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. I heard a comment today, not sure by who (or whom for that matter): we are now subject to a tax for not doing something (buying insurance). Has this ever happened before?

    Mr. Appleton
    How can it be that the CJ sided with the dissenters? By definition he sided with the majority.

    As to those who said the dissent’s tone may have driven him away: that’s hard to accept because he could have assigned himself the task of writing the decision regardless of which 4 he joined.

  2. Roberts gave them two tools: “Obamacare” and tax hike. Both of which are energizing the right.

    Those who support ACA will probably stand down now while those who don’t like it are energized and will sustain that energy thru November.

    And, yes, Roberts is smart enough to know it. In the meantime, the insurance industry has lots of new customers.

  3. After the ruling: Lots left to do on health care reform

    By Maggie Fox

    The Supreme Court upheld President Barack Obama’s health reform law on Thursday, with conservative Chief Justice John Roberts making up the surprise swing vote and writing out a road map for making the law work.

    It is of course a big victory for the Obama administration. But it’s not the end of the story, not by a long shot. Even if everything goes smoothly, many important provisions don’t go into effect until 2014 and later. And Republicans, from presidential hopeful Mitt Romney through to members of Congress and governors of close to half the states, renewed their promised on Thursday to fight tooth and nail to either repeal the law or at least chip away at it.“[emphasis added]

    With the brand new tool Roberts gave them.

  4. Blouise,

    It’s in very fine print at the bottom of the talking points memo. In Aramaic. Written backwards. Easy enough to miss. 😉

  5. “Oh noes! Some anonymous Internet nimrod doesn’t like me! Oh woe is me! Whatevah shall I do? With Dog as my witness, I’ll never eat curtains again!”

    – Scarlett O’Hara, Gone FIshin’: Gone With the Wind II by Margret Mitchell (unpublished)

  6. “That’s what the memo said anyway.” (Gene)

    Yet another memo no one thought to send me. I even know a great tattoo artist.

  7. “The loss of the Commerce Clause has the potential to really hurt.” (Curious)

    That is part of what has me concerned and where I see his extremest tendencies and, to quote someone from earlier “explicitly adopts the theory that the word “proper” in the Necessary and Proper clause creates independent, judicially-enforceable limits on the Congress when it relies on the sweepings clause. ”

    He gave enough to liberals to forestall any serious complaint but also gave the right a big one disguised with this fig leaf.

  8. Firefly, way above, said:

    “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.”

    Not necessarily. Here in the Land of Romneycare, many of the insurers are nonprofits or not-for-profits (that is, .org type outfits) No shareholders, low administrative expenses. I don’t see why there can’t be nonprofit insurers in every state.

  9. Anon,

    You are not the only one wanting the waif dismissed from the dismissal job he performs. His writing is even worse than his personal attacks.

    If, he wasn’t such a jackass or is he really a ninny, when he disagreed with you, maybe he wouldn’t come off as offensive. He has to be a paid partisan hack spouting for his masters. Then again would you pay him for his words of wit? I’ve read better wisdom in truck stop bathrooms.

  10. It is getting late and I think it is time to call it a day. Since this discussion seems to have taken a wrong turn down the evolutionary scale of legal discourse, I thought I would leave you with a short video by a friend of mine.

    Gene, since you enjoyed the last comment by my friend Cap’n Zeph, here is his observation on lawyers.

  11. “his absolute disgust for guest bloggers equally manifest;”

    On the contrary, it’s you I take lightly. (reference: Tribbles)

  12. “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.”

    Yeah. What Mike said. Now if you’ll pardon me, I need to go get a tattoo to express my individuality like everyone else. That’s what the memo said anyway.

  13. mespo727272 1, June 28, 2012 at 8:29 pm

    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.
    I think his homage to liberals was another bone to the conservatives who hate new taxes about the same as they hate Obama. Another shot of energy for Rs.

  14. Mespo,

    When is a tax not a tax……

    I caught this on another site…..

    There are two parts to answering your question, IMHO:
    1.   Congress is a body of enumerated powers.  Depending on how you count, the constitution gives it power in 18 areas.  But just because its action is not authorized under one of its powers, doesn’t mean it’s not authorized under another.  And the scope of these powers differ significantly.  Under the “commerce clause,” Congress only has the power to regulate interstate commerce.  But under the tax and spend clause, it has the authority to do anything that would   “provide for the common Defence and general Welfare” — a much broader grant of authority.
    2.  As a matter of comity to a co-equal branch, the Courts try to find a law constitutional, if possible.  So even though the profferred authority for the individual mandate was the commerce clause, it is not a stretch to justify it under the tax clause.  Afterall, the individual mandate was actually added as an amendment to the IRC — adding IRC 5000A to Subtitle D, which is entitled “Miscellaneous Excise Taxes.”  Although it uses the term “penalty” rather than “tax,” calling it a tax is not a big stretch, IMHO.  Do you really want to elevate form over substance?
    3.  There are some limits on Congress’ ability to levy taxes.  It cannot levy certain “direct taxes.”  See Art I, Sec 9 and Amd 16.  I do not fully understand what this means.  But other than this, it seems that Congress can levy taxes on whatever it chooses to.
    As Chief Justice Roberts said, “We do not consider whether the Act embodies sound policies.  That judgment is entrusted to the Nation’s elected leaders.  We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”

    I thought that this made sense…..

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