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So it’s John Roberts, not Anthony Kennedy, who joins the Court’s “liberal wing” in upholding virtually all of the Affordable Care Act, and who writes the majority opinion. Not having read the opinion, I’m doing some guessing here, but I suspect it was Roberts who insisted on the rationalization of the individual mandate as a tax, which obviated any serious review of the Commerce Clause issues supposedly at the heart of the case.
The Medicaid restrictions in the decision don’t strike me as that significant, since they simply hold that the feds can’t cut off all a state’s Medicaid dollars if it refuses to go along with the ACA’s expansion. I was half-convinced as of last night that the Court might uphold the mandate but do something drastic to Medicaid and other federal-state programs.
All in all, and again operating on the basis of what I’m reading at SCOTUSblog, this decision is close to where many people though the Court would come out before oral arguments scrambled expectations.
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Rob on June 28, 2012 10:36 AM:
So, what's the over/under on death threats from Republicans towards Bush-appointed Judge Roberts for forcing all of us to live under the yoke of tyranny?
Lance on June 28, 2012 10:36 AM:
Roberts is feeling the burn of Citizens United. He didn't want to be on the side of an opinion that reads as badly as that one did.
No wonder they kept this until today. NOBODY is really going to be happy with this.
stevio on June 28, 2012 10:36 AM:
Up your poop shoot Scalia...
T2 on June 28, 2012 10:37 AM:
great/unexpected news. Apparently all the Appeals Courts that upheld, and all the constitutional scholars that felt the ACA was good...were correct. And apparently the Obama Administrations questionable move of forcing this decision ahead of the fall elections was, well, very smart on their part. From what I've heard, Obama is something of an expert on the Constitution. Apparently that's correct as well.
Scott K on June 28, 2012 10:38 AM:
I'm disappointed. I was expecting a post titled "Triumph Thursday" or something similar, after your overhyping of "Threnodic Thursday".
pj_in_jesusland on June 28, 2012 10:38 AM:
"The Supreme Court has struck down the individual mandate for health care." -- CNN headline following Supreme Court Announcement
Uh oh. Someone messed up. Even Fox News got it right.
weboy on June 28, 2012 10:39 AM:
The Medicaid ruling is going to turn out to be extremely important, since it allows states to basically refuse to expand their Medicaid programs (which the 26 states suing said, essentially would surely cost far more than what the feds were willing to put into their block grants), while still retaining the Medcaid funding they already get. That means, for instance, that Texas could decide to keep only a very limited Medcaid offering, leaving millions of people at or just above poverty with no real way to get insurance... and then the mandate kicks in. This could be a big, big mess.summary
Lance on June 28, 2012 10:45 AM:
The Medicaid ruling is going to be very important because it means no Federal/State program can be eliminated. Roberts is saying that Congress can't replace one program with another. States have a right to keep getting money under the old (defunct) program.
This means these types of programs are now immortal.
Peter C on June 28, 2012 10:46 AM:
My sense is that Roberts may have wanted to uphold the ACA because he doesn't want to limit Federal power; he'd just prefer to use it for Republican priorities. The commerce clause would have been a dangerous thing to limit since it has been applied very broadly in the past.
That's just a guess, though.
Mimikatz on June 28, 2012 10:48 AM:
So Roberts went with the insurance companies, who wanted the business, not with the Right Wing. What I thought all along, but I did think Kennedy would join him. At least Scalia didn't write another vituperative dissent, but it does seem his nastiness in the AZ case was because he lost Roberts here.
The fact that 5 justices would have invalidated under the commerce power is a bit problematic for future exercises of congressional power to regulate the economy.
T2 on June 28, 2012 10:49 AM:
Conservatives are going berserk. This will be fun to watch.
Mimikatz on June 28, 2012 10:49 AM:
So Roberts went with the insurance companies, who wanted the business, not with the Right Wing. What I thought all along, but I did think Kennedy would join him. At least Scalia didn't write another vituperative dissent, but it does seem his nastiness in the AZ case was because he lost Roberts here.
The fact that 5 justices would have invalidated under the commerce power is a bit problematic for future exercises of congressional power to regulate the economy, or perhaps to deal with climate change.
Crusty the ex-Clown on June 28, 2012 10:50 AM:
Bleh. This just means the new meme will
be "Obama raised your taxes."
Lather, rinse, repeat.
jjm on June 28, 2012 10:51 AM:
I have said that Scalia's rant over the immigration law was either him going bonkers or him venting frustration that the other big decision didn't go his way.
RepublicanPointOfView on June 28, 2012 10:53 AM:
What a bullsh!t decision. Everyone knows that the 'death panels' rightly belong in the corporate boardrooms.
