Well, the one thing we can be sure of in the wake of today’s blockbuster decision from the Supreme Court is that Chief Justice John Roberts is an avid BMG reader. 😉 As you have probably already heard, the Court by a 5-4 vote upheld the health care law on the ground that the “individual mandate” isn’t really a mandate, but rather is a tax incentive, much like the one that gives you a tax credit if you replace the windows in your house. That’s exactly the argument that I suggested should decide the case a couple of days after the oral arguments.
The Court also held that Congress could not condition states’ participation in the Medicaid program on agreeing to go along with the massive Medicaid expansion contemplated by the law. As drafted, the law said that if a state refused to go along with the expansion, which is funded 90% by the federal government, the feds could defund the state’s Medicaid program entirely. The Court thought that went too far, and effectively rewrote the statute by saying that the feds cannot withhold existing Medicaid funding based on a state’s refusal to go along with the expansion.
You can read the entire set of opinions (there are four: Roberts (the main opinion); Ginsburg (concurring in part and dissenting in part); a joint dissent by Scalia, Kennedy, Thomas, and Alito; and a very short separate dissent by Thomas) as a PDF at this link, or in HTML format at this link. I haven’t even made it all the way through them, much less digested them, but here are some key points that jumped out at me.
- The lineup is fascinating and totally unexpected. After the arguments, a lot of people (myself included) thought that the Court would line up either 5-4 against the law, or 6-3 in favor of it (with the Chief and Kennedy joining the “liberals”). There was a smaller chance, thought many observers, that the decision would be 5-4 in favor with Kennedy joining the “liberal” group of Ginsburg, Breyer, Sotomayor, and Kagan. Almost nobody thought that Kennedy would join the conservatives while Chief Justice Roberts went along with the liberals.
- Also very interesting in terms of lineup is what happened on Medicaid. That part of the decision was 7-2, with Justices Breyer and Kagan joining the five more conservative Justices in ruling that Congress went too far in trying to coerce states into going along with the Medicaid expansion; only Justices Ginsburg and Sotomayor would have upheld it. What’s really interesting here is that Justice Kagan was President Obama’s Solicitor General before she went onto the Court, so we have a former very high-ranking Obama administration official agreeing that that part of the law was unconstitutional. Justice Breyer’s vote is also interesting, in that he is one of the Justices generally thought to be most deferential to Congress’s power in the commercial realm, and also, he started his career as an aide to Senator Ted Kennedy, who presumably would have been in favor of the Medicaid expansion.
- The dissent is not authored by one Justice and then “joined” others, as is the usual practice. Instead, it was issued as a joint opinion of “Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting” (the Justices are named in order of seniority). That is an unusual move, and it’s not one that I can recall seeing before on a dissenting opinion. By way of comparison, the lead opinion in the famous Casey v. Planned Parenthood case was published as a joint effort by Justices O’Connor, Kennedy, and Souter – but that was an opinion that announced the judgment of the Court. If anyone knows of a jointly-authored dissent, please let me know.
- The dissenters would have held the mandate unconstitutional, and then would have declared the entire act – every single part of it – invalid because, in their view, the mandate could not be severed from the rest of the act’s provisions. So it’s remarkable how much impact Chief Justice Roberts’ decision to join the liberals on the government’s “backup” argument had – though it’s not certain that, had Roberts agreed that the law was unconstitutional, he would also have agreed that the law was entirely non-severable and had to be struck down in its entirety.
- It’s really hard to digest this opinion in a short period of time, as was painfully evidenced this morning when both CNN and Fox News initially reported that the mandate had been declared unconstitutional. This led to much hilarity on Twitter, including this droll comment: “Supreme Court coverage divided 2-1, AP and SCOTUSBlog write majority opinion, CNN dissents.” Heh. Or, as I tweeted (to the evident delight of the many who retweeted and republished me), “BREAKING:
#SCOTUS decision too complex to summarize in 140 characters.”
Obviously, most of the discussion today is about the decision’s impact (or lack of same) on the health care law, and how it will affect the presidential election. But this is a hugely important decision that could have a major impact well beyond health care, for two reasons.
- Although the mandate was upheld, five Justices – Chief Justice Roberts plus the four dissenters – believe that Congress does not have the power under the Commerce Clause to require people to purchase health insurance. The mandate survived only because it’s not really a mandate at all; rather, it’s a tax. The outer boundaries of the Commerce Clause have long been a contentious subject among constitutional scholars as well as politicians, because those boundaries define the extent of what Congress can do. This is the first time that a piece of economic legislation has been held to “go too far” under the Commerce Clause, and it’s noteworthy that, on that topic, Roberts was fully on board with the argument that “regulating” commerce does not include forcing people to engage in a commercial transaction. He totally rejected the government’s argument that “not buying health insurance” is effectively a commercial act because of the nature of the health care market. Here’s what he had to say about that “economic” argument:
To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers.
No respect for that argument at all, in other words. Also, Roberts bought the “broccoli” argument:
Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.
The ramifications of this aspect of today’s decision will have to await future cases, but it’s most definitely one to watch.
- Similarly, it’s quite possible that the 7-2 decision rejecting Congress’s conditioning all Medicaid funding on going along with the act’s expansion will have wider ramifications. Basically, the Court concluded that the condition went too far. I need to study that part of the opinion in more detail before I have a better sense of what it really means, but it certainly could limit Congress’s ability to condition funding to the states in other contexts.
To be continued. In the meantime, I’ll be on Greater Boston (WGBH-TV channel 2) tonight at 7 pm to discuss today’s events. I was on Emily Rooney’s radio show earlier, along with Kerry Healey and a physician from Tufts. You can listen here.