


  1. OS::
    Out the door to work ,,but I,m just loving the whole response to this decision.

  2. OS/MIke S:

    anon’s kind of endearing in a strange sort of way. His disdain for anything legal –from practitioners to principles — is now legendary; his absolute disgust for guest bloggers equally manifest; and his nasty comments are worn like a badge; but he remains our constant companion. Sort of like the dog who habitually barks at you but follows you home day after day.

    Maybe he just needs a little pat on the head and a doggie biscuit thrown into the next yard. The one with the pit bull behind the fence.

  3. Mike, we really must shop around for some better quality trolls. The ones we have been getting lately are so transparent. ALEC should demand their money back for such shoddy merchandise.

    1. OS,

      The troll quality of late has been poor, but maybe ALEC is satisfied because the troll arguments are of the type that would appeal to those avid for FoxNews.


      I get what you’re saying. While at times we all have bones to pick with Anon, he is a regular who has been here a long while, so he is one of our own. This is true of Bron also. One of the things that pisses me off at times is the blanket assertion that we follow the same line, but that isn’t even close to being true.

  4. Mark,

    In light of your comment, you may wish to read

    Supreme Court Year in Review
    Entry 17: The Commerce Clause was clearly enough to uphold the Affordable Care Act.

    From: Richard A. Posner|Posted Thursday, June 28, 2012, at 5:38 PM ET

    An interesting article for Richard Posner which ascribes a lot more institutional politics to the decision than I had previously heard.

    If he is accurate, it’s I guess a blast of fresh air to have it stated so blatantly how political decisions are at the Supreme Court. But it also seems pretty shameful to have a decision made on politics rather than “law”. However, that comports with the theory that the Constitution, Judges, and Lawyers are all corrupt and full of shit, and mostly do whatever the hell they want to do, mainly enrich their greedy bodies and fill up on carbs and peasants.

  5. Actually, I think Roberts was quite Marshall-esque. He gave the conservatives a relatively meaty bone by concluding the commerce clause would not support the individual mandate and then paid homage to liberals in ruling Congress had the power to promulgate the law under its taxing authority. So everybody got something. This is the work of a master politician/jurist like Marshall who did the same thing in Marbury v. Madison

    The result was pre-ordained if you accepted Roberts at his word that he is an institutionalist and not an ideologue. He understands — keenly — the rules of successful application of power:

    1. Power begets other power.
    2. Power is always pragmatic.
    3. Power avoids exhaustive hypotheses.
    4. Power protects other power.

  6. “Reducing profit margins from 20% down to 5% is a worthy goal and an obtainable goal at this point. ”
    The 80/20 has to do with payouts for medical care vs administrative costs. Profit margins are not regulated. It looks to me like the profit margin is to come out of the 20%.

    Swarthmore mom, I agree that Obama didn’t do a good job in explaining the good stuff in ACA. I heard this afternoon, for the first time, a list of a whole bunch of stuff that I agree with. I got a few of them piecemeal over the past several months but not all of them and not all at the same time.

    Have you noticed how the right wingers, in particular the Tea Party folks, have become energized over this? I think that might be an explanation for Roberts’ vote on this. This is at least the second time that Roberts has redefined the case to suit his agenda. The first time was Citizens United when the case before the Supremes would not have led to the decision that was handed down. Roberts sent them away to come back with the broader case. This time he modified the arguments from “penalty” to “tax” to be able to give the decision that he wanted.
    While I don’t like the idea of providing the insurance industry with a huge captive set of customers, I dislike the Republicans response even less, a lot less. They offer nothing! If they want to repeal ACA and replace it with Single Payer, I’ll sign on. In the meantime, I’ll wait and see how the ACA plays out.

  7. The corporations get what the corporations want. There was never any doubt the mandate would pass, just a lot of theater.

    I agree with all of Gene H’s points, but there is one he only briefly touches on that deserves attention, namely, the precedent this sets for the future privatization of Social Security and Medicare. It won’t happen overnight, but this was a major victory as a first step in that direction.

    Another point that has not gotten sufficient attention, but that should clue people in is that a strong public option could have been put in place but was not. Obama gave it away in secret negotiations with the insurance giants. That is very telling for the future of the ACA and for whether it will become a program primarily for profit or one that takes on strength for health care.

    Some are arguing, correctly I think, that single payer would never have passed in congress, but they might be overlooking how significant and important a compromise a strong public option would have been.The fact that it was taken out so easily bodes ill for the theory that the ACA is simply a flawed bill that gets us moving in the right direction. I think ACA gets things moving in the right direction if you happen to own a health insurance company and were terrified that your junk insurance was being purchased by no one..

    The other points that professor Turley brings up also have me concerned, 1)the Court has affirmed that Congress can easily circumvent federalism concerns. and 2) [the] decision on the expansion of medicaid though I don’t really understand the former and don’t fully appreciate the significance of the latter.

    P.S. I’m not up for any fights either. I hope I’m wrong.

  8. We’re celebrating too soon. There’s trouble in the long run as Roberts plays the long game. The loss of the Commerce Clause has the potential to really hurt.

  9. “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.” (Gene)

    Well, in a little less than 30 minutes I have received 22 emails requesting contributions and all based on the Supreme Court decision on healthcare … so, yeah, it’s started.

  10. SwM,

    Please email me with a report as to how she is doing and if she likes the work experience.

  11. Blouise, I know but it is a cheap trip and get to see daughter.

  12. SwM,

    Going south to West Virginia. I love that state for its beautiful countryside.

    D.C. is horrible in the summer … visit the monuments at night!

  13. Bloiuse, You going to PA this year? The week after we get back from CO we are then going to DC to visit daughter and husband also has business there.

  14. SwM,

    Tex and I are traveling as well this next week. Enjoy the mountains.

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