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Affordable Care Act Upheld by Supreme Court
Saturday, 2012 July 7 - 2:55 pm
Continuing in my three-part series of "things that were news weeks ago but I'm only just now getting around to commenting on", the Supreme Court last week upheld the Affordable Care Act ("Obamacare") in a 5-4 decision, with Chief Justice Roberts being the surprise deciding vote.

Individual Mandate

In the decision, Roberts rejected the idea that the individual mandate in ACA (requiring all citizens to purchase health insurance or be subject to a tax penalty) was a valid exercise of the Commerce Clause of the constitution (which permits the federal government to regulate interstate commerce), but that it was a valid exercise of Congress' taxing authority.

First, let me clear in that I'm siding with the four liberal members of the court in saying that I would have said the Commerce Clause should have been the thing that upheld the law. Health care is utterly unique when it compared to other types of commercial markets in that vendors (hospitals and doctors) are sworn by oath and tradition to provide the product (medical attention) to anyone who needs it, even if they cannot afford it. Health care is also the largest part of the federal budget and an enormous portion of our economy. It should be plain that the problems in the health care system can only be solved at the national level.

The bizarre part was that Roberts decided to use the taxing authority as the basis for upholding the mandate, because had that been the only question in the case, he might have been in a 1-8 minority on that opinion. I'm sure the liberal justices went along with that argument because the effect was to uphold the mandate, but it's weird... it's arguable that this is the only tax in history that's imposed on people who do nothing.

The only sense I can make out of this is that, because you can avoid the tax penalty if you are below a certain income level, that this really can be construed as a form of income tax. But it's certainly a stretch. One fear, of course, is the slippery slope: what if Congress imposed a $10,000 tax on, say, abortion? Roberts tries to draw a line by saying as long as the tax is not intended to be punitive, it's OK. The ACA's individual mandate qualifies as non-punitive because the tax is intended to recover the cost of health care that is already being spent on uninsured people. But still... even for the most ardent supporter of federal power, this argument seems like it could be used in dangerous ways.

Another problem: if it's a tax, then Congress may be able to gut the mandate by repealing the tax... and by using parliamentary procedures in the Senate (the "reconciliation" rule), that tax change might not require a filibuster-proof 60-vote majority in the Senate to accomplish. (In a turnabout twist for liberals, it was reconciliation that allowed the ACA to get passed in the first place.) But still, Republicans will face several challenges in trying to do this.

First, they'd need to secure both houses of Congress and the Presidency. It's possible, and the Senate is certainly in play this November, but it's far from certain that Romney will beat Obama. Second, repealing the tax will cause deficits to rise, and that may be politically unpalatable even for some members of their own party. Third, the "Byrd Rule" in the Senate requires that anything passed using the reconciliation process not have negative consequences to the deficit for more than 10 years. (This is why the Bush tax cuts had an expiration date, and it may mean that they'll have to put a sunset provision in the mandate). Fourth, it won't wipe out the provision that insurance companies must cover people with pre-existing conditions, so killing the mandate will only hurt everyone else by making premiums go up. It would really be only a symbolic victory for Republicans if they did this... essentially cutting off their noses to spite their faces.

So in all, the decision was strange and dangerous, and the consequences are murky. This war isn't over yet.

Medicare Expansion

The other major decision also struck me as odd. The Supreme Court struck down the ability of Congress to withhold Medicare funds if states decided to opt out of the Medicare expansion. There are two problems here.

One is, Medicare expansion would have been the means for a large percentage of uninsured people to gain coverage. Without this expansion, they'll have to rely on private insurance, or a state or federal insurance exchange, which will almost certainly cost more than Medicare would. This may make uninsured people more likely to opt out of insurance altogether (and pay the tax penalty instead), resulting in more people being uninsured, fewer healthy people in the insurance pool, and higher premiums for everyone else. So to some degree, this is a victory for conservatives as it does dampen the effect of the individual mandate.

The second problem is that this seems to be a new precedent, the idea that Congress can't make a significant change to an existing federal funding program and require the states to comply with its conditions. The Supreme Court's reasoning here was that the expansion was so new as to be a completely different thing, and that it was coercive to threaten to withhold existing Medicare funds if the states did not accept the expansion. But I'd argue that, say, withholding all highway funds if states did not comply with a national speed limit would be similarly coercive, and that didn't stop Congress from doing it in 1973. This is a blow to the federal government and a nod to states' rights, so conservatives will like it... but on the other hand, Congress may find its hands tied from, say, reducing Medicare payments to states that fund Planned Parenthood.

Justice Roberts

The perplexing thing for a lot of conservatives was this: Why did Roberts, who is normally reliably conservative, vote the way he did? They could have envisioned a defection by Kennedy, or perhaps both Roberts and Kennedy together, but almost no one envisioned a 5-4 split with Roberts on the liberal side.

My theory is that Roberts is greatly concerned about the appearance of politicization in the Supreme Court. A 5-4 split with conservatives voting to undermine one of the largest accomplishments of a Democratic administration... that could have done a lot of damage to the Court as an institution, by making it seem like just another partisan battleground. This is the Roberts court, and he is likely greatly invested in upholding the appearance of integrity in the legal process itself.

I personally have known both Republican and Democratic lawyers, and there is one thing that they both seem to agree on: the importance of the rule of law. It is people who are outside the legal field that squawk about "judicial activism" and "rogue judges", but it's my observation that lawyers and judges tend to be most concerned about upholding the legal system, even if that is sometimes at odds with their personal beliefs.

So in the end I think Roberts did what had to be done: if there was any possible way to save the law, he was going to do it. He admitted as much in his written opinion, quoting Hooper v. California: "Every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." By doing so, he may have enraged conservatives, but he may also have done a great deal to protect the Court itself.

I'm hopeful that this will be good for Roberts in the longer term, too: the more he is subjected to the venomous brand of politics that the Tea Party provides, the more he may see the need moderate his stances on politically charged issues.

Maybe that's a lesson for the whole country.
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Posted by Ken in: politics

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