After Taking The Bait, The Chief Justice Prepares To Switch On The ACA

Yesterday’s oral argument before the Supreme Court was most notable in the collapsing of the false narrative used by many Democratic senators and media figures in the Barrett confirmation that the Affordable Care Act was close to being overturned in the case of California v. Texas. That conspiracy theory (of which suggested that the rush to confirm Barrett was to supply the final needed vote) was shattered when both Chief Justice John Roberts and Associate Justice Brett Kavanaugh repeated their position in favor of severance — a position that would guarantee the survival of the ACA. What was equally notable however was the slightly pathetic scene of Roberts effectively acknowledging that he might have been a chump in accepting the arguments on the individual mandate eight years ago in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). For years, Roberts has been on a collision course with himself — and yesterday he had a one-person pileup.

Eight years ago, Roberts sided with the conservative justices that requiring individuals to buy insurance was a flagrant violation of federalism guarantees, a view I shared. But in what read like a last minute addition, he voted with the four liberal justices in declaring that none of that matters because he viewed the individual mandate as a tax. It was a surprising turn, since both sides had denied that this was a tax. But by declaring the individual mandate an exercise of the taxing authority of Congress, Roberts saved the law. He insisted the individual mandate was the thumping heart of ObamaCare, which could not survive without its tax revenue from the healthy young citizens who would pay more into the system than they took out. Roberts wrote that “the individual mandate was Congress’s solution” to the existential problems associated with a national health care system. Likewise, the liberal justices joined Roberts in saying that, without the individual mandate, the other parts of the ACA “alone will not work.”

His decision, refashioning the mandate as a tax, appeared artificial and opportunistic to many of us. It also sowed the seeds of its own destruction by not just resting the survival of ObamaCare on the existence of the tax but by insisting that the law could not survive without it. Congress called his bluff by zeroing out the tax, which was the very thing that Roberts had said was needed to sustain ObamaCare as a constitutional matter.

In the oral argument in 2012, Roberts explored whether Congress could force Americans to buy broccoli to make themselves healthier. While Roberts ultimately ruled that the individual mandate (and broccoli compulsion) was a violation of federalism, he made all of that discussion moot by declaring the individual mandate a tax.

Now, the supporters of the ACA are back and insisting that the individual mandate was never really the essential element that they claimed to the Court. The painful position of Roberts was evident in oral argument:

“Eight years ago, those defending the mandate emphasized that it was the key to the whole act. Everything turned on getting money from people forced to buy insurance to cover all the other shortfalls in the expansion of healthcare. But now the representation is that, oh, no, everything’s fine without it. Why the bait and switch? . . . We spent all that time talking about broccoli for nothing?”

Well, it was not for nothing. It was a bait and switch. What is interesting is that Roberts took the bait and now appears ready to do his own switch. He suggested that he would again save the ACA through severance but do so by recognizing that the basis of his earlier opinion is now invalid. Indeed, Roberts himself could find the individual mandate unconstitutional.

So, Roberts could create a curious precedent: he saved the ACA in 2012 by declaring the individual mandate essential to the survival of Act and then may save the ACA again in 2020 by declaring that the individual mandate is not essential to the survival of the Act. If that seems confusing, welcome to the world of Chief Justice Roberts on the ACA.


114 thoughts on “After Taking The Bait, The Chief Justice Prepares To Switch On The ACA”

    1. No one is being thrown off healthcare.

      They might lose insurance. Those are not the same thing.

      Myriads of studies over more than 50 years have found that there is no correlation between health outcomes and insurance.

      Just as there is not correlation between home owners insurance and fires.

      Finally it was perfectly OK for Obama to force millions of americans to lose the insurance they had and liked.

      Just return Healthcare and insurance to the free market – as it was before 1965 and all this will go away.
      Insurance and healthcare will be much more affordable.

      The only goods and services whose prices have risen – both in nominal and real dollars are those that government regulates.
      The rises are directly proportional to the amount of regulation.

      I bought a top of the line fridge for $1300 in 1983 – that required about 500 hours of Minimum Wage labor to purchase,
      Today a far better fridge costs $999 – about 125 hours of MW labor.

      You can do that with almost anything. Those things that cost more today -are those government is most deeply entrenced in.

