SCOTUS Acrobatics and the ACA

The Supreme Court ruled on the Constitutionality of President Obama's Affordable Care Act today and it was an interesting and unexpected tap dance they appear to have pulled off... to whit:

In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding.

(Thank you, SCOTUS Blog...) But reading from the actual opinion itself (I think I've managed to slog through the legalese a bit- I've only gotten through the summary so far) there are some interesting things worth noting.

Chief Justice Roberts, writing the 5-4 opinion for the majority wisely stays far away from the merits of the legislation itself but rather concentrates on the constitutional questions at hand- basically, are the individual mandate and the Medicaid Expansion constitutional. On the first one, he ruled that the mandate wasn't constitutional under the commerce clause:

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Con- gress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the prin- ciple that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sus- tained under Congress’s power to “regulate Commerce.” Pp. 16–27.

This is a little bit of awesomeness because it slaps Congress around a little and is clearly aimed at keeping their powers to regulate commerce carefully constrained. But, logically then:

(b) Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penal- ties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that pay- ment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is un- lawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language— stating that individuals “shall” obtain insurance or pay a “penalty”— does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insur- ance. See New York v. United States, 505 U. S. 144, 169–174. Pp. 35–40.

So in other words, it takes the mandate out from the Commerce Clause and says it's perfectly reasonable for Congress to say that if you don't buy/purchase health insurance then they can levy a tax against you for that.

I'm not going to pour on the acres of legalese for the Medicaid Expansion thing- basically, the law said that the government could pull ALL Medicaid funding from states that refused to comply with the ACA regulations. The Court ruled that was a no-no but the government could tie compliance to NEW funding only. So if states don't comply then can lose new funding only. (I like this because it means the Federal government can't just steamroll the states into doing this necessarily but as we saw with the drinking age blackmail, money can be a powerful narcotic.)

The WDO (whole damn opinion) can be found here. I suggest a bottle of Excedrin and a dictionary- it's kind of complicated.

Overall, I think it's a surprisingly acrobatic decision on the part of the Supreme Court. Conservative, apolitical and although it will undoubtedly have right-wingers foaming at the mouth, I haven't come across anything wildly out of balance with sanity just yet. Expect to see Romney kick 'Obama wants to tax the middle class to death' meme into high gear and I'm betting the House Republicans will be ballsy and embark on a completely meaningless repeal effort. I still think this is an unripened turd of a law. Things like health care cooperatives and being able to buy insurance across state lines and health care portability are all things I'd like to see. Now that the Supreme Court has left this genie out of the bottle, I'm hoping our politicians can polish this turd up to the point where it can provide a menu of sensible options for everybody and avoid turning into the kind of health care insanity that Europe is discovering they can't afford anymore.

I'll (probably) keep reading this and might have some more thoughts later on.