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The Umpire Returns: Roberts’ Decision In The Affordable Care Act

The Umpire Returns: Roberts’ Decision In The Affordable Care Act

So it happened. In a 5-4 decision Chief Justice John Roberts cast the deciding vote to save Obamacare and likely the legacy of his tenure at the Court.

For those of us watching the development of the law and its challenges, there was no real serious question as to the constitutionality of the Affordable Care Act. Instead, the question was whether or not Roberts would cave to partisanship and render the reputation of the Court into the darkest ages only occupied by the Taney and Lochner eras. That’s because the theories put forth to challenge the act–namely that Congress does not have the authority to regulate commerce to such a degree as to equalize the health insurance marketplace either through its taxing powers or through the commerce and necessary and proper clauses–are the kinds of arguments that make for serious sounding blog posts but not much else.

The heart of the Chief Justice’s opinion sets forth a simple truth that the Democrats should have seized on a year ago: the Affordable Care Act forces no one to do anything. Instead it simply increases the tax liability of those who chose to opt out of the insurance structure. That doesn’t make the mandate a tax per se, just an appropriate use of Congress’ taxing power. Only the most radical of the right wing believes essentially all taxing power is unconstitutional so, when you boil it down, Roberts’ decision and its holding as to the taxing issue falls not so much with the “liberal” wing of the Court as it does with the vast majority of legal scholars.

When the law works best it embraces these simple truths and sets them into policy, and that is precisely what this opinion does. Roberts was clear that he was not endorsing the measure and that, in fact, that was not his job (a lesson Justice Antonin Scalia could use). It was as if those kabuki confirmation hearings returned and Roberts returned to his role as “umpire” and simply decided to call a strike a strike.

So that’s the good news.

The bad news is that there is plenty in the decision to give progressives pause. For starters, a majority of the Court signed onto the “inactivity” argument, determining that Congress did not possess authority under the Commerce Clause to regulate the “inactivity” of not buying health insurance.

More troubling is the fact that a seven-vote coalition including Justices Breyer and Kagan held that the Affordable Care Act’s Medicaid expansion subjected state government’s to an unlawful coercion by conditioning potentially all of their Medicaid funding on participation in the new coverage provisions. That means that the federal government cannot do too good a job incentivizing states to sign on to the health care exchanges and punish those that do not by stripping funding.

Now. the opinion is clear that for the moment this reign on federal power is limited simply to the Affordable Care Act, but it raises a serious question as to why it only would be limited in this context. And it’s a question Roberts’ opinion fails to answer. Is it because the size of the potential monetary penalty is too big that Congress can’t act in this way, or is it because states risk loosing existing Medicaid dollars for failure to participate in a future federal program?

The opinion isn’t clear and, presuming conservative jurists read the opinion to endorse the latter, then the battles over funding Planned Parenthood in Texas, Arizona and Ohio, for example, will look like small incursions compared to the assaults conservatives will launch on federal public policy initiatives. But for now let’s celebrate this win–obviously for the millions who benefit under Obamacare, but also for the fact that there’s hope with the Court after all.

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9:30AM PST on Jan 21, 2013

Another couple of points that is very wrong with this article and Obamacare in general.
1. "nobody is forced...." Not true. We are forced to have insurance or pay a huge tax, enforced by those paragons of great sense, the IRS.
2. Those that have private insurance, that the new rules identify as "cadillac" plans, ie costing a family of any size $10k or more, have a 40% surcharge tax on their "plans". Instead of costing $10k per year, the private insurance costs 14K, a "tax" of 40%. This will insure most private plans get abandoned and the owners forced onto the exchanges where they will get less coverage for the same 10K and there will be longer waits if there are doctors in the system, which, unless they are forced into the obamacare plan and medicare, everyone on either will pay more for less, and still have to pay drs outside the system.
Insurance is the problem, not the solution. Insurance has nothing to do with health. This is nothing more than politically "correct" speech. Deceiving, misleading, illogical, irrational costly. This will help no one. The 20-40 million without insurance? I submit that the figure is false in that not having insurance is meaningless. I do not access the medical system. I educated myself and got healthy by staying away from it. Health does not equal medical care does not equal insurance. 350K die from hospital mistakes each year, that we know of. All had insurance. It is healthier to not have insurance and not access the medical system.

