The Mandate: Roberts says it's a tax.
It’s official, it’s historic, it’s amazing: the Supreme Court upholds the core of the Affordable Care Act 5 – 4. Chief Justice John G. Roberts crosses a historic line and sides with what becomes a thin moderate majority. The individual mandate will stand. It's simple: it's a tax. While the 193-page decision will take weeks to digest, the headline is as clear as day.
Supreme Court expert Lyle Denniston, writing in SCOTUSBlog Tuesday, decried “rash speculation that the Court’s ruling is going to be driven by an exercise of political will, perhaps even partisan preference” as if that had never happened before. Yet John Roberts did parse the recent Arizona immigration decision that gave the Obama administration—and coherent federalism—a “55-45” win. Today we have to consider a virtual, a de facto, realignment as Roberts defers to the law and offers a relatively unbiased (for him) reading of the Constitution on the powers of the federal government.
It appears in the hour following the release of the summary decision that is was less a Commerce Clause decision as it was a power to tax decision. Roberts' analysis holds that the power to tax is legit here and is effectively the only punitive or corrective action the federal government can take against those who chose not to insure themselves. But given that the Medicaid expansion was also (mostly) upheld means that low income people will be able to get coverage that way, rather than paying a subsidized insurance payment through yet-to-be-developed insurance exchanges. That leaves 10 to 15 million more or less middle class uninsured who will directly face the consequences of the mandate. The tax penalty is limited to 2.5 percent of income once fully phased in, which Denniston considers to be a mere slap on the wrist, but I think the instinct to avoid taxes is a powerful motivation nonetheless.
You really have to think Roosevelt in this historic moment. The Court opposed Roosevelt with everything it had and yet, in the end, the president won. Just 27 months after the law was enacted, Obama emerges vindicated that the formerly moderate Republican solution to the nation’s inability to insure vast numbers of its populace—and to make some effort to control the costs of that care—is justice for all.
Roberts’ crossover is amazing. The four justices who opposed the law wanted to hold it entirely invalid. That left him with stark choice. He stands alone among those who voted to uphold the law in not adhering to the Commerce Clause argument, yet he found, somehow, via perhaps even a fundamental sense of ethics, the way forward for the Court as a whole.
Many of us on the so-called left found both the tax and spending power argument and the Commerce Clause argument valid. But as the decision approached even those closest to the law, people like Jonathan Gruber, an architect of both RomneyCare and ObamaCare, became pessimistic about the law’s chances. We expected a “Constitutionalist” opinion. We expected a rejection of a hundred plus years of precedent that gave the federal government room to govern an increasingly complex body politic.
One restriction on the question of Medicaid expansion seems to limit the federal government’s ability to go after a state that opts out of the expansion. That opting out would have been a nuclear option for states as they would have to come up with the money to cover those previously covered with federal money after said funds were withheld by Washington. It is unclear how much latitude is left to the states on this issue. You can’t say you want the federal money to cover your original Medicaid population while refusing to take the money to cover those newly entitled to the benefit can you? We'll see. My guess is that a news round of intermediate sanctions against states that refuse will be formulated, along the lines of the withholding of highway funds to states that refused to implement 55 mile an hour speed limits back in the day.
Some are saying that Medicaid for all under 65 is a de facto subtext of this ruling. That in itself is striking. It would mean the health care safety net is destined to become real and palpable. If, beginning in 2014, this starts to become true, with meaningful subsidies for the uninsured middle class, then one of our longest held dreams of care for the common person may come true. I am gratified that artists, musicians, entrepreneurs, free-lancers—people from my tribe, so to speak—may have a shot at a portion of the American Dream long denied them.
This isn’t to oversell the implementation of the law. Nor is it to gainsay the possibility that the Republicans will win big in November and repeal the whole enchilada. While this win puts some wind at Obama’s back, a tidal wave of conservative money will be thrown at the election now, more than before, because the represents a momentum-shifting victory. The backlash will be intense; perhaps it will put Tea Party boots back in the streets. But in some corner of my thinking on this, I feel that Romney is on the wrong side of history at this moment, just as McCain was in his.