The majority, concurring and dissenting
opinions released Thursday are 193 pages long. I've only made it through the majority. Here are the main highlights and my commentary thus far, starting with my
summary:
If Roberts had to uphold Obamacare as constitutional (outlets are now reporting that he initially voted with the conservatives to overturn it, but that he later switched his vote which may have been influenced by outside forces), I think he did so in the most conservative way possible. He kept the Commerce Clause jurisprudence in check by rejecting the Government's expansive arguments, redefined Obamacare in politically-advantageous terms, and granted the States the ability to opt out. Moreover, his repeated emphasis on "federalism" - the states' retained ability to do things (the mandate, for example) under the police power which the feds cannot - lends further credibility to Romney's distinction and justification of the Romneycare mandate. Roberts also quelled attacks on the legitimacy of the Supreme Court by teaming up with the liberal justices and deprived the left of a campaign theme which they were already developing and banking on - that SCOTUS is nothing more than a dangerous majority of conservative politicians in black robes. Finally, this opinion may have breathed new life into the Tea Party, which was instrumental in producing a Republican majority in the House in 2010 and was spawned, in large part, by Obamacare's passage in the first place. In sum, Obama and his allies may have won the
battle on Thursday, but the prospects for a conservative victory in the
war were not dashed by the SCOTUS ruling, in my opinion. In fact, the prospects arguably improved.
Read on for specific opinion highlights and my reactions ...
1. Judicial Deference
"Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."
- It's pretty clear what Roberts is saying here. If you dislike Obamacare, then vote accordingly in November. I also thought his word choice was interesting. It was strongly-worded: "
thrown out of office," not just voted out. Also, implied in the last sentence is that the policies enacted by the people's elected leaders in 2008 (Obamacare) were such that the people needed to be
protected from the consequences of those policies,
i.e., the consequences will be negative and damaging to them. Though Roberts ultimately upheld Obamacare, subtle backhands at the law can be found throughout the majority opinion.
2. The Much-derided Broccoli Analogy Carries the Day - Commerce Clause Argument Rejected
"
Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make [but doesn't] within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him. ... [M]any Americans do not eat a balanced diet. ... The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. ... Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables. ... That is not the country the Framers of our Constitution envisioned."
- Solid logic, which was famously ridiculed by the mainstream media and talking heads on the left after oral arguments. It was good to see that that Supreme Court reined in several decades of unrelenting Commerce Clause expansion, BUT ...
3. Individual Mandate Valid as a Tax
"
The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."
- So what the feds can't do (compel you to engage in commerce via the individual madate) under the Commerce Clause, they can do if the mandate is reasonably construed as a tax? Isn't the practical effect - getting more people to buy health insurance - the same, as many on the right argue? So what difference does it make? Shouldn't we be concerned here? Doesn't this just unleash Congress's taxing power, as depicted in the cartoon? The majority provides 3 considerations to allay these concerns:
a. Unlike under the Commerce Clause, the Constitution does not make any promises to shield us from federal regulation via taxation as long as we do not engage in activity. Plus, Congress already uses tax incentives to encourage buying things (e.g. homes, professional educations) whereas SCOUTS has never sanctioned, under the Commerce Clause, the government's mandating of the unwilling citizenry to engage in commerce by purchasing products that the paternalistic government deems necessary.
b. If the Court decides that the mandate is a "tax," then that means that it is not punitive in nature (notwithstanding Congress's frequent use of the word "penalty" in the statute), which would be much worse and unconstitutional under the Taxing power. The outer limits of a "tax" are also policed aggressively by the Courts.
c. Government can exercise much more control over your behavior under the Commerce Clause than it can under the taxing power. In other words, "Congress may simply command individuals to do as it directs [under Commerce Clause regulations]. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the rightto bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in othercontroversies, such as custody or immigration disputes. By contrast, Congress’s authority under the taxingpower is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punishindividuals subject to it."
- I'm no tax attorney, but I'm not sure I buy this last distinction. Isn't it a federal felony to not pay income taxes (Wesley Snipes comes to mind)? If convicted for tax evasion, aren't you then branded a criminal and would thus suffer the same attendant consequences that Roberts lists above? The dissent may have something to say here, but I didn't get that far.
I would add a 4th consideration:
d. It is much more politically difficult to pass something that looks like a "mandate" if you have to call it a "tax" to ensure that is passes constitutional muster. That word is politically toxic, and politicians will avoid it if possible. Roberts' opinion just made it that much more difficult to do, and provided conservatives with good ammo to grow and solidify its majority of people who disapprove of Obamacare by allowing it to be labeled as such going forward.
4. Feds can't threaten to withdraw all Medicaid funding from States if they don't comply with Obamacare's Expansion
"When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. ... The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the Stateswith no real option but to acquiesce in the Medicaid expansion."
- This ruling (7-2, by the way) essentially allows the states to "opt out" of the Medicaid portion of Obamacare if they so desire.
I'm interested in your analysis of the decision and how it may affect things (health care system, upcoming election, etc.) going forward. Comment away!
