WHAT THE COURT ACTUALLY SAID:
First, the Individual Mandate Is Constitutional When Construed as a Tax. There were three opinions issued today, with shifting majorities and odd pairings that made it a bit confusing to figure out what was actually decided. First, on the individual mandate, five justices held that Congress did not have the power under the Commerce Clause to require people to enter into the health care market and purchase something. Justice Roberts’ opinion was “for the Court,” but in fact was joined by no other justice, at least on this question. The four conservatives (Thomas, Alito, Scalia, and Kennedy) wrote their own opinion. The two opinions come out the same way on this question, but the 4 Amigos language is a bit starker, a bit more hyperbolic (surprise surprise), and certainly farther reaching. That makes Roberts’ opinion the controlling one. Although Ginsburg accused him of a “cramped” and retrograde reading of the Commerce Clause, his opinion basically only outlaws future mandates. The four uber-conservatives, by contrast, call into question the legitimacy of broad swaths of federal exercises of power, including at one point suggesting that the Departments of Education, Health and Human Services, and Housing and Urban Development may be unconstitutional.
Roberts’ holding on the Commerce Clause question is what caused the initial reports to say that the mandate was struck down. Those reporters had stopped reading too early. Roberts, now joined by the four liberals (Kagan, Sotomayor, Breyer, and Ginsburg) held that the mandate could be construed as a tax on those without insurance, and this tax fell within Congress’s legitimate taxing authority. The tax power is very, very broad, and this opinion essentially left it limitless.
Second, the Medicaid Provision Was Upheld, But Modified. The Court next addressed the expansion of Medicaid, which adds about 17 million people to the Medicaid rolls. The states argued that the expansion was unconstitutionally coercive, because the law said they either had to accept the new expansion (and the new federal money coming along with it) or, if they refused, they would have to give up all their Medicaid funding, which totals about 20% of state budgets. On this question, seven justices agreed with the states (only Ginsburg and Sotomayor disagreed). But Roberts, joined again by the liberals, said that the way to avoid this unconstitutional coercion was to make the new funds separable from the old funds. So a state could refuse the expansion, and the new funds, without imperilling their other Medcaid funding. (Soto and Gins, while rejecting the notion that the funding was coercive to begin with, agreed that it could be separated from the older funding, thus giving Roberts five votes for that fix.)
The Medicaid portion thus imposed restrictions on the Congress’s otherwise vast Spending power -- for the first time ever, in fact. Roberts wrote that the federal government can use its money to pressure states into doing certain things. “But when pressure turns to compulsion, the legislation runs contrary to our system of federalism.” He said that this take-it-or-leave-all-of-it Medicaid expansion gave states no real choice; “it is a gun to the head.” (He also insists that the expansion creates a whole new program that is effectively not Medicaid anymore, because it no longer focuses on providing care for the “neediest among us,” the mission of the original Medicaid. Ginsburg knocks this assertion down by pointing out that the expansion covers those earning up to 133% of the poverty level, or an annual income of $14,856. Surely, she says, these people “rank among the Nation’s poor.”)
ROBERTS = PROGRESSIVE HERO: That headline is a joke, of course, but it is true that it was Roberts, and not Kennedy, who provided the crucial fifth vote. If it had been up to Kennedy, not only would the mandate and the Medicaid expansion have been struck down, but the entire act -- including the parts that have already gone into effect -- would have been held invalid. That’s what he and his three buddies wanted to say. Roberts threaded the needle so that he could write an opinion that at least gives lip service to limits on the Commerce Power, and provides some potentially real limits on the spending power, while still upholding the law and avoiding making the far-right Court a central issue in this political campaign. I think it’s stilly for liberals to say that Roberts has proven himself to be entirely principled and a real judicial moderate or minimalist (see, e.g., Citizens United). And I think there is something to the idea that this gives Roberts enormous cover to make some super radical decisions in the future (on affirmative action, the Voting Rights Act, etc) and still be able to plausibly deny being a partisan hack. But even with those caveats, this was a hugely important and consequential move by Roberts, and it’s undeniable that Roberts single-handedly saved Obamacare.
