Maybe I
should think about law school... I'm having a truly nerd-like level of fun reading these opinions and have been caught by surprise at the outright sarcasm and almost-but-not-quite intellectual trash talking that pops up in these opinions. I love it. It's like nine of the smartest people in the room are fighting- but with their brains. Looking at the whole scope of the decision, you begin to see how much of muddle it really is. Roberts wrote the majority opinion- but the Ginsberg, Kagan, Sotomayor and Breyer agreed with most of it but disagreed with some of it, while Kennedy, Scalia, Alito and Thomas disagreed with the whole damn thing and Thomas added his own dissent ('I really, REALLY disagree with it') as a cherry on top of the whole thing.
I'm not convinced this is necessarily the good news for President Obama that everyone is saying it is. Roberts managed to spin the entire Court out of a potentially polarizing, delegitimizing decision while making quietly (from where I'm sitting anyway) making it easier for opponents to repeal this legislation down the road. The cherry on top of the whole thing: the decision was breathtakingly responsible and undoubtedly restored (to some degree) the image of the Supreme Court as an apolitical arbiter that stands above the usual bullshit that goes on betwixt and between the other two branches of the government. It was probably the smartest political move of the decade.
But we'll start with Ginsburg's opinion: it's a weird thing that just demonstrates how complex this decision actually is. Ginsburg agreed with the Chief Justice to uphold the mandate as a tax but disagreed with the idea that it was unconstitutional under the Commerce Clause. She also thinks that the Medicare Expansion should stand exactly as it was written in the original legislation. Ginsburg views Roberts' take on the Commerce Clause as a 'crabbed reading' and 'retrogressive' arguing that of all the markets out there, Health Care is the one market that everyone will use at some point in their lives. The notion that the Commerce Clause argument some how gives Congress the power to regulate economic inactivity holds no water with her- after all, the problems with health care costs stem from the fact that healthy people go without- until they need health care and then you're in the middle of a free rider problem all over again.
The Medicare Expansion she has even less trouble with. The original Act itself says that revisions and changes might occur and the states have to just deal with it- but Roberts' argument is that in order for that notion to apply, states would have had to be warned of the possibility that this could happen when the original legislation was passed in 1965. (His use of Dole v South Dakota makes a lot more sense to me- withholding 5% of Federal highway funds as encouragement to raise the drinking age to 21 is more of an encouragement- paying for Medicare eats up double digit figures of state budgets. That's more of a loaded gun to the head.)
In short, Ginsburg and company feel that Roberts' is tap dancing a bit- but not enough that they won't vote with him. They just want to make their disagreements with him known.
The Conservative Dissent is even more easy to break down: Kennedy, Alito, Thomas and Scalia have no truck with any of this. The Government argued for the mandate under the Commerce Clause and they join with Roberts' in the view that the Government was basically asking for Congress to have the power to regulate economic inactivity and they're not down with that notion at all. That's waaaaaaay too much power for Congress to have in their books. So, thanks but no thanks. As for the tax argument, they pour scorn on the high wire act of the Chief Justice- who basically re-wrote parts of the statute to say that the mandate was a tax when everybody has said firmly that it wasn't- this is the really the money quote:
"The government and those who support its position on this point make the remarkable argument that [the mandate] is not a tax for purposes of the Anti-Injunction Act, but is a tax for constitutional purposes," wrote dissenters Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. "That carries verbal wizardry too far, deep into the forbidden land of the sophists."
So the Dissenters weren't about to hand Congress an expansive new definition of what it could do under the Commerce Clause- a point that Justice Thomas felt strongly enough about to emphasize in the two page dissent of his own- and they weren't buying the idea that the mandate wasn't a tax under the Anti-Injunction Act but was a tax constitutionally speaking. Out with the whole damn thing, they said!
So where does this leave us? In the short term, it's good news for the President. I'm still not entirely clear how this reduces costs in health care though. The insurance companies have been burdened with community ratings and non-discrimination clauses that have traditionally had to be paired with a mandate (as Ginsburg notes) in order to prevent massive rate hikes (all of which happened in a few states that passed community ratings/non-discrimination clauses without a mandate. Massachusetts seems to have proven that it can work- with a mandate.) But here's the thing: this tax now, carries a penalty that will be collected by the government, not the insurance companies. So in the short term unless there's a rush of healthy people into the market, rates will go up. And if insurance for individuals is still more expensive than paying the penalty to the IRS people will vote with their pocketbooks and you're back in the free rider problem all over again.
Reading this, the whole Act seems like an awfully dicey proposition- it might work this way but there's a whole bunch of tweaking that has be made as we go. That's not good policy in my book but I think opponents have to tread carefully here. As recent events in Wisconsin show, voters seem to reward politicians that actually produce concrete results and like it or hate it, we all agree that health care costs are out of control. President Obama and the Democrats have done something about it- the Republicans will undoubtedly have fun playing this as a tax increase but that's only going to get you so far unless you get specific on what you want to replace it with. Instead of trolling for a repeal on July 11th, Republicans should push a
revision.
There's also the matter that I think it just got easier to overturn this- tax bills are much less vulnerable to filibuster than other bills and while Congress has the power to levy a tax, I'm pretty sure all the agencies that are responsible for collecting the tax fall under the purview of the Executive Branch. There might be a little more complexity to this notion but in my head, it would be pretty easy for a Republican President, say, to just issue an executive order directing the IRS not to collect the tax.
Finally, I know Chief Justice Roberts is getting jumped up and down on in Conservative circles right now and he shouldn't be. It's obvious he pissed his colleagues off but as Chief Justice he's got the responsibility of protecting the institution of the Court itself- which this decision did. He also makes it plain that it's not up to the Court to protect the people from the actions of their elected officials. Slapping the Republicans upside the head and basically saying: 'Don't come crying to me! You broke it- put on your big Legislator pants and fix it.' I like that because I happen to agree with that notion- the Supreme Court should, when possible try and hold itself above the fray. It can't always be spun that way but just because politicians pass bad laws, we shouldn't all go running to SCOTUS expecting them to settle it either way.
So good news for the President! Good news for fans of limited government as they put some limits on the Commerce Clause for once and an interesting read all around... fun times at the Supreme Court! Can't wait for the next juicy decision.