      Education, Heatlhcare,

  1. A perfect example of Judicial Activism, run cold, bare and obvious — and serially repeated in the same case.
    The previous decision allowing the ACA to exist was not just Roberts’, but the majority of the court, and as such the prior decision’s representations cannot be put only at the feet of Roberts. Indeed the whole court, precedentially stated clearly and unambiguously that the ACA could not exist constitutionally without the individual mandate.
    Now that the individual mandate is gone, suddenly it CAN exist without the individual mandate, in an equally blatant move of Judicial Activism, this time going against precedent to achieve a result that cannot be upheld by the law, and in contradiction of stare decises, or judicial estoppel.
    Previously all the litigants, and the ACA law itself, demanded and maintained that the individual mandate was a penalty, not a tax.
    It was uncontroverted. But the court recognized mandate could not be that and still be constitutional. So, on its own initiative, not asked by either litigant, the court changed the definition of the individual mandate, in order to achieve the result the court wanted, not what Congress had passed in law.
    Now faced with the same unavoidable result of ACA’s unconstitutionality, this time based upon the court’s own prior unambiguous proclamation, the court looks like it will again break all its own lauded rules of textualism, and force a complete breach of the rules and law to achieve its own judicial preferred result.

  2. He chose to play politics instead of remaining faithful to the law. Simple as that. A real disappointment.

    1. Ironic how the Chief Justice of the entire nation is obviously a terrible Judge who uses logic to justify opinions he then makes into law, exactly what he is supposed to prevent.
      The sooner he retires or is impeached the better.
      Rumour is he has been compromised by HAMMER surveillance and is controlled. No idea, of course, but something like that best explains his tortured judgments and haunted look on his face.

  3. I’m confused. It seems rather unfair to only tax people who don’t have health care insurance or choose not to purchase it. This argument that it’s a tax isn’t right because it’s not being applied equally & only based on how a person spends their income. Sounds more like an unpaid sales tax.

    1. Turley! How does this stand up to the authors of the law including Kagan previously saying on the record that the individual mandate was written specifically to be non severable? Sounds like Roberts is weaseling out of being hoisted on his own petard.

      1. There is no means that SCITUS can preserve the ACA without hypocracy and self contradiction.

        The Mandate was supposed to be non-severable – but clearly it is severable.

        SCITUS has gone through horrible machinations to save an incredibly bad law.

  4. Insightful post, Mr. Turley. Thank you.

    How can this compassionate conservative avoid a collision?

    Perhaps Chief Justice Roberts can find the zero mandate unconstitutional solely because there is now nothing left to construe as a tax. All that remains is a toothless federal mandate and a bare penalty with a risk of stigma. The toothless mandate is a pocketbook injury to government, healthcare providers and the privately insured. The bare penalty with a risk of stigma is injurious to the conscience of uninsured individuals who are willing to contribute their fair share to either an affordable public option (including a catastrophic coverage option) or a national health service predicated on universal healthcare as a human right.

    Something along these lines might allow Chief Justice Roberts to rule the zero mandate unconstitutional and severable, while continuing to hold that a fair minimum healthcare tax is both constitutional and inseverable from the ACA as originally designed.

    Since a flat healthcare tax is arguably unconstitutional, a proportionate or progressive tax probably makes more sense, beginning at say 1.00% of AGI, with deductions for allowable healthcare costs. Everyone pays the tax, but only those with allowable expenses (e.g., private premiums) get the deduction. This is functionally the same as the penalty, without the constitutionality problem (especially if all of the previously uninsured get at least some degree of catastrophic coverage in return for their tax payments).

    If Congress wants to keep the ACA, SCOTUS should order Congress to fix the minimum tax mandate, not zero it out.

  5. Why does some prescription bottle of ten pills cost a hundred dollars in the u.s. and four dollars (the equivalent in Euros) in France?
    It Medical Monopoly Capitalism. Doctors, clinics, hospitals, drug companies all make fortunes while the consumers go broke. We go broke on just the insurance aspect in addition to the uninsured costs.

    1. I wish more people would talk about how truly horrid the market place insurance is. For years I had the best Blue Cross Blue Shield plan that cost to be roughly 300 to 500 for a family plan that covered everything including dental and vision. Then came Obamacare and I got a letter from Blue Cross Blue Shield stating that my plan was not in line with the new Obamacare so I needed to visit the marketplace and get new insurance.

      Even though the Democrats promised that for a family of four coverage would not be more than $2500 a year and you could keep your doctor and your coverage would be better than you currently had that was a lie! All of it was lies. I lost my dental and vision coverage and now I have the worst insurance I’ve ever had in my entire life. Be honest I wouldn’t even called insurance I call it a card in my wallet. During the ACB hearings I sat speechless as the DM ‘s trolled on about the possibility of people losing such great coverage and all the wonderful things that covered and I feel like I’m living in an alternate reality because that’s not the insurance I have.

