Notes on the Obamacare ruling

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By Jonathan Bradley in Sydney, Australia

29 June 2012

"You and I are going to spend our sunset years telling our children and our children's children, what it once was like in America when men were free."

Ronald Reagan, 1961, predicting life in the United States after the passage of Medicare

The Patient Protection and Affordable Care Act, it turns out, is (almost entirely) constitutional. So ruled the Supreme Court today by a 5–4 vote, with Chief Justice John Roberts joining Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader-Ginsburg in the majority. The vaunted swing justice, Anthony Kennedy, with Justices Clarence Thomas, Antonin Scalia, and Samuel Alito opposed the ruling.

Some observations:

Most analysts predicted that if Chief Justice Roberts voted with the majority, it would be for a 6–3 ruling. Instead, he was the key vote to uphold, and Justice Kennedy was the one prepared to overturn the entire bill.
Either way, this was going to be a 5–4 decision. Roberts could easily have voted to overturn. That he did not suggests he really does care about maintaining continuity with previous rulings, preserving the Court's credibility in the eyes of the American people and protecting its status as an institution above the disputes of day-to-day partisan politics.
Roberts may today have proved that court is not as extreme as many of its critics fear — see, for instance, this recent post by James Fallows at American Review. But perhaps Anthony Kennedy is. He voted to end the recount in Bush v. Gore, was the driving force in expanding the scope of Citizens United v Federal Election Commission, and was now willing to declare the entirety of the Affordable Care Act unconstitutional. He's less the court's moderate and more its highly volatile extremist.
Roberts's vote to uphold the individual mandate on the basis of the commerce clause but on Congress's power of taxation is novel, and could lead to greater ramifications later on. Is this limit on the commerce clause going to lead to meaningful restrictions on what Congress does in the future, or, is, as Brad Plumer suggests, health care such an exceptional market that the limits Roberts has set in place will apply to few other situations?

I said last night that leaks from the Supreme Court are rare and DC is filled with people who like to look like they have some insider information. I should have added that colleagues of the guy who argued the case against the government might indeed have insider info. When he was here at the Centre last month, Professor Larry Gostin said his Georgetown colleague Paul Clement had advised to watch out for the Medicaid expansion as a sleeper issue. A pointer worth heeding, it turns out.
The ruling on the Medicaid expansion does indeed seem to be the part of the judgement with the biggest ramifications. If the federal government can offer money to encourage the states to implement a program, but can't coerce them by threatening to withhold funding. For instance, does this affect the National Minimum Drinking Age Act, which requires states to set their legal drinking age at 21 or lose highway funding? (The court ruled this constitutional in South Dakota v. Dole.)
Sarah Kliff: "If you read the opinions, [Roberts] sided with the conservative bloc on every major legal question before the court." Obamacare stands, but a lot of constitutional questions that were once considered settled are now back up in the air. In some ways, this ruling is a twin of the Court's decision in District of Columbia v. Heller, which made a major constitutional revision through an exceedingly minimal change. (There, the ruling was only that the District of Columbia couldn't entirely ban all private ownership of handguns — but that overturned a long established precedent that the second amendment did not confer an individual right.)
By, in effect, declaring the individual mandate to be a tax, has Roberts made it easier for a future Republican congress to repeal the law? After all, while a requirement to purchase health insurance may not be a budgetary action, a tax on not having health insurance definitely is. Repealing that tax should fit comfortably within the realm of any filibuster-proof reconciliation bill that Republicans bring before the Senate if they win a majority in that chamber this November.
Republicans have picked up quickly on the "tax" aspect of the ruling. RedState has already started to refer to the mandate as Obamatax. New Jersey govenor Chris Christie tweeted, "Most importantly, the Supreme Court is confirming what we knew all along about this law – it is a tax on middle class Americans." Criticising Democrats over taxes is comfortable territory for Republicans, but I'm not persuaded that calling an unpopular mandate a tax offers the GOP any political advantage it didn't already have.
Sarah Palin has spearheaded a popular meme that the "tax" finding means Obama "lied." Jennifer Rubin has the same message, but pretties up the language a bit: "while the Obama administration swore up and down that Obamacare did not tax every American, the Supreme Court, in effect, held that the Democrats did exactly that. In that regard, the opinion is a tribute to President Obama’s utter disingenuousness."
Oh, Erick Erickson. This is cute:
In the meantime, following Obama’s lead on illegal aliens, I think Mitt Romney should declare that if he is President he’ll seek “prosecutorial discretion” to not go after people who don’t pay their individual mandate tax.
Settle down! As it was passed, the bill has no provision to "go after" people who don't pay the penalty. For all the talk of the individual mandate being such a draconian provision, it has no enforcement mechanism, and no one is going to be sent to prison by the IRS if they don't pay it.
To any Americans who want to prep themselves for the inevitable government mandate that all citizens eat broccoli, may I suggest Seattle's Black Bottle tavern? Best broccoli I've ever had.