I'm still winding my way through the 193-page opinions by the Supreme Court, but as I read, one theme emerges: Chief Justice Roberts wanted to uphold the law while preserving all of the conservative 'states-rights' themes we've heard over the past
June 28, 2012

I'm still winding my way through the 193-page opinions by the Supreme Court, but as I read, one theme emerges: Chief Justice Roberts wanted to uphold the law while preserving all of the conservative 'states-rights' themes we've heard over the past three years.

The Mandate

Roberts wrote that the mandate is not subject to the Anti-Injunction Act that would bar the court from ruling on the mandate as a tax not yet in effect. Turning to the next issue, he wrote that the mandate would be unconstitutional under the Commerce Clause, but would still stand as a tax, and therefore the ACA is constitutional.

This explains why the "broccoli" argument survived. Here's the key quote:

The Government argues that the individual mandate can be sustained as a sort of exception to this rule because health insurance is a unique product. According to the Government, upholding the individual mandate would not justify mandatory purchases of items such as cars or broccoli because, as the Government puts it, "[h]ealth insurance is not purchased for its own sake like a car or broccoli; it is ameans of financing health-care consumption and covering universal risks." But cars and broccoli are no more purchased for their "own sake" than health insurance. They are purchased to cover the need for transportation and food.

The unspoken sentence: health insurance is purchased to cover the need to pay for health care. Still, the court did manage to come to the right place in the road by characterizing the mandate as a tax which would fall under the Congress' Constitutional powers, agreeing that levying taxes to influence conduct are nothing new.

Medicaid Expansion

The Medicaid ruling is more troubling. Chief Justice Roberts writes:

The Medicaid expansion, however, accomplishes a shift in kind, not merely degree...Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health coverage."

He goes on to say that nothing stops Congress from offering a carrot in the form of better Medicaid subsidies to states, but Congress may not use those funds as a stick to withhold all Medicaid funds. This ruling is troubling because at least 26 Republican governors have resolved not to implement the Affordable Care Act, and will turn away the expanded Federal grants. That leaves it to Congress to figure out how exactly to handle access for people who will not qualify under Medicaid in states that turn away the expansion.

That is indeed troubling, and something that should motivate a push toward Medicare expansion. The problem for states is more troubling, however, because they are still required to implement the Medicaid expansion to comply with the law. It's unclear what sanctions they will suffer if they don't. Virginia Governor Bob McDonnell admitted earlier on MSNBC that he would follow the law, assuming it still existed in 2013. That tells me that they expect to expand Medicaid coverage, and it would logically follow that they would also accept the federal dollars to do so.

I am not sure exactly how this will play out, but it is definitely not a good outcome for poor people. Further, it may have set a limiting principle for how Congress may interact with the states. Via SCOTUSblog:

While the Court’s upholding the mandate is deservedly taking front stage in the media coverage, the Court’s decision to strike down a part of the Medicaid expansion may ultimately have broader jurisdprudential consequence. That, at least, will be a subject of debate among lawyers and academics in the days and weeks to come. This is the first time (as far as I know) that the Court has actually found a Spending Clause condition unconstitutionally coercive. Whether it establishes principles that make many other programs vulnerable is a question that will require further analysis and debate.


I'll just let the dissent's conclusion speak for itself, authored by Justice Kennedy:

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections -- notably, the restraints imposed by federalism and separation of powers -- are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today's decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

I want everyone to remember those words when there is a challenge to Roe v. Wade or the birth control coverage provisions in the courts. Liberty and fragmented powers, it appears, would be a value to this conservative court until it applies to women.

Justice Ginsburg, who is forever my heroine, stuck the knife into Mitt Romney's side, as Mother Jones notes:

By requiring most residents to obtain insurance, see Mass. Gen. Laws, ch. 111M, §2 (West 2011), the Commonwealth ensured that insurers would not be left with only the sick as customers. As a result, federal lawmakers observed, Massachusetts succeeded where other States had failed. See Brief for Commonwealth of Massachusetts as Amicus Curiae in No. 11–398, p. 3 (not­ing that the Commonwealth’s reforms reduced the number of uninsured residents to less than 2%, the lowest rate in the Nation, and cut the amount of uncompensated care by a third); 42 U. S. C. §18091(2)(D) (2006 ed., Supp. IV) (noting the success of Massachusetts’ reforms). In cou­pling the minimum coverage provision with guaranteed­ issue and community-rating prescriptions, Congress followed Massachusetts' lead.

Mitt Romney looked like an idiot standing up and shouting out to repeal this, especially when he crafted the solution to his own state's problems. His puffery about "acting to repeal Obamacare" is just another one of his lies that he'll tell to assuage his angry base.

The bottom line here is that Chief Justice Roberts walked through a circuitous and sometimes twisted route to arrive at a mostly-right conclusion. The Medicaid expansion was the tradeoff for upholding the rest of the law, and it was a crummy trade, but states will have to decide whether they're comfortable with the higher insurance rates on everyone in the state, higher premiums for those insured, and higher costs imposed on providers in their state or whether they will accept the Medicaid funds.

My bet is that these conservative governors will opt out with lots of noise and fury, and then turn around and opt in quietly, when the spotlight is off. Still, it's troubling that Medicaid was the sacrificial lamb, and it certainly gives incentive for progressives to continue to fight for universal single-payer health care.

Overall, the guiding principle that Roberts upheld was this: Health care is a right. Our job now is to keep hammering that principle home, shaming anyone who would make the political decision to withhold that right from poor people rather than take funds from the federal government.

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