Supreme Court Upholds Affordable Care Act In Its Entirety
Thanks to a surprising decision by Chief Justice Roberts, the Affordable Care Act has survived the Constitutional challenges against it.
The most anticipated Supreme Court decision in years ended coming down in a manner that very few people expected. After two years of everyone focusing on the question of whether or not the Commerce Clause gave Congress the authority to force people to buy health insurance, the Supreme Court ended up upholding the law on completely different grounds via a very unlikely majority:
The Supreme Court on Thursday upheld the individual health-insurance mandate that is at the heart of President Obama’s landmark health-care law, saying the mandate is permissible under Congress’s taxing authority.
The potentially game-changing, election-year decision — a major victory for the White House less than five months before the November elections –will help redefine the power of the national government andaffect the health-care choices of millions of Americans.
Chief Justice John G. Roberts Jr. sided with the majority in voting to uphold the law, Obama’s signature domestic initiative.
Passage of the legislation by the Democratic-controlled Congress in 2010 capped decades of efforts to implement a national program of health care. The legislation is expected to eventually extend health-care coverage to more than 30 million Americans who currently lack it.
Republicans in Congress and GOP presidential challenger Mitt Romney have vowed to try and repeal the measure after the November elections.
The health-care issue thrust the Supreme Court into the public spotlight unlike anything since its role in the 2000 presidential election. The court’s examination of the law received massive coverage — especially during three days of oral arguments in March — and its outcome remained Washington’s most closely guarded secret.
The court reviewed four questions: whether it was within Congress’s constitutional powers to impose an “individual mandate” to purchase health insurance; whether all or any additional parts of the law must be struck down if the mandate is rejected; whether an expansion of Medicaid was unduly coercive on the states and whether all of those questions can even be reviewed before the mandate takes effect.
On the Medicaid question, the judges found that the law’s expansion of Medicaid can move forward, but not its provision that threatens states with the loss of their existing Medicaid funding if the states declined to comply with the expansion. The finding immediately raises questions as to how effectively the federal government will be able to implement the expansion of the joint federal-state insurance program for the poor.
The most crucial issue before the court was considered to be the individual mandate, known technically as the “minimum coverage” provision, because striking it down would jeopardize the ability of insurers to comply with other, more popular elements of the health-care law without drastically raising premiums. Under those other provisions, for example, insurers can no longer limit or deny benefits to children because of a preexisting condition, and young adults to up age 26 are eligible for insurance coverage under their parents’ plans.
During oral arguments in March, conservative justices indicated they were skeptical about the individual mandate, the provision in the 2,700-page health-care law that requires nearly all Americans to obtain health insurance by 2014 or pay a financial penalty.
Arguing the case for the Obama administration, Solicitor General Donald B. Verrilli Jr. defended the law as a constitutional exercise of congressional power under the charter’s commerce clause to regulate interstate commerce. He said lawmakers were regulating health insurance to deal with the problem of millions of people who lack coverage and therefore shift costs to the insured when they cannot pay for their medical care.
The court rejected the commerce clause argument, but ruled that Congress nevertheless had the power to impose the mandate because it can be considered a tax.
The fact that this was a 5-4 decision is not surprising at all, of course. The fact that it was a 5-4 decision where Chief Justice Roberts ended up breaking with his conservative colleauges and becoming the deciding vote to uphold the signature legislation of a Democratic President is very surprising. Even more surprising, though is the fact that it was the tax argument, of all things, that ended up deciding the case. If the Court had been limited to consideration of the Commerce Clause justifications for the mandate, then Roberts, who explitictly rejects the Commerce Clause arguments in his Majority Opinion, would have been the deciding vote to strike the law down.
Reviewing the oral arguments from the day that the Court considered the validity of the mandate, the honest truth is that there was very little discussion of the tax argument from either side, and little questioning about it by the Justices. This isn’t entirely surprising. The day before, the Justices had been very incredulous about the arguments that the Anti-Injunction Act barred any ruling on the Constitutional of the law until someone had been assessed the penalty for not having insurance via the Tax Code. While they didn’t necessarily reject the idea that the mandate could be characterized as a tax, it certainly didn’t seem like the argument had garnered much sympathy. Additionally, even the Courts that had upheld the mandate had, for the most part, rejected the tax argument or simply declared that it was unnecessary for them to rule on that issue because they had already determined that the mandate was a proper exercise of the Commerce Clause power. The fact that the Court, or more specifically Chief Justice Roberts, accepted this argument and chose to use it as the basis for upholding the act is surprising, and a lesson that one never really knows what the Court will do.
