Posted by Brad @ 10:12 am on June 28th 2012

The Mandate Survives

Roberts joins the left in the decision, and law watchers everywhere are furiously parsing trying to figure it all out. Go here to follow.


  1. “The bottom line: the entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.”

    Comment by Brad — 6/28/2012 @ 10:14 am

  2. Broccoli for all!

    Comment by Rojas — 6/28/2012 @ 10:18 am

  3. Basically, they held that the mandate is pretty much just a tax anyway, so it falls under legal authority. Which does make sense – the fallback for Obama here would have been to simply pass the same law cast as a tax, which they probably should have thought about in the first place.

    Curiously, from the liveblog:

    “Amy Howe: The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate.”

    Edit: A clarification: “Tom: Apologies – you can’t refuse to pay the tax; typo. The only effect of not complying with the mandate is that you pay the tax.”

    That seems rather academic to me, given that if you don’t pay the tax you go to jail.

    Comment by Brad — 6/28/2012 @ 10:22 am

  4. Heh. Regarding Medicaid, it is not actually significantly narrowed:

    The key comment on salvaging the Medicaid expansion is this (from Roberts): “Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.” (p. 55)

    Given that Medicaid funding is, I believe, allotted annually, the power of the federal government to punish states for not taking part is restricted only in the sense that they have to construct their sentences differently.

    Comment by Brad — 6/28/2012 @ 10:24 am

  5. Following your formulation, Brad: I count exactly one justice whose opinion on the constitutionality of this legislation is different than his presumed opinion on its desirability. I think a lot of progressives owe Justice Roberts an engraved apology.

    Comment by Rojas — 6/28/2012 @ 10:26 am

  6. Interestingly, Rojas, as more is coming out, Roberts upheld the mandate but explicitly not via the Commerce Clause; rather, via the government’s taxation powers. A concurrence appears to be from the liberal side, led by Ginsberg, that explicitly says it is upheld by both.

    Comment by Brad — 6/28/2012 @ 10:28 am

  7. So, to put that another way, there were FOUR votes on upholding the individual mandate because health care is interstate commerce and thus the government can regulate all decisions going into it based on the commerce clause. The key was that there were FIVE votes that you can just call the mandate a prohibitive tax on non-insured people, and it’s legal that way.

    This may be the key distinction, both politically and legally, of the whole thing.

    Comment by Brad — 6/28/2012 @ 10:30 am

  8. Heh.

    In opening his statement in dissent, Kennedy says: “In our view, the entire Act before us is invalid in its entirety.”

    Comment by Brad — 6/28/2012 @ 10:30 am

  9. Well, if all the government has to do is call it a “tax”, then it’s pretty clear that there is no restriction whatsoever on the ability of the government to force people to enter into economic transactions with private parties. The commerce clause becomes irrelevant as a guarantor of individual liberties; we are merely splitting hairs over a question of grammar.

    And so opponents of the PPACA will need to mobilize through electoral means, which is kind of how democracy is supposed to work in any case.

    Comment by Rojas — 6/28/2012 @ 10:32 am

  10. Putting it all together:

    Amy Howe:
    In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

    Comment by Brad — 6/28/2012 @ 10:33 am

  11. Well, if all the government has to do is call it a “tax”, then it’s pretty clear that there is no restriction whatsoever on the ability of the government to force people to enter into economic transactions with private parties. The commerce clause becomes irrelevant as a guarantor of individual liberties; we are merely splitting hairs over a question of grammar.

    Yes. What I’m trying to think through are the implications. In fact, the end result actually may be MORE expansive of federal authority than the Commerce Clause has been thus far, because the JUSTIFICATION no longer matters whatsoever; it comes down to the MECHANISM. Combined with the Medicaid ruling, the federal government is free to put any qualifications it likes on any money they give the states, and free to penalize any individual in essentially the same way. Again, on what grounds they do so was apparently not really considered the primary germane question. Which may be a deceptively far-reaching finding.

    To put that another way, you say “to force people to enter into economic transactions with private parties”, except near as I can figure, because this jumps the Commerce Clause entirely, really, to force people to do anything whatsoever – social transactions, political transactions, personal transactions, and with private parties, or public parties, etc. – “commerce”, however tenuously defined, need not enter into it whatsoever.

    Comment by Brad — 6/28/2012 @ 10:37 am

  12. Here it is:

    Comment by Brad — 6/28/2012 @ 10:39 am

  13. From the Corner liveblog:

    This is what happens when conservatives ignore liberty principles (which they often do) and put someone like Roberts on the Court? He has been deferential to government power in many areas of the law. He is a conservative, not a libertarian. Deference to tradition and we’ve had a 100 years of tradition in the law that is deferential to government power.

    Indeed. But he was, in fact, hired precisely FOR that deference to authority, when the germane domain of it national security and social engineering. See, Republicans, how that bites you in the ass?

    N.B. Liberals, the grounds on which you achieved partisan victory today will bite you in the ass as well, when you discover that taxation or withholding money can just as easily be a mechanism for, say, President Duncan Hunter to fiat his views of immigration and minority rights, or President Palin’s social engineering campaign, President Cheney’s thoughts on what Americans should be forced to submit to for the national security superstructure, or especially when conservatives realize that, once in power, they will hold the levers over every health care decision made in America, be it abortion, birth control, right to life (Terry Schiavo), ex changes, drug availability or distribution, grounds of treatment, etc. etc.

    Comment by Brad — 6/28/2012 @ 10:45 am

  14. Of course Reason would have the best reactions.

    Before today the Republican Party was running against ObamaCare with a candidate who signed the pilot version of ObamaCare. Now it also gets to run against a Supreme Court decision written by a Republican appointee.

    That’s me guilty of what I called out in yesterday’s post, but whatever.

    More on point, this headline says it all, I think.

    Comment by Brad — 6/28/2012 @ 3:17 pm

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