Al on June 28, 2012 10:55 AM:
Impeach John Roberts.
Mimikatz on June 28, 2012 10:57 AM:
Congress can change any federal program. What it can't do is, for example, cut off all highway funds to a state that has too high speed limits on the interstates. It can condition the new money for the expansion, but can't threaten to cut off ALL medicaid if a state declines to participate. Again, the people who will be hurt aren't poor people but lower income. Maybe they will mind, who knows.
The real problem is for the insurance cos who may not get enough younger, healthier people to sign up. Again, we will have an exacerbation of the inequality of care across states.
Neil Bates on June 28, 2012 10:57 AM:
Well here's where this post really belongs:
I'm relieved on practical grounds and basically agree with the decision, yet did respect that the constitutionality of some provisions of ACA were at least debatable IMHO ("reasonable people could disagree".)
Some points of order, moot now but in retrospect:
1. The penalty for not buying insurance under ACA is to pay extra tax, not a "fine". That isn't just semantics, it means you didn't violate a statute and so don't have criminal law sanction against you. That legal distinction is very relevant to the argument SCOTUS is considering.
2. The point of targeting "health" in particular, is the liability (from basic human decency, right? So maybe even Ted Nugent could get an inkling ...) to take care of people who collapse in the street etc. That means spending money on them for that purpose, it is therefore *not* the same as just "help somebody else out in dire straights so buy yadda". In fact, the whole point is not to help the providers, but to cover *us* for being on the hook for the freeloading users of emergency health care etc.
3. This mandate idea originally came from conservatives, it is like Romneycare in Mass. (!), and if Republicans hadn't opposed the public option, we would have had something like extended Medicare for all. Well that was their fault and that of insurance lobbyists (who wanted the business and to hell with legal principle, such as it is), not liberals; who wanted the PO.
4. It may be that Roberts was looking out for insurance company profits and not constitutionality. Maybe cynics of left, right, and center can agree to be suspicious of his and others' motivations.
I got tired of having to explain these key points over and over to conservatives/libertarians/Fox viewers/whomever, who don't really try to learn what's behind all this and just accept the misleading talking points of right-wing ACA critics. (The "left-wing" ones have the valid complaint, we could have gone to PO instead.)
BTW, will ACA help keep the real death panels out of corporate boardrooms, per RPOV's sarcasm?
Cheers.
"onsushi" - Hmmm, more radioactive tsunami junk on the way?
c u n d gulag on June 28, 2012 10:59 AM:
HUZZAH!!!
Maybe...
Three of “The Four Fascists,” Kennedy, AND Roberts, all said the mandate as commerce was NOT constitutional.
Roberts was the ONLY one on either side (as far as I can tell now), and in the majority who wanted the mandate to be a tax, and not as part of commerce – and the 4 more rational Centrist Justices, all wanted it to be part of commerce, but conceded to make sure the ACA was approved.
This, of course does NOT bode well in future decisions if Mitt wins, and has a R Congress.
After they repeal ACA, they can try to dismantle all of the social programs that are part of the “Commerce Clause”
More short term – politically, now the R’s can scream about a NEW TAX by Obama and the D’s, and approved by an activist SC.
This will be spun as a win for Conservatism shortly.
FOX and talk radio just need some time to figure out how to do it.
And if that fails – they can scream and wail, and tear at their hair and garments, and shriek about Socialism and Fascism.
boatboy_srq on June 28, 2012 11:02 AM:
@pj_in_jesusland on June 28, 2012 10:38 AM:
Are we sure Fauxnooze is the only GOP propaganda machine? CNN has sounded increasingly Fox-y for the last ten years.
Al beat me to it, but I'm waiting for official calls to impeach Roberts as one of those "activist judges" in 5.... 4.... 3....
John B. on June 28, 2012 11:05 AM:
How Romney Could Scramble U.S. Politics -- Forever
It looks like fairly good news from the Supremes: a corporate-friendly non-public option almost-national health care bill is upheld, although half the states now are empowered to balance their books by effectively destroying Medicaid. Good news for Obama? I think so.
But here's a thought experiment: Suppose Romney were to come out and blast Obama for not supporting the public option (and of course he'd have to twin this up with some nonsense about Democrats-always-want-tax-you). And then he says, "As you know, I have pledged to repeal Obama-care [that's what he calls it] my first day in office. But I haven't yet said what I would replace it with. Now I will. "Medicare for All."
"We already have a wonderful infrastructure for providing quality health care for our senior citizens. It's called Medicare and it works. As the little old lady in [wherever] said, "Keep the federal government out of my Medicare."
