In writing for the majority, Chief Justice John Roberts is careful to note that upholding the act is not the same as endorsing it.
The Supreme Court today upheld the constitutionality of the Affordable Care Act, the signature legislative accomplishment of the Obama Administration in a 5-4 decision, a majority that included conservative Chief Justice John Roberts. This is a big day for the Obama Administration, and for Democrats nationwide. This was the day that the Affordable Care Act—an imperfect law with definite shortcomings, but a good start toward healthcare reform nonetheless—was ratified as the law of the land once and for all.
Since day one Republicans have assaulted the Act as unconstitutional on several grounds, spreading lies and misinformation about the Act in a propaganda campaign to ensure public opinion is squarely against it. Lies such as calling it a “government takeover of healthcare,” or excoriating the “death panels” that the law supposedly contained, or that those who already had insurance through their employer were going to lose it, or railing about the trillions of dollars it will add to the budget deficit.
None of those things are even remotely true. In fact, they’re all demonstrably false, but that hasn’t stopped the right wing from passing it all off as gospel.
In the 2010 midterm election, Republicans swept into power largely on the strength of their propaganda campaign against “Obamacare,” a sweeping piece of reform legislation modeled directly after the healthcare system in Massachusetts. That system, which included the controversial “individual mandate,” was taken directly from the hard right wing Heritage Foundation, who first published the concept in 1993 in response to the Clinton Administration’s attempt at a massive overhaul of the nation’s healthcare system (which, of course, failed).
The individual mandate is the proviso that everyone who didn’t already have health insurance through their employer and can afford to purchase healthcare must do so. Those who cannot afford to purchase insurance would receive government subsidies based on their level of need in order to help them do so. Those who still could not or refused to buy insurance would be levied a fine in the form of a tax to be collected by the IRS (with incredibly weak enforcement provisions, I might add).
Mitt Romney, the Republican presidential nominee (unofficial) and former Governor of Massachusetts, implemented this very system as governor. In 2009 Romney went on “Meet the Press” and specifically endorsed the idea of an individual mandate on a national basis. In 2007, Romney praised the Massachusetts law as “a model for the nation.” In fact, since they helped write the Massachusetts law, former Romney staffers were brought in to consult on the Affordable Care Act.
Upon the ACA’s passage in 2010, it didn’t take long for Republican state Attorneys General—26 of them, to be exact—to file a lawsuit challenging the constitutionality of the law on two primary fronts: That the individual mandate itself is unconstitutional, as is the requirement to expand Medicaid programs or face the loss of federal funding.
Today, albeit by a narrow decision and one that would normally be the subject of much consternation and bring more charges of extreme partisanship upon the Supreme Court, the Republicans were nearly completely rebuffed in their assertions.
With the ruling in 2000’s Bush v. Gore that effectively handed the presidency to George W. Bush, and the highly polarizing Citizens United ruling that opened the floodgates for unlimited corporate cash to be spent wantonly and directly on political campaigns, and with a recent study that found the Court ruled in the Chamber of Commerce’s favor in 68% of the cases where it had an interest in the outcome, Justices are becoming viewed more and more as political actors.
Take Justice Antonin Scalia’s dissent in the Arizona immigration case earlier in the week: Scalia took pen to paper to excoriate President Obama’s decision to allow some illegal immigrants brought to the United States as children to stay, despite the fact that the case before him had absolutely nothing to do with Obama’s executive order. In fact, the executive order was issued long after the case against Arizona’s SB 1070 was heard by the Court. Scalia’s dissent focused on matters not before the court, was entirely political, and completely unbefitting a Supreme Court Justice.
During his 2005 confirmation hearings, Chief Justice John Roberts told the Senate Judiciary Committee that he came “with no agenda,” and that he viewed his job as a Justice of the Supreme Court as that of an umpire, that it was his job “to call balls and strikes and not to pitch or bat.”