This result is unlikely to be a surprise to one person. All the way back on March 28, 2010, Law Professor Jack Balkin argued that the mandate was Constitutional precisely because it was a tax, and there was no need to even look at the Commerce Clause arguments:
The individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance.
(…)
The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional.
The mandate is also not a “direct” tax which must be apportioned among the states by population. Direct taxes are taxes on land or “head” taxes on the general population. The individual mandate does not tax land. It is not assessed on the population generally but only on people who don’t buy insurance and aren’t otherwise exempt. It is a tax on behavior, like a tax on businesses that don’t install anti-pollution equipment.
Many important and popular government programs are based Congress’s ability to give incentives through taxation and redistribute tax revenues for public purposes. To strike down the individual mandate the Supreme Court would have to undermine many years of precedents justifying these programs that stretch back to the New Deal (and in the case of the rules for direct taxes, to the very founding of the country).
Many people dismissed Balkin’s argument, as did several Federal Judges, but it turns out he had it right all along. I suppose he’ll become pretty famous now.
There will be more analysis to come, and I will update this post with a bit more analysis as warranted. However, I think it’s safe to say we’ll be writing many posts about this decision and its impact on American law, the election, and American politics.
Here’s a copy of the opinion:
I wish I had cable tv right now. I bet Fox News is going apeshit. Better entertainment than election night 2008 even.
Not in its entirety, Doug. Medicaid expansion is severely limited, in fact, it’s made option for the states as they will not face losing all Medicaid funding if they refuse the expansion.
At the risk of being seen as taking a victory lap, I’ve been arguing for months now that this bill, while utterly flawed and problematic, was a permissible exercise of Article 1 taxation.
While that doesn’t make me feel any better about this bill, which remains seriously flawed, it does feel nice to have my argument validated.
So the GOP has ignored the nation’s business for years because they were tied up trying to prove that a constitutional law is unconstitutional?
That leaves us with the credit downgrade as the signature accomplishment of the GOP house.
Now I remember why I am a Democrat.
Reading from USA Today,
My initial reaction is that (a) this is what I long argued, and (b) it is really strange how prepared we all were for it to be overturned on political grounds.
What a bunch of pessimists we were.
@HarvardLaw92:
The next thread should be “where do we go next with health care?”
The US system still sucks, compare to the rest of the OECD.
@john personna:
I don’t see us going anywhere as long as the system hasn’t flown off of the rails enough to make it clear to John Q. Public that the status quo isn’t sustainable.
Sadly, I think the current healthcare mess (like many other social programs) will have to implode before people acknowledge that it needed to be fixed.
IT’S A TAX!
That’s the headline. Heading into the election, the Dems will have that surprise attack to deal with. Best of all it’s a Chicago tax, buy this from my friends or pay off
city hallthe White House, your choice.Wow. I agree, Doug – that was surprising on several levels. It’s interesting that they said the Fed can’t strip Medicare funds from states that refuse to expand their systems… are we going to see teabagger governors start up the bandwagon on secession again?
@HarvardLaw92:
I went backpacking this past week. We had a really crazy problem where as two of us hung bear bags 50 yards apart, “boom boom”, both branches broke, fell and clipped us. We were all OK after a little first aid, but what I learned was that half of us had no insurance. I also learned from some first responders on the trip that it’s pretty common now for people to go to the emergency room, get treatment, and just walk away.
Maybe the rubber will meet the road when the currently uninsured come up against the mandate?
Seems the Commerce Clause piece of the decision is binding precedent now which is not a bad thing.
Kind of ironic that Senator Obama voted against confirmation of Chief Justice Roberts. So much for the narrative that SCOTUS are a bunch of activist partisan hacks legislating from the bench.
@JKB:
If I’ve been telling you it’s a tax for a year or two, do you think you look smart to suddenly add the all-caps and exclamation point?
@JKB: Try selling that attack to middle & lower class people whose pre-existing conditions would otherwise keep them and their children uninsured and without any medical treatment whatsoever. See how far that gets you.
@JKB
I am sure you will soldier on in your quest for the individual right to stick others with one’s medical bills…
@Andy:
I admit to being surprised. While they validated my argument, I very much thought that the swing vote would be Kennedy instead of Roberts.
I also have to admit that, while I don’t always agree with Roberts, I have come to utterly respect the man & his integrity.
@john personna:
Hard to say. The
penaltytax imposed by the bill is honestly miniscule in comparison to what health coverage would otherwise cost them on the open market, so they’re frankly getting quite a deal. I don’t imagine that they’ll be much offended.Not only was Roberts the one to uphold it, but Kennedy was siding with throwing the whole thing out. There’s a peek into the alternate reality we could have faced, not just striking down the mandate but scrapping absolutely everything.
Back during the debates, the ObamaCare backers were trying to have it both ways: it was a tax when it was required to be a tax; it wasn’t a tax when it was legally blocked from being a tax.
So… what do we do with all those ObamaCare backers who swore up and down and sideways “it’s not a tax! It’s not a tax!”
And gosh, I wonder if the Republicans will talk about Obama now being the biggest tax-raiser in history…
Someone send Jenos a bale of straw, he needs something to grasp…
@Jenos Idanian #13:
So… what do we do with all those ObamaCare backers who swore up and down and sideways “it’s not a tax! It’s not a tax!”
LOL, what do you do with them? What would you propose that you can do with them?
No thank you, I will pass. No offense, you guys have provided me with several hours of entertainment but I really need to be more productive and spend my entertainment budget more wisely.
This whole debacle just made clear what I already knew deep down. Political punditry is a mugs game. It is too riven with confirmation bias to have any real value. Even the people who wanted the ACA overturned knew that as a tax, the mandate was legal. So they ignored the tax angle and just focused on the commerce clause since that was there best chance of winning. Classic cognitive bias.
My parting shot, did any one else notice that the supreme court does not leak? I assume that the individual justices and their clerks know the final decision before it is released so that makes the Supreme Court that last DC institution that does not leak its news. I wonder how long that will last.
@Jib:
I assume that the individual justices and their clerks know the final decision before it is released
Correct. All of the justices and all of the clerks are aware of the ruling before it is released. To be frank, the clerks more often than not write the drafts, and the justices actually talk to one another so infrequently that it would probably boggle the mind of the average observer.
So what are the dollars and cents of the mandate? And when does it bite? I forget.
@Jenos Idanian #13:
Fixed that.
Actually Jenos, I totally agree with what you wrote. The only reason the mandate became known as a mandate versus a tax is the fear that Obama and the Dems had of being hammered for raising taxes in the midst of a recession.
The irony here — though it will probably be lost on many the folks who complain about how liberals like Obama and Clinton twist language — is that Roberts and co looked through the “window dressing” of the mandate and chose to (correctly) judge it for what it was, versus what people said it was.
This was Robert’s Lincoln moment:
@HarvardLaw92:
Even on these sorts of cases? I know that lower down in the federal system, clerks do most of the drafting — especially on the District level.
But it had been my (perhaps mistaken) belief that on the circuit level and at the supreme court level, the clerks shifted into an increasingly research role and that the justices did proportionately more of the drafting (especially on these “big” cases).
@mattb:
So you’re saying they lied in order to get it passed? That’s a helluva admission….
@Andy:
As I’ve said, was it really that hard? The law was written for the justices to read. Political and media comments were for other audiences.
The Supremes do not, and cannot, take random tv appearances as superseding law, as written.
@Andy:
I’m not sure if I would go so far as to say “lied.” I would suggest that they played fast and loose with the truth in a way that both sides typically do in US politics.
The tax becoming a “mandate” is in my mind the same type of political expediency as enacting a “temporary” tax cut knowing full well that once in place it will be all but difficult to overturn and then, even more cynically, refer to what happens when the cut runs it’s planned course and expires as choosing to “raise your taxes.”
Admittedly, this sounds like weasel words (to use the Wikipedia phrase) but it’s the same sort of weasel wording most of us do to get our way (or make our arguments stronger).
crap.. that should have been “all but impossible…”
@john personna:
Well, aren’t you smart, knowing it was a tax and all. Do you know who didn’t know/admit it was a tax? Barack Obama, Nancy Pelosi, Harry Reid or pretty much any Dem that voted for ADA. Now they are heading into an election with that headline, should their minions in the MSM break ranks and go for circulation.