"The fundamental problem with Obamacare is that it will endanger Medicare. It sets up a complex, parallel administrative system across the nation that will double the administrative expenses and duplicate much of what Medicare can do.
"So, I pledge to you that if elected I will dismantle Obama-care's unnecessary, duplicative administrative system. In its place I propose that ALL Americans will become eligible for Medicare without regard to age. We will save, strengthen, and extend Medicare to all by abolishing Obama=-care."
Now, that would scramble the presidential election. Even I would vote for him.
c u n d gulag on June 28, 2012 11:05 AM:
David Gregory, not surprisingly, was on MSNBC, giving his impassioned version of Conservative talking points!
What a waste of protoplasm that feckin' idjit is!!!
TCinLA on June 28, 2012 11:05 AM:
Well, let's not see any more sentences with the words "Justice Kennedy" and "moderate" in the same sentence.
The implied limitation of the commerce clause is going to play hell with things such as dealing with climate change (which probably is never going to happen anyway, making that one moot).
hells littlest angel on June 28, 2012 11:06 AM:
I always suspected Roberts of being not totally devoid of self-respect.
A happy day.
T2 on June 28, 2012 11:07 AM:
Mr. Bates #3 is the real truth here. This was a REPUBLICAN idea. The one and only reason they hate it now is that Obama did it.
Here's what I'd love: Every TeaBagger that yells "the Government can't make me buy insurance" should immediately be prevented from having Medicare and any of their family on Medicare should have it taken away.
POed Lib on June 28, 2012 11:08 AM:
Not only does this obviate almost everything that conservawhacks have said for 3 years, and not only does this preserve Obama's accomplishment, but this means that the court has not positioned itself to gut the New Deal. Had this gone, Medicare was next, as well as SS.
Obama should now be in better shape.
The captcha:
leave; repubd
Hmm, is it the Oracle of Delphi?
2Manchu on June 28, 2012 11:09 AM:
So is Romney going to take credit for the ACA (it was based on his own plan, you know), or will he still say he's going to repeal the ACA if he wins?
Or will he say both? In the same speech?
victory on June 28, 2012 11:11 AM:
yeah! my friends will all have insurances now regardless of their situations or jobs! thank you, thank you. i'm so happy for all the 30+ million americans!
isn't this nice that this law will help people who opposed this law nonetheless?
hell, this had collective benefits to our society.
it's not financially irresponsible, either. it taxes consumption of cigarettes, tanning (which raise the health care costs) and raises medicare tax on people making 200,000 and capital gains while cutting a half trillion from medicare.
America can subsidy all the poor and jobless collectively. it's a big, rich country as a whole. Yes we can. Yes we did!
congrats, democrats. you made another history( even though every other developed country has done this long ago).
US might become a trend follower from a trend setter, but it's much better than not follow good trends.
Joe Friday on June 28, 2012 11:16 AM:
The threat to repeal the ACA is now toothless. The ReTHUGlicons in the House can vote to repeal it, just as they can vote to declare the moon is made of green cheese, but there will not be 60 votes in the Senate, no matter who is President.
BTW, Roberts is an even bigger whore than I imagined he was.
berttheclock on June 28, 2012 11:16 AM:
But, are any of you really sure about this? I only follow CNN and FAUX scrolls. Happily, they both are calling Dewey the winner, as well.
Rick B on June 28, 2012 11:24 AM:
I'm no attorney, but is it possible that Roberts decided that his court was not going to reject the constitutional basis of a great deal of federal activity under the commerce clause since the New Deal?
Neil Bates on June 28, 2012 11:35 AM:
John B, Obama can say that Republicans wouldn't have let him do that, and he will also tender a Bill to do such a thing (easy to do without scaring his own corporate backers, it will likely not pass.) His doing so won't turn off those who'd vote for him anyway, but what will Romney's conservative and corporate backers think? If Romney really followed through, a Republican Congress would embarrass him by not passing it, etc.
Heh, "unprovided", indeed! Is there some mystical quantum entanglement from Captcha? BTW I have noticed if I mention Captcha, or esp. the scornful takeoff version, I am more likely to be challenged no matter how carefully I type in the challenge words!
neil b. on June 28, 2012 11:39 AM:
BTW, I don't see how "Obama raised your taxes" can be used unless the tax is *more* than just a penalty for those who don't join and get insurance. Otherwise, you don't pay anymore, and most people will go along - am I right?
Aww, I remember Sassafras tea, and liked it! Is it really bad for your liver?
