The most talked-about event last week was, and for weeks to come, will be the Supreme Court’s, or should I say Chief Justice John Robert’s, decision that the Affordable Care Act, aka Obamacare, was constitutional.
Enacted by a Democrat-controlled Congress, then House Speaker Nancy Pelosi said of the 2,700-page law, Congress “[has] to pass the bill so you can find out what’s in it, away from the fog of controversy.” Thanks to the chief justice, we are about to find out. The ACA has already spawned over 12,000 pages of regulations.
It was widely expected, after oral argument, that the court’s conservative wing would be joined by swing vote Justice Anthony Kennedy, in declaring the law unconstitutional in whole or in part. Indeed, Kennedy voted that way.
To the surprise of most court watchers, Roberts became the swing vote, siding with the court’s liberal bloc, rendering the decision declaring the ACA constitutional.
Robert’s decision had three major components. First, he held that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause.
Second, Roberts held that the Medicaid expansion violates the Constitution by threatening states with the loss of their existing Medicaid funding if they decline to comply with the expansion.
Third, Roberts held that the individual mandate must be construed as imposing a tax on those who do not have health insurance. He thus upheld the mandate as within Congress’s power under the Taxing Clause.
Going into oral argument, the congressional Democratic leadership, supported by liberal constitutional law scholars, had no doubt that the ACA was constitutional in its entirety. Only after the three-day oral argument did Act proponents begin to believe it was doomed in whole or part.
The linchpin of the ACA is the individual mandate. Designated persons are required to have health insurance. If they elect not to, the individual would be subject to a penalty of the higher of a fixed dollar amount or a designated percentage of the individual’s adjusted gross income.
Earlier, the Administration argued that the penalty was not a tax. Even President Obama, in a Sept. 2009 interview with ABC’s George Stephanopoulos, insisted that the penalty was not a tax. However, as the administration became less certain about ACA’s viability under the Commerce Clause, it argued before the Supreme Court as an afterthought that, as an alternative, the penalty be deemed a tax. Roberts latched onto this argument to save the ACA.
Having successfully argued the point, mindful of election season and Obama’s promise not to raise taxes on the middle class, the administration contended on July 1 that the penalty is not a tax increase. In an interview with Stephanopoulos, Jacob Lew, White House chief of staff, rejected the “tax” label, saying, “The court found it constitutional. Frankly, what you call it is not the issue.”
But, designating the mandate a tax determined the law’s constitutionality.
In The Washington Post, Charles Krauthammer called Robert’s decision “one of the great constitutional finesses of all time.” What did this finesse accomplish?
In general, it seems to have broadened the taxing power of the federal government to coerce behavior. If the government wants you to do something you do not want to do, you may be able to opt out by paying a tax, er, penalty.
Despite administration protestations, there are 20 hidden new taxes in this law, including seven to be levied on all citizens regardless of income. Moreover, Stephen Moore, Wall Street Journal senior economics writer, says that nearly 75 percent of ACA costs will fall on the backs of those Americans making less than $120,000 a year.
While some conservatives likened Roberts to Anakin Skywalker (the Star Wars baddie who went over to Dark Side), his decision has some favorable consequences for conservative jurisprudence.
Foremost, Roberts reined in the ever-expanding use of the Commerce Clause, halting a 70-year trend of justifying federal intrusion into individual and states’ rights. There is now a Supreme Court opinion that the federal government may not use the Commerce Clause to impose on Americans the obligation to buy anything we do not want. There is no such thing as unlimited police power.
Second, Robert breathed new vitality into the 10th Amendment by ruling that the federal government could not penalize states that did not follow its dictates by turning down federal inducements. The federal government is one of enumerated powers, the remainder being reserved to the states or the people. States are not federal administrative departments.
Lastly, Roberts redefined the rules of judicial engagement. In doing so, he reminded the country that legislation is a political process and, therefore, the judiciary should not assume a portion of the legislative function. You change the course of the Executive and the Legislative branches through the political process, not by judicial activism. Elections do have consequences.