With the precedent set by Citizens United and the reaffirmation of it in ruling against Montana’s 1912 state law banning corporate contributions in political campaigns, that promise was highly in doubt. Until today.
In writing for the majority, Roberts said “Members of this court are invested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those judgments are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.” As properly apolitical a statement as there ever was.
In his ruling on “Obamacare,” Roberts held true to his word, saying that it was the Court’s job to seek out a way to find the law constitutional.
This was a rather complex case, and it shows in the ruling of the Court. The Obama Administration argued that the individual mandate was constitutional under the Commerce Clause of the Constitution. In effect, the government argued that when a person declines to purchase health insurance and gets sick, the costs of treating that person get passed on to everyone else in the form of increased healthcare costs, and thus affected interstate commerce, since everyone at one time or other will need health care. In this case, inactivity rather than activity was being legislated against. The Court held, though, that the ACA could not be held constitutional under the Commerce Clause.
“The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to ‘regulate Commerce,’” Roberts wrote, deeming the law unconstitutional if judged strictly by the Commerce Clause.
However, under the government’s power to tax, “the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those refusing to buy that product.”
Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government,means the mandate can be regarded as establishing acondition—not owning health insurance—that triggers atax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance.Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, itmay be within Congress’s constitutional power to tax.
Because the ACA enforced the mandate through the IRS via a “shared responsibility payment” by taxpayers, the individual mandate was thus deemed proper and constitutional under Congress’ authority to levy taxes.
The ACA also required states to expand their Medicaid programs to provide basic coverage to all individuals under the age of 65 whose incomes fell below 133 percent of the federal poverty line. The federal government, in turn, would fund a minimum of 90 percent of the additional costs incurred by the states. Failure to comply with this requirement, according to the ACA, could result in a state losing all of its Medicaid funding.
The Court ruled that the federal government does not have the power to require states to “govern according to Congress’ instructions.” The Court was led to “scrutinize Spending Clause legislation to ensure that Congress is not using financial inducements to exert ‘a power akin to undue influence,’” Roberts wrote. “Congress may use its spending power to create incentives for states to act in accordance with federal policies. But when ‘pressure turns to compulsion,’ the legislation runs contrary to our system of federalism.”
The federal government can still offer funds to expand Medicaid programs, but it cannot threaten to withhold all federal Medicaid funding from states that refuse to accept the terms of expansion spelled out in the ACA, the ruling held. It is my guess that most states will, in fact, take the federal government up on its offer to fund at least 90 percent of the costs incurred by expansion.
The short of it is that this is a victory for health care reform in the United States. “Obamacare” is far from perfect, or even ideal. But it was deemed the best they could do under the circumstances, and is without a doubt a good start. The process of reform is far from over, and this is a necessary first step. And while a public option was not included in this iteration of healthcare reform, there is no reason to think that we might not eventually see one implemented several years down the road. The Affordable Care Act leaves room for that option.
The fact that it was John Roberts joining the liberal wing of the Court in affirming the legality of the ACA is a major blow to Republicans. Roberts is a stalwart conservative and normally reliably among the conservative cabal on the Court, after all, and Anthony Kennedy, who is normally the swing vote in 5-4 cases, voted in dissent. It was widely expected that the Court would either overturn the Affordable Care Act in a 5-4 decision, or affirm it in a 6-3 vote with Roberts and Kennedy both in the majority.
Ordinarily a 5-4 decision would be met with derision; the court would be ostracized for making a strictly political ruling. But with Roberts siding with the majority, that accusation falls flat, and lends the finding additional credibility.
The bottom line is that the affirmation of “Obamacare” means that 30 million people will have access to health care that otherwise would not. And it means that the United States is finally well on its way to completely reforming our healthcare system. The implementation of the Affordable Care Act is merely the beginning stages of that process.
Andy Cohen
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Excellent analysis.
I find it curious that there was never a doubt where the four liberal members of the court would vote; only where Roberts and Kennedy would. Yet, it’s the conservative side that is political? That square peg doesn’t quite fit the round hole.