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.<\/p>\n
The vote on the individual mandate appears to have been even closer than the 5\/4 vote suggests. Laurence Solum at Legal Theory Blog<\/a> 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.<\/p>\n Amy Howe at Scotusblog<\/a> sums up the individual mandate portion of the decision:<\/p>\n The most important part of the Court\u2019s 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\u2019s 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 \u2013 including forcing people to buy vegetables (with no specific reference to broccoli, however). \u201cThat is not the country\u201d the Founding Fathers envisioned, he proclaimed.<\/p>\n Although the Chief Justice rejected the government\u2019s Commerce Clause argument, he agreed with one of the government\u2019s 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\u2019s the end of the matter; the government cannot do anything else.<\/p>\n Justice Ginsburg (joined by Justices Breyer, Sotomayor, and Kagan) agreed with the Chief Justice\u2019s bottom line \u2013 that the mandate is constitutional under Congress\u2019s ability to tax \u2013 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.<\/p><\/blockquote>\n Also at Scotusblog, Kevin Russell bottom lines the Medicaid portion of the decision:<\/p>\n 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.<\/p><\/blockquote>\n 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<\/a>, in the long run the less-talked-about Medicaid section of the Court’s ruling may turn out to be more consequential.<\/p>\n 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.)<\/p>\n UPDATE: Jared Bernstein discusses<\/a> what could happen if some right-wing governors choose to turn down the expansion of Medicaid.<\/p>\n …because the law was written assuming that the uninsured poor would be covered by Medicaid, subsidies to purchase health insurance in the exchanges don\u2019t kick in until higher income levels. The poor won\u2019t 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. <\/p>\n It\u2019s 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.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":" 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 … Continue reading