But I went with all caps because I was thinking about how soon before we see Admiral what’shisname saying that in a Youtube clip.
@legion:
Now why would I try to sell that to people who clearly needed some sort of charity/assistance when you can sell the attack to the healthy young 27-40 yr olds who will be paying well above their actuarial risk for this mandated health insurance while servicing their student loans taken out for fancy degrees in useless fields of study? Do you see the conflict growing here?
@john personna:
So what are the dollars and cents of the mandate? And when does it bite? I forget.
For individuals, $95 or 1% of income in 2014. Unless Congress makes changes, it escalates to $695 or 2.5% in 2016. For families, it is limited to 3 times the individual charge.
@JKB:
Take it as a lesson. Keep your eye on the ball.
@HarvardLaw92:
Thanks. You’re right. That’s small money.
I suppose it might repay one scraped knee emergency room visit, if transferred efficiently, but barely that.
@mattb:
Yes. The norm at SCOTUS is for the clerks to write at least the first drafts. Bear in mind that they are largely crafting language that is dictated by the position their justice has delineated to them, although they can (and often do) subtly influence the thinking of that justice during discussions.
Souter was a notable exception. That guy wrote every word of his own opinions, in longhand, with a fountain pen. I love him … 😀
In other words, they aren’t crafting the reasoning of the opinions so much as the verbiage used to express that reasoning. The reasoning itself remains very much that of the justice, not so much that of the clerk.
@HarvardLaw92:
Ahhh… that makes much more sense than how I initially parsed your comment.
And it also seems the reverse of a lot of what I’ve seen as an observer of District Court procedures (IANAL & IANAC).
@Jib:
If there was a tell about the decision, then it was what a reader on Talking Points Memo pointed out, Scalia’s weird behavior lately.
@john personna:
What stumps me is the provision that IRS can’t levy or garnish (as I remember reading it – that could be in error) in order to collect it, so I’m sort of left with an unresolvable dilemma with regard to how the act proposes to actually collect it.
I agree that many of the people this applies to already receive net tax refunds due to the refundables, so the IRS would simply deduct it from whatever else the taxpayer was due (which, as suspected, makes it simply another program being paid for by someone else).
What do they do though, for example, with the guy who, say, otherwise already owes a tax payment, but who simply decides to deduct the penalty from the payment he otherwise tenders? He’s probably a rare bird, agreed, but you know that it’ll happen.
@HarvardLaw92:
Complete aside (and outing myself and my honey as Supreme Court Geeks), we named our reclusive orange cat who spends most of his time in his “office” (the basement crawl space), only emerging to give an occasional proclamation, “Souter.”
@john personna: We now have the largest tax increase in our lifetime passed today by the Supreme Court. I guess next we will all have to buy a Chevy “Volt” or face a tax penalty. Or will it be broccoli?
@Racehorse:
As I say in the other thread, we live in a great democracy. If you are for, or against, broccoli mandates-as-tax you can vote for the Broccoli or Big Gulp party. As you prefer.
The be honest, it is a higher politics when you accept that yours is not the only vote, and that yes, you can support democracy itself.
@Racehorse:
Did you know that a horse will go into a blissful trance when you pinch its upper lip? Just don’t try it while you’re driving.
@HarvardLaw92:
I’d guess that in practice the mandate will catch people in a thin, middle, band … well employed but uninsured.
Below that are people tenuously employed, and often without consistent tax filing.
I have to admit that had I bet on the outcome of this decision, I would have lost a lot of money.
I just watched Mitt Romney try to make the best of it by claiming that ACA is a job killing bill. Which, as someone who made a living by acquiring companies and killing jobs, he might know something about.
@john personna:
It’ll catch anyone whose employment generates the submission of a W-2 to the IRS by their employer who is also required by the statutes to file a return. if they fail to do so, they wander into criminal penalties for failing to file.