9:14AM PST on Jan 21, 2013

There is everything wrong with this article and the lack of logic, facts and misleading phrasing, and Obamaca in general.
One salient point the Pielko got very wrong. The proponents of Obamacare based the legislation on the power of Congress to regulated commerce, not the opposition. SCOTUS ruled that Congress did NOT have the power under the commerce clause, only under the power to tax, an argument that the US attorney did NOT make. In fact, Obama et al specifically called the individual mandate a penalty, rejecting the tax idea, for several reasons. Roberts violated the responsibility of the court to rule on the constitutionality of the law as presented. He did not do so, but made up an argument that was not presented. There is NO hope for a court that is activist and hurts individuals and increases, unconstitutionally, the taxing power of the government.

10:10AM PDT on Jul 6, 2012

Amen, I'm glad you appreciate our posts. Unfortunately I can't return the complement, yours are just sad.

10:08AM PDT on Jul 6, 2012

Beth and Nyack,

LOL...thanks for making me crack up each time.

Your posts are soooooooFUNNY

5:59PM PDT on Jul 2, 2012

Amen, the more you post, the more obvious it is that you don't understand the ACA. Plus what the frick do you care, unless someone is paying you to post that dribble. Time for you to slink away.

5:27PM PDT on Jul 2, 2012

The people elected President Obama to fix our health care mess, and the Bush/Cheney economic mess. The Congress passed the health care reform bill. President Obama signed it into law, The Supreme Court ruled that it is constitutional. So between the people, the Congress, the President and the Supreme Court we now have health care reform. Yahoo!!!! The crybabies can have their tantrums, scream because they did not get their way until they are red in the face. We will still have health care.

9:50AM PDT on Jul 2, 2012

About this "they are spending my tax money" mentality.
If you really think about it - It is the the priviledged ones who have health insurance that are spending the underpriviledged uninsured's tax money.

The UNINSURED who work for small businesses or who are accumulating part-time jobs - it is not that they work less or pay less taxes than the INSURED who work in larger corporations.

Corporations receive all sorts of tax relief, the largest 30 corporations don't even pay any taxes. So if you work for large companies and corporations - with all that TAX benefit they get - it adds to their profit pool part of which, in turn, is used to provide health insurance for their employees.

So for all those who are either on Medicare, Medicaid or are insured working for large companies and corporations screaming " I'm tired of paying for the others with my tax money"...don't indulge in HYPOCRISY. Especially when that mentality is just warped and isn't anywhere remotely near the truth.

10:04AM PDT on Jul 1, 2012

About the hundreds of billions being spent to go after the terrorist. Americans are more likely to die at each other's hands from gang/street violence and hate crimes...and others...:

"The US homicide rate, which has declined substantially since 1991 from a rate per 100,000 persons of 9.8 to 4.8 in 2010, is still among the highest in the industrialized world. There were 14,748 murders in the United States in 2010[29] (666,160 murders from 1960 to 1996)"

9:43AM PDT on Jul 1, 2012

Don't just always eat up what is put into your plate - literally or figuratively.

Whether it be pesticides, hormones, drugs, chemicals, genetically altered stuff, "the terrorists are going to get you", "the immigrants are stealing your jobs", "the uninsured are spending your tax money"......etc. etc.

9:29AM PDT on Jul 1, 2012

Furthermore, William and Kat D,

When these uninsured come out of the ER - the astronomical hospital bills are right their waiting, along with harassment from collection agencies waiting for them. YOUR CLAIM that you are PAYING for them...well I'd like to understand such magnified claim of yourself.

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