So it happened. In a 5-4 decision Chief Justice John Roberts cast the deciding vote to save Obamacare and likely the legacy of his tenure at the Court.
For those of us watching the development of the law and its challenges, there was no real serious question as to the constitutionality of the Affordable Care Act. Instead, the question was whether or not Roberts would cave to partisanship and render the reputation of the Court into the darkest ages only occupied by the Taney and Lochner eras. That’s because the theories put forth to challenge the act–namely that Congress does not have the authority to regulate commerce to such a degree as to equalize the health insurance marketplace either through its taxing powers or through the commerce and necessary and proper clauses–are the kinds of arguments that make for serious sounding blog posts but not much else.
The heart of the Chief Justice’s opinion sets forth a simple truth that the Democrats should have seized on a year ago: the Affordable Care Act forces no one to do anything. Instead it simply increases the tax liability of those who chose to opt out of the insurance structure. That doesn’t make the mandate a tax per se, just an appropriate use of Congress’ taxing power. Only the most radical of the right wing believes essentially all taxing power is unconstitutional so, when you boil it down, Roberts’ decision and its holding as to the taxing issue falls not so much with the “liberal” wing of the Court as it does with the vast majority of legal scholars.
When the law works best it embraces these simple truths and sets them into policy, and that is precisely what this opinion does. Roberts was clear that he was not endorsing the measure and that, in fact, that was not his job (a lesson Justice Antonin Scalia could use). It was as if those kabuki confirmation hearings returned and Roberts returned to his role as “umpire” and simply decided to call a strike a strike.
So that’s the good news.
The bad news is that there is plenty in the decision to give progressives pause. For starters, a majority of the Court signed onto the “inactivity” argument, determining that Congress did not possess authority under the Commerce Clause to regulate the “inactivity” of not buying health insurance.
More troubling is the fact that a seven-vote coalition including Justices Breyer and Kagan held that the Affordable Care Act’s Medicaid expansion subjected state government’s to an unlawful coercion by conditioning potentially all of their Medicaid funding on participation in the new coverage provisions. That means that the federal government cannot do too good a job incentivizing states to sign on to the health care exchanges and punish those that do not by stripping funding.
Now. the opinion is clear that for the moment this reign on federal power is limited simply to the Affordable Care Act, but it raises a serious question as to why it only would be limited in this context. And it’s a question Roberts’ opinion fails to answer. Is it because the size of the potential monetary penalty is too big that Congress can’t act in this way, or is it because states risk loosing existing Medicaid dollars for failure to participate in a future federal program?
The opinion isn’t clear and, presuming conservative jurists read the opinion to endorse the latter, then the battles over funding Planned Parenthood in Texas, Arizona and Ohio, for example, will look like small incursions compared to the assaults conservatives will launch on federal public policy initiatives. But for now let’s celebrate this win–obviously for the millions who benefit under Obamacare, but also for the fact that there’s hope with the Court after all.
Photo from LaDawna via flickr.