Sean Scallon on June 28, 2012 11:48 AM:
Crawled out of your bunker yet?
SecularAnimist on June 28, 2012 11:53 AM:
So, the Republicans on the Supreme Court have now ruled that a policy Republicans have advocated for decades, the individual mandate requiring all Americans to guarantee and subsidize the profits of the for-profit insurance corporations, shall be the law of the land.
And this is a great victory for Obama.
I don't know whether to laugh or cry.
bdop4 on June 28, 2012 11:55 AM:
I think Roberts realized that this was a "legacy" vote and the prospect of being permanently linked to Scalia and Thomas made him queasy.
That and the insurance company mandate for higher profits.
Zorro on June 28, 2012 12:06 PM:
3 words: colour me amazed.
-Z
berttheclock on June 28, 2012 12:11 PM:
@Neil B, new thread suggests they are already using the "Tax, Tax, Tax" argument. As stated in that thread, Rubio has thrown the tax word repeatedly in his response to the decision. Look for FAUX to run scrolls showing "ObamaTaxCare" ad nauseum.
cmdicely on June 28, 2012 12:16 PM:
Which is a pretty bizarre rule, if you think about it. Because the result is this:
1. Congress can, unquestionably, abolish the existing Medicaid program.
2. Congress can, unquestionably, establish a new program that has the new condition, and apply that condition to participation in the new program.
3. Congress can expand the existing program with the condition, but can only apply the condition to the expansion, not to the bits that were there before the expansion.
4. Congress cannot expand the existing program and apply the condition to the whole program, even though that is exactly identical to the combination of #1 and #2 above, both of which are allowed.
murphro2 on June 28, 2012 12:22 PM:
I think the initial press for Obama will be good (and that's what Nate Silver was talking about last night in his blog) so this will be an overall plus for Obama. But the ruling itself is weird beyond belief and no one, liberal or conservative, can really do much more than scratch our heads. I think Roberts is trying to burden Obama by saying it's a tax and in the end, if the administration is clever in how it responds, Robert may have simply outsmarted himself. He says it is not within the Commerce Clause yet he upheld it so really, he just chickened out and made up a bogus excuse to uphold it. Call it what you will, it's upheld. Isn't Social Security just a big tax under this reasoning? What isn't a tax when it comes to the Federal Gov't?
Like most if not all of us here, I have not read the decision but am going by what I've read (always dangerous). From what's been written about the Medicare aspect of the case it makes no sense whatsoever. The basis of Medicare is that the Feds run it, so they can specify how funds are used. Not unlike the how the Gov't. decided the drinking age should be 21 and threatened to withhold transportation funding if a state refused. How quickly did this country go from legal age of 18 to 21? So now the Feds can specify how Medicare funds are allocated in all cases except ACA? How is that? Medicare may have been a small part of the ACA, but now the Court can intervene on how Federal money is allocated through legislation? Has this happened before? The Obama administration should paint this as the Court being unwilling to overturn 100 years of precedent and let Roberts take the heat from the right wingers.
Neil Bates on June 28, 2012 12:27 PM:
OK, let me clear up this issue of whether the ACA Mandate *itself* is a tax. No, it isn't, really, and here's why: the mandate itself is not a tax (like Medicare, a deduction taken from your paycheck), but *failure* to get insurance will be taxed. Am I right? Of course, right-wing demagogues will deliberately blur the distinction. That would be like confusing speed limits with road tolls.
berttheclock on June 28, 2012 12:32 PM:
St Ronny loved the term "user fees".
cmdicely on June 28, 2012 12:39 PM:
I'm no attorney, but is it possible that Roberts decided that his court was not going to reject the constitutional basis of a great deal of federal activity under the commerce clause since the New Deal?
No, because his court just did do that, it just simultaneously said that the PPACA was permissible even without that basis, as an exercise of the taxing power.
boatboy_srq on June 28, 2012 12:55 PM:
@murphro2: I think we're seeing Roberts playing 3-dimensional chess here, while Obama's playing 11-dimensional chess, and somehow because Roberts figured out how to move his rook up he thinks he's ahead.
Rick B on June 28, 2012 1:40 PM:
@Neil Bates
And how will it be known that anyone is not paying the tax? Well, they get sick and require health care. This is not so much a tax as it is making free riders pay for their medical care without forcing the health care providers to run the risk of not being paid.
So it's called a tax. Is Grover Norquist opposed to forcing free riders to pay their own way?
Oh, wait. Ask someone other than Norquist who is sane and not on the Koch brothers payroll.
mcc on June 28, 2012 4:10 PM:
Prediction: California will have single-payer health care within ten years.