29 Jun

(Guest blogger, Emma Greenman, JD, MPA)

Love it or hate it—the individual mandate is here to stay.  I am guessing the readers of this blog already know this and have been tweeting about it for the last 24 hours.

So now is as good of a moment as ever to step back and do what we should have done two years ago—celebrate Obama’s HUGE accomplishment of getting a universal health care policy passed.  It took over 80 years…Obama did it.

And if the GOP partisans weren’t so obsessed with being against everything Obama, they Lwould have reason to cheer too. After all the individual mandate is a Heritage Foundation brainchild intended as a private, market-based path to universal coverage that pleased private insurance companies and fended off a single-payer system. In fact, if the GOP were not so manically obsessed with ruining Obama—they could count this ruling, and the individual mandate as a victory.

But alas, that is not the world we live in. We live in the hyper-partisan, zero-sum, scorched earth world.  Before suiting up for battle and because CNN and Fox got it so wrong, I thought it’d be helpful to start with a brief overview of what the Court actually decided yesterday. (Plus it will spare you the agony of reading all 193 pages of the decision like I did last night.)

  • Declares the individual mandate an unconstitutional use of the Commerce Clause: CJ Roberts & the four conservative justices ruled that the Commerce Clause limits Congress’s power to regulating “activities” that affect Commerce. The reasoning, like it or not, is that making someone buy insurance is forcing them to act (buy insurance) in order to regulate it. This part of the ruling actually hands the conservatives a win against the “tyranny” they railed against—but their reaction yesterday showed they weren’t really concerned about the Commerce Clause, it was just their weapon of choice to demagogue against Obama.  Thus the frowns and tears outside the Court.  Note: this is where CNN and Fox News stopped reading and started talking. Big mistake.
  • But affirmed the Federal Governments power to tax people who don’t buy insurance, thus the mandate stands as a tax: CJ Roberts with the help of the four liberal justices (who would have preferred to rule the mandate constitutional under the commerce clause) ruled that the law could be interpreted as a tax on folks who decide not to buy insurance. No matter that the ACA called it a penalty and the President disavowed it being a tax—it’s a plausible construction of the statute and a great wiggle out of the clear jam CJ Roberts found himself in. Roberts upheld it as a constitutional use of Congress’s taxing powers much to the chagrin of the four conservative justices.
  • Limits the Feds ability to strip Medicare funds from States that don’t go along with the Medicare expansion.  CJ Roberts & the conservatives struck down the provision giving the HHS Secretary power to strip all Medicare funds from state’s that rejected the Medicare expansion because it unconstitutