Still not much time for posting, but I do want to point out that — much to my surprise — the Supreme Court has upheld the Affordable Care Act, with Roberts voting with the four relatively liberal Justices, and Kennedy voting to overturn it entirely.
The vote on the individual mandate appears to have been even closer than the 5/4 vote suggests. Laurence Solum at Legal Theory Blog points out that Scalia’s dissent appears to have been written as a majority opinion, and then edited to make it into a minority opinion. (Most strikingly, Scalia repeatedly refers to Ginsberg’s concurring opinion as “the dissent.”) What seems most likely is that Roberts switched sides on the question of considering the individual mandate a tax. I really look forward to the tell-all book ten or twenty years from now.
Amy Howe at Scotusblog sums up the individual mandate portion of the decision:
The most important part of the Court’s opinion on the mandate came from the Chief Justice, John Roberts. He acknowledged that Congress has a broad power under the Commerce Clause, but he emphasized that Congress’s power to regulate commerce assumes that there is commercial activity to regulate. In his view, the mandate creates activity, rather than regulating it. If the Court were to interpret the Commerce Clause the way that the government does, he contended, it would allow Congress to regulate all kinds of new things – including forcing people to buy vegetables (with no specific reference to broccoli, however). “That is not the country” the Founding Fathers envisioned, he proclaimed.
Although the Chief Justice rejected the government’s Commerce Clause argument, he agreed with one of the government’s alternative arguments: the mandate imposes a tax on people who do not buy health insurance, and that tax is something that Congress can impose using its constitutional taxing power. He acknowledged that the mandate (and its accompanying penalty) is primarily intended to get people to buy insurance, rather than to raise money, but it is, he explained, still a tax. If someone who does not want to buy health insurance is willing to pay the tax, that’s the end of the matter; the government cannot do anything else.
Justice Ginsburg (joined by Justices Breyer, Sotomayor, and Kagan) agreed with the Chief Justice’s bottom line – that the mandate is constitutional under Congress’s ability to tax – even while disagreeing with his Commerce Clause conclusion; those four Justices would have held that Congress could use its power to regulate commerce to pass the mandate.
Also at Scotusblog, Kevin Russell bottom lines the Medicaid portion of the decision:
The bottom line is that: (1) Congress acted constitutionally in offering states funds to expand coverage to millions of new individuals; (2) So states can agree to expand coverage in exchange for those new funds; (3) If the state accepts the expansion funds, it must obey by the new rules and expand coverage; (4) but a state can refuse to participate in the expansion without losing all of its Medicaid funds; instead the state will have the option of continue the its current, unexpanded plan as is.
The majority of Russell’s post is concerned with explaining exactly who voted for what portion of the Court’s position on Medicaid, which is just fabulously complicated. But, as Russell points out in another post, in the long run the less-talked-about Medicaid section of the Court’s ruling may turn out to be more consequential.
On the whole, I am happy. The ACA, imperfect as it is, is a significant step towards universal coverage, and I think about as good a law as could possibly be passed through Congress during this administration. (It is also likely to benefit me personally.)
UPDATE: Jared Bernstein discusses what could happen if some right-wing governors choose to turn down the expansion of Medicaid.
…because the law was written assuming that the uninsured poor would be covered by Medicaid, subsidies to purchase health insurance in the exchanges don’t kick in until higher income levels. The poor won’t have to pay the tax penalty formerly known as the mandate because of a hardship exemption in the law, but neither will they get the subsidy until their incomes go up enough.
It’s a very weird reversal of the usual means-test for government benefits. Typically, as your income rises you become ineligible for benefits. Here, you become eligible.
Here is the part that I don’t quite follow:
If it is not to raise money, in what way is it a tax? A negative incentive? I’m trying to follow the reasoning.
I have said this elsewhere – I would rather just pay my usual taxes and have them go toward a universal health care system. That seems the most direct and painless approach.
Follow up. John Cole cites this TPM interview with former solicitor Dellinger to support his theory that Roberts was more concerned with his legacy and grasped the tax argument as a life line. Dellinger’s take on Roberts and Kennedy’s line of questioning on the tax penalty issue:
Heh. I do.
There are lots of taxes (and tax breaks) which are intended to provide incentives, rather than just raise funds. For example, the tax on cigarettes is meant to discourage smoking, not just raise money.
According to the Supreme Court, the individual mandate is a tax because you pay it as part of filing your tax return, and the money is collected by the IRS.
Me, too, but there was no way of getting that through congress.
Of course there was a way to get it through Congress. Haven’t you heard of unicorns? They are magic!
I actually agree with Roberts, rather than the concurring opinions, but then I’m kind of a fuddy-duddy about overuse of the Commerce Clause.
I agree with Roberts as well. (Alert the media!)
It’s clearly a permissible use of the taxing authority, which is very open-ended. Congress can pass just about any darn tax they want to. The balancing theory (and it’s a solid one) is that public awareness of and dislike for taxation is so significant that it serves as a check on the Congressional power without needing a lot of judicial oversight to prevent overreach. Note that the ACA’s sponsors and supporters were absolute in their denials that it really was a tax, because it was not sellable as a tax. That’s a dodge that isn’t likely to work again.
I was a little surprised that those denials received such short shrift; I expected a bit more discussion of it from the Court of the difference between intention and actual legislative language. But the legislative language was quite clear so that, presumably, was good enough.
Also, Robert, it’s not like there were black-bag operatives going around silencing ACA opponents and commentators who said that in fact it DID impose a tax. “Self-serving spin” is not a reason to invalidate a law.
@6:
Let’s emphasize that term “absolute”. President Obama, Speaker Pelosi and Sen. Reid all were specific and insistent when they were trying to persuade the public and the Congress (especially the Senate) that the individual mandate was not a tax.
Of course, Obama came out against the individual mandate when he campaigned. Then, once elected, he switched his position. Perhaps it “evolved”. Perhaps he simply lied.
Then, when it came time to defend the bill, he put forward 3 justifications. The first two were in accord with what he had told the American public and Congress; that Congress had the power under the Commerce Clause and the Necessary and Proper Clause. The third was in direct contradiction to what he had told us when he was trying to sell it; that it was tax. The Supreme Court rejected his first two positions that he had told the truth about, and upheld the one position that he had lied about.
So, President Obama won. He also demonstrated that he’s a lying hypocrite. That doesn’t surprise me, of course. But what I’d like to know from the rest of you is this; do you think the ends justify the means? Does it bother you at all?
I’m super glad about this. Unlike maybe everyone else in the country, I’m actually really happy about the system set up by the ACA. The countries with the best health care in the world (Switzerland, Taiwan, the Netherlands) use a similarly constructed mandated private insurance system (with severe market constraints including outright profit-limitation). I hope that, instead of trying to push towards a state-run system, we will push towards a more humane version of the ACA (closing the medicaid hole, mandating lower and lower co-pays, etc.)
I also think that the commerce clause dickering is absurd, and am amazed not only that half of the SC seems to outright despise judicial precedent, but that they are considered somehow “conservative” because of that. Precedent is the basis of Anglo-Saxon law since time immemorial. Within the context of our law and society, being opposed to it is perhaps the most radical political position possible.
yrs–
–Ben
Ben –
Dred Scott?
Robert:
Precedent can (and should be) sometimes overturned. Scalia, though, is pretty hostile to the idea of precedent itself. That’s … pretty darn radical.
It’s possible to have a judicial system sans precedent that works just fine (the French-derived systems used by much of the world don’t have binding judicial precedent.) But to change the way our legal system works unilaterally, as a judge, is absolutely nuts.
yrs–
–Ben
Ron, it doesn’t bother me to be on the morally impure lying hypocrite’s side, as opposed to being on the side of the truthful, honorable people who make claims about “death panels” and the like.
It’s always been the case that there are ugly sides to legislative sausage-making, and you’re fooling yourself if you think GOP sausage-makers are any better.
It does bother me that the system seems to reward stupidity and lying, on both sides.
The Democrats should have been honest, from the start, that the bill includes some modest taxes (and the penalty for not buying health insurance is quite modest). But on the whole, I don’t feel anyone was deceived. The facts about how the individual mandate works were EXTREMELY widely reported, and anyone who paid any attention at all knew about the penalty for not getting insurance.
It also bothers me that Obama. along with many democrats, seems to have accepted the Republican framing that “tax” is a dirty word. It’s a childish “free lunch” framing, and I think it actually underestimates the maturity of American voters. In general, I don’t think Americans are incapable of understanding that sometimes services cost money, and that can be worth it. In this specific case, I don’t think Americans would have been incapable of understanding a “there are some taxes here, on those who choose not to get health insurance, so that they don’t freeload on everyone else” framing.
Robert,
You’ll have to remind me when Dred Scott was overturned by the SC in violation of precedent. I thought Dred Scott was made null by a series of constitutional amendments after a civil war. Maybe you should use Plessy v. Ferguson and Brown v. Board of Education instead, as that is actually a case of an evil decision that was eventually overturned? Or Lawrence v. Texas, as that is (like Scalia (and Kennedy)’s dissent here) a case of a judge over-ruling their own previous decision. On the other hand, in that case, Kennedy had the guts to write: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”
Picky, picky.
Ron, it doesn’t bother me to be on the morally impure lying hypocrite’s side,
This guy loudly proclaimed that he would have the most open and ethical administration in history. And people bought it. Just like they do in Chicago. Much is made in the media of GOP or conservative politicians when they are found in personal violation of the principles they publically espouse. But this will pass without comment in the MSM.
as opposed to being on the side of the truthful, honorable people who make claims about “death panels” and the like.
Show me a government-run national health-care system that does not have a panel that decides to withhold health care on the basis that the intended recipient is too old or some other qualification and that the health care dollars are better spent elsewhere. People will die because of those decisions. “Death panels” may be hyperbole, but the concept is there.
you’re fooling yourself if you think GOP sausage-makers are any better.
On what basis do you suppose that I do? When have I ever claimed different?
And so what? How does that excuse what he did? Isn’t “they do it too” an argument that you always shoot down when someone uses it in the context of racism or other discrimination?
It seems to me that you’re making an “the ends justify the means” argument.
Ben:
I also think that the commerce clause dickering is absurd
You think that the people who wrote the Constitution intended that the Federal government be able to regulate all commerce in the country regardless of it’s scope?
Kennesaw, Georgia and Lubbock, Texas have laws on the books that require every household to possess a firearm. Lubbock fines you if you don’t. Seems to me that under this decision these laws would pass Constitutional muster.
“You think that the people who wrote the Constitution intended that the Federal government be able to regulate all commerce in the country regardless of it’s scope?”
All interstate commerce regardless of scope, yes… because that’s what it says. If businesses have now grown so big that over 95% of business falls under the ‘interstate’ category, they have only themselves to blame.
Remember, corporations only exist because of government in the first place, and government has the power to cancel out their existence at will.
Ron: I don’t think we’re accountable to the intent of 18th century aristos. We’re definitely not accountable to a modern right-wing interpretation of the intent of 18th century aristos.
Further — and more importantly — those 18th century aristos were quite explicit that future generations should not be held to their intent at signing. They didn’t even hold themselves to their intent at signing! The idea that law should be read for intent is absurd.
If we read the laws passed by the first generations of US politicians as a read on their constitutional intent, they considered an insurance requirement not only constitutional, but wise. If we read their personal writings, you see that their primary concern is not that future generations will change their work — which they correctly see as imperfect — but that future generations will venerate them as demigods.
We should not be beholden to this, of course. Each generation is going to reinterpret the constitution anew (we can’t help it! It’s the way that text works.) But the Roberts read on the commerce clause is considerably more restrictive than both 20th and 18th century readings.
yrs–
–Ben
P.S. “Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose that what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it… I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the circumstances, institutions must advance also, and keep pace with the times…”
Funny you would say that….
If I need to post more on this I will, but right now I am pressed for time. For the record Dred Scot was a judicial decision that stood in direct contradiction with every act in U.S history in regards to slavery and the rights of African-Americans.
The Framers anticipated that the Federal government would regulate the inter-state commerce and the states would regulate the intra-state commerce. Back then there was more intra to inter, now it is all inter with no intra. The formula did not change, the reality did.
I certainly agree that there are many campaign promises that Obama has broken — some of which I’ve angrily posted about. But I can’t get too angry about the “no tax increases for those below $250000” pledge being broken, because I thought it was a ridiculous and childish promise to make (as it was for Bush sr).
1) This isn’t Obama being “in personal violation” of principles, by which I assume you mean when an anti-gay GOP politician turns out to be gay or something like that. This is Obama being a political hypocrite on policy matters, which I assure you that politicians both right and left get a pass on every day.
2) When Democrats are involved in “personal violations,” they don’t get a pass from the MSM. (Did you never hear about Monica? Spitzer? Weiner?)