      Every time you have a life change it starts over and it goes up, and you lose other coverage …..something gets worse. For example, if you have a child that gets married or you have a child that starts college or your income goes up or down …..every one of those is a life change or you move that’s a life change too and your coverage starts over with a new plan whenever that life change occurs. if you don’t have any life changes in a year it goes up anyway and you have a new plan every open enrollment. Which happens every October. The insurance has gone up 10 times the cost and the crazy thing is I’ve been lucky enough to barely use it outside of annual check ups and the occasional flu bronchitis cold etc. I’ve heard from friends that also have it and hate it, But if you have a chronic illness such as diabetes or something like that the coverage is even more expensive and it’s gone up sometimes as much as 20 times what they were paying eight years ago. I don’t know anyone that has it that likes it. All I can think is that people must be referring to the Medicaid portion of it the free insurance that was expanded for some maybe that’s wonderful and if it is I’m glad for them but the paid insurance, in my opinion, Is a horrible fraud that was forced upon American people!

    2. The reason why meds cost more here than in Europe is b/c other nations pass laws controlling prices. This does not allow companies to make their money back after spending hundreds of millions of dollars to get one drug on the market. This means that if they don’t make their money back, they will not come up with new drugs in the future.

      Remember, artificially low prices create artificial scarcity. This is one of the reasons why the UK, for example, has awful medical services. Other countries are hurting their citizens and hurting us. If the day comes when the US sets price controls, that will be when new drug research screeches to a halt.

    3. The problems you described are the consequences of bad laws.

      An actual free market means I can buy any product that I can pay for, from any person offering it, at any price that I can negotiate.

      If a drug costs 1/10 as much in europe, in a free market i would be able to buy it in europe if I want.

      But that is illegal – deliberately. Not to protect our health, but to prevent free markets from working.

      You can not blame free markets for problems caused by bad laws.

      Just about any sane economist – and ayone with a clue about the real world would be able to tell you that if you eliminate drug re-importation laws that the cost of every drug will be close to the same throughout the world.

  6. If the mandate was a tax, then it would have been applied to everyone. It would be listed on your taxes similarly as a social security tax. And then everyone would have some low quality monstrosity of national health insurance dreamed up by bureaucrats. Basically, imagine what the DMV could come up with the only insurance policy every American would be allowed to have.

    The best health insurance, or better yet, healthcare, solutions would be bipartisan, and offer choices to Americans.

    This is what I think might work:

    Make all insurance individual policies. No more employer policies. Then, it’s none of your employer’s beeswax what benefits you want, and you won’t lose your insurance if you change or lose your job. Minimum coverage should be catastrophic. Other than that, let the market decide what choices consumers will have. Bring back copays and coinsurance. After all, they were developed to bring down the cost of premiums and deductibles.

    If you financially qualify, or if you lose your job, the government should provide a digital voucher that will pay a set amount. That way, if you fall on hard times, you still have the same high quality policy you did when you were working.

    Here is another question. Why do we need provider networks? Is it because they have negotiated rates? Why don’t insurance companies produce a list of what they will pay for each service, and then you can go to any licensed doctor in good standing? Then that doctor needs to provide a list of the cost of each and every service, much like a mechanic has to produce an accurate estimate. If the charge is over what your insurance pays, you will know in advance. If you agree to see that doctor, you pay the difference.

    The downside is that this might create an incentive for doctors to raise their rates, with patients paying the difference.

    The trouble finding a decent doctor in network for Obamacare plans is a frustration second only to the abominable price of these plans.

    Now, we all want preexisting conditions to be covered. Technically, it’s not “insurance” if a car is already broken. What we really are asking for is help paying medical costs for conditions we already have, and we’re just calling that ‘insurance.” The mandate isn’t constitutional. People would couldn’t afford Obamacare were getting fined for not having it. That’s not fair. However, if preexisting conditions are covered, we have to prevent people from just not having insurance, getting a policy only when they need surgery or other expensive care, and then canceling it right after. That is gaming the system. The mandate was supposed to prevent people from gaming the system. However, there already was at least some effort in place. In order for a preexisting condition to be covered, you had to have continuous coverage, without a gap greater than a set number of days. Maybe we should go back to that. Or perhaps have a one time only exception for young, healthy people who don’t want insurance. The first time they get diagnosed with a health condition, new insurance will cover it, but after that, if they drop their insurance, that condition will only be covered if there is not a gap longer than a set number of days. In any case, if people want conditions covered, then they need to pay into the system. Since the mandate was unfair, then the alternative is this caveat about preexisting conditions. Or perhaps premiums could be higher for people who have tremendous gaps in coverage.

    Sadly, my phone never rings with Washington wondering what to do about healthcare. Wish it would.

    This idea may be a good starting point for both parties to start from.


    who is Ron Klain?


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