I suspect it’ll also catch the ones that aren’t otherwise required to file, but who do so anyway in order to claim the refundable credits. I don’t imagine that anyone will make the rationalization that it’s worth losing, for example, their EIC just to avoid having to pay a
penaltytax for which they get greater value in return.@JKB:
There’s your key demo right there. People in their early 20s still think they’re pretty immortal. People in that 27-40 range start realizing they’re not. Actuarial tables are probability charts, not certainties – any give person _might_ have a major hospital expense at any time. And if they do, it’s a bankruptcy-level event for anyone without _lots_ of insurance. 27-40 year olds realize this. They also can’t afford coverage without the sorts of protections the ACA gives. Unless you agree with Tyler Cowan’s op-ed position that American Exceptionalism means it’s ok for poor people to die, _something_ has to be done to improve healthcare accessibility in this country, and it is an absolute 100% guarantee that neither Republicans nor the insurance industry would do that.
I just watched Romney’s response…..they seriously should just not talk about healthcare.
His credibility is shot and he just looks complete phony when he talks about repealing it.
@legion: “They also can’t afford coverage without the sorts of protections the ACA gives.”
The sort of protections the ACA give for the 27-40 yr old, the vast majority who are healthy and do not have significant health events, is for them to pay the Obamacare tax then when they get sick, get the affordable mandatory coverage at affordable rates. It is far less rational for them to pay the high rates for healthcare they likely won’t use during these working years when they can pay the smaller tax to the federal government. This will collapse the health “insurance” industry which seems to be the plan.
It has already been shown that the ADA requirements are causing massive premium hikes on the majority of the insured for services they won’t need or use. It has to be this way or there is no way to cover the costs of the sick and those with previous conditions.
Many institutions, such as student insurance at universities, are already canceling the offering of health insurance coverage.
All this seems to indicate that health care is now back on the agenda if only to correct the damage done by the Democrat lies about ADA.
@Bennett: http://www.foxnews.com/opinion/2012/06/28/chief-justice-roberts-does-right-thing-on-obamacare/
On “What a bunch of pessimists we were” see also the InTrade results.
Markets as prediction tools fail again.
@JKB:
And will they be forever young, always in the 27-40 age bracket?
(Though the InTrade results do show that clerks can keep their secrets.)
The Affordable Care Act has been a daunting process on most Americans. Today’s decision will impact on how the American economic landscape will actually recover from now going forward. Initially I think businesses can expect to face some uphill challenges in trying provide this new healthcare. Undoubtedly, we will see the job market suffer a bit in order to keep up with this new order (http://abcn.ws/NRChMR).
@GilbertEA: I think the fact that the average person won’t have to worry about “pre-existing conditions” (you had asthma when you were young! No insurance for you!) causing them to not get health insurance at all will make up for that, thank you.
Me thinks I will opt out of my insurance and pay the penalty, sure would save me a bunch of money.
Yeah but at the same time the dems went through the whole rigamarole of passing the godawful sausage PPACA bill which came really close to getting overturned in the SCOTUS and which forces us all to be the slaves of the god damn insurance company vampires when they could have just passed a medicare for all style single payer system similar to what works all over the world.
They were to craven and cowardly to do the right thing, which is why we are stuck where we are- stupid party and evil party.
Which is why I’m not ascribing to either.
I guess I’d tell them “One out of nine SCOTUS Justices think it’s a tax.”
That and a $5 bill will get you a cup of coffee…
@js4strings:
Because, of course, you will never need medical care in the future, right? Idiot.
Except that’s the point isn’t it? When you need it you can go get it, exactly the issue the mandate was supposed to address, except that if the tax penalty is less than the insurance premium there’s no good reason to get the insurance. You’ll still be able to get emergency care, and you can get insurance whenever you want to cover ongoing problems.
Trying to both maintain private insurance as a for profit industry (which when you think about it is one of the most disgusting ways to make a buck imaginable) and provide for universal care is a fool’s errand. The only realistic outcome is really crappy care for most everyone with a hugely expensive bureaucratic overhead. Single payer would have been so much simpler.
@Tlaloc:
If there would have been votes for single payer, that would have been great.
As it is … the Massachusetts results aren’t so bad are they? People are talking about dire consequences at the national level, but we don’t hear so much about failures of RomneyCare in practice.
We have a funny little moment, with the now Democratic Governor of Massachusetts waxing euphoric over RomenyCare:
Not a problem for me. The CEO of Wellpoint makes what, 60 million a year, while trying to figure out new and better ways to screw people who have been paying premiums in good faith for years when they need treatment?
Health insurance is just one more area in which we have become a backwater.