3) The MSM has frequently pointed out the Obama administration trying to have it both ways on the “is it a tax” question. From a NYTimes article, months ago: “In other words, the Justice Department is essentially arguing that the penalty is not a tax, except when the government says it is one.” This week, of course, claims like that are all over the MSM, both direct criticisms and through quoted GOP criticisms.
* * *
In other words, you’re outraged by lies and hypocrisy coming from Obama — but when the GOP lies, that’s just “hyperbole.”
1) The Affordable Care Act did not enact any such panels. If you’re claiming it did, then please link me to the exact passage in the Affordable Care Act legislation which enacts the system you describe.
2) Of course, you’re softballing about what the “death panels” claim actually was. Let’s review what Palin claimed when she invented the “death panels” term:
Can you please link me to the exact passage in the Affordable Care Act legislation which enacts the system Ms. Palin described? Of course you can’t. Because Palin, when she essentially accused Obama of supporting Nazi policies of exterminating disabled babies, was lying. But that lie, you defend as mere “hyperbole.”
Is lying wrong, or is it only wrong when Obama does it?
3. All health care systems — not just government run health care systems, as you claim, but ALL systems — have some form of rationing care. In the
system you supportstatus quo (which perhaps you don’t support), rich people get all the care they need and poor people are sometimes left to die in agony. That rationing is made by a combination of the marketplace and private insurance companies.The exact same private rationing method will be used if Obamacare is fully enacted, except that the rationing will be somewhat more constrained, because many more poor people will have private insurance, and because insurance companies will not be able to legally refuse people who have pre-existing conditions.
However, since the rationing works with the same mechanism both pre- and post- Obamacare — in both cases, it’s done mainly by private insurance companies — it’s dishonest to say or imply that Obamacare has created the rationing. Obamacare limits the rationing, but it does not create it.
Look at how you’re acting on this thread. Obama lies about the ACA are morally outragious, but GOP lies about the ACA are excused.
If you read the rest of my comment, I don’t think I did excuse Obama. On the contrary, I said he was wrong to not call it a tax in the first place.
But in the context of a political system in which both sides lie quite a lot, often in much more venal ways, I don’t find this particular lie to be especially venal.
I don’t understand how you can say, in effect, that I should be given pause by the fact that the ACA’s supporters weren’t perfectly honest, when you yourself don’t seem to be given pause by the fact that the ACA’s opponents weren’t perfectly honest.
To be honest, I find Obama’s two-faced claims about “is it a tax” much LESS venal than most political lies (including other lies Obama himself has told), because no one was deceived by it. Call it a tax or call it a penalty; either way, anyone who paid even a thimble’s worth of attention to the ACA understood that the individual mandate meant that they’d be paying more money to the government if they chose not to get health insurance. The substance of the policy was in no way kept secret, and (to my knowledge) no Democrat ever claimed that the Individual Mandate didn’t exist or didn’t involve being ordered to pay money to the government.
To be honest, I find Obama’s two-faced claims about “is it a tax” much LESS venal than most political lies (including other lies Obama himself has told), because no one was deceived by it. Call it a tax or call it a penalty; either way, anyone who paid even a thimble’s worth of attention to the ACA understood that the individual mandate meant that they’d be paying more money to the government if they chose not to get health insurance. The substance of the policy was in no way kept secret, and (to my knowledge) no Democrat ever claimed that the Individual Mandate didn’t exist or didn’t involve being ordered to pay money to the government.
This is pretty much how I feel about it. The entire argument is semantic.
Look at how you’re acting on this thread. Obama lies about the ACA are morally outragious, but GOP lies about the ACA are excused.
RonF continued to make birther arguments after those same arguments were refuted on a previous thread. I’m thinking that, yes, the problem is not the ACA but who took credit for it.
Anyone who gets their shorts in a knot about ‘death panels’ either has never really been sick, or is stick-ignorant. Private insurers have ‘death panels’ — by which we mean, of course, panels of bureaucrats who decide which illnesses will and won’t be covered, sometimes changing their mind when “will” becomes much more expensive than “won’t”.
Didn’t the ACA prohibit the lifetime caps on payments that insurance companies used to have, after which they wouldn’t pay for any additional treatment, no matter how necessary?
Why yes, it did.
Extra, extra funny you should say that. From the 2nd Militia Act of 1792:
State laws to that effect are in even better shape, since state’s maintain residual power to act, so unless their is a due process clause violation (something I venture no opinion on), there’s no problem at all.