AT BOTTOM, OBAMA WINS BIG: In the end, President Obama had a very good day. The entire law was upheld, with only a small change to the Medicaid expansion that most likely won’t have an effect since the vast majority of states will take the free money handed to them. I would not be surprised in the slightest to see the poll numbers on Obamacare to improve, and improve dramatically. People don’t like laws that are stuck under a cloud of uncertainty and questionable legality; now that the Supreme Court, led by George W. Bush-appointee John Roberts, has sustained it, they can be more sure that there’s nothing fishy going on, nothing secretly underhanded and scary. And beyond politics, we can’t ever forget that the mandate itself attributes for more than 20 million of the 33 million Americans who gain access to insurance under this law. If the mandate had been struck down (let alone the entire law), millions of people would be thrown off insurance plans they just got on, or would be denied the chance to ever have affordable access to medical care. This is a huge win for them. Of course, it will likely fire up the GOP base and give them a bigger reason to fight to defeat Democrats in November (Mitt Romney is already lying through his teeth about the bill). But that right-wing anger won’t have much of anywhere to go: After all, it was their supposed standard-bearer who shepherded his own mandate-featuring health reform into law just a few years ago. (Indeed, one of the best parts of Ginsburg’s opinion is her multi-paragraph tribute to the brilliance of Massachusetts’ solution to the health insurance problem. “In coupling the minimum coverage provision with guaranteed-issue [meaning no denial for preexisting conditions] and community-rating prescriptions [meaning everyone in a given age bracket pays pretty much the same rate], Congress followed Massachusetts’ lead.”)
OTHER GOODIES NOT TO MISS: There’s no reason really to report this, but it’s a fun exchange in the opinions. Roberts brings up the dreaded broccoli argument, though this time framing it as forcing people to buy “vegetables” in order to improve their diets, in order to reduce obesity, which affects health care, which has substantial effects on interstate commerce. This frightening scenario proved to Roberts that the government’s assertion of power under the Commerce Clause was unconstitutionally enormous. (The four conservatives went even farther, insisting that the government’s assertion of the scope of the Commerce power “is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”) Ginsburg, again, exposes these arguments--what she calls “the broccoli horrible”--for the absurdity that they are.
Consider
the chain of inferences the Court would have to accept to conclude that
a vegetable-purchase mandate was likely to have a substantial effect on
the health-care costs borne by lithe Americans. The Court would have to
believe that individuals forced to buy vegetables would then eat them
(instead of throwing or giving them away), would prepare the vegetables
in a healthy way (steamed or raw, not deep-fried), would cut back on
unhealthy foods, and would not allow other factors (such as lack of
exercise or little sleep) to trump the improved diet.
This piling on of inferences, Ginsburg says, is what the Court has always refused to do. What’s more, unlike a vegetable mandate targeted at eventual health outcomes, requiring people to buy insurance “attacks the source of the problem directly, in a single step.” The best part of her argument comes when she quotes Robert Bork to mock her colleagues: “Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.” BOOM.
A PERSONAL WRAP UP: You’ll notice a distinct dearth of links in this update. That’s because I have unfortunately not had really any time yet to digest what others have been saying. (Except for the circulating theory that the four amigos were originally writing for the whole court but then lost Roberts at the last minute, evidenced by the fact that they call Ginsburg’s opinon “the dissent.” This I have read and have rejected: They refer to her opinion as the dissent when discussing the Commerce Clause stuff, and her opinion was the dissent as it pertained to the Commerce Clause. Roberts has clearly been working on this opinion for a long time; he didn’t just pull it together at the last minute.) I haven’t had time because I’ve been working with NPR’s Nina Totenberg all day, which is my humblebrag way of saying that I was in the Court when the announcement came down this morning. Sadly, I was also seated directly behind a column and could only see the small face of Justice Breyer (who said nothing) by craning my head to peer through a metal grate. But still! The press was all in a tizzy, and I can tell you that I certainly experienced a roller-coaster of emotion and excitement that I could never have predicted. From the moment Roberts began his Commerce discussion, I knew the mandate was doomed. I couldn’t believe it, as I was frantically taking notes, that the Court was about to gut Obamacare. And then--out of nowhere--he takes a right turn, and begins discussing the little argument that no one (except Jack Balkin) ever paid much attention to! The Tax power! It was a tax! The adrenaline among the press corp was palpable; no one knew what to expect, and no one could believe that the mandate had just been clutched from the jaws of sure defeat and rescued by The Tax Man. My heart sank again during the Medicaid discussion, realizing that, coupled with the Commerce language, this opinion could mean a significant blow to federal power. But scholars and commentators we spoke to today made me rethink that worry. It is of course possible that this opinion could be the basis of future limitations on federal power, most likely under the Spending clause. But the Commerce stuff was really limited to mandates, the taxing power remains essentially unlimited, and even the Spending limits are more hypothetical than real. All in all, this was an incredibly exciting day to be at work, a huge win for the American people (not to mention Obama), and an experience I will not soon forget.
Some Links for further reading: The Slate breakfast table discussion (featuring, of course, Dahlia Lithwick) can’t be missed. This one on how terrible arguments won the day looks good, but I haven’t read it. SCOTUSblog is hosting a symposium, with lots of commentary from various angles. And here’s Nina’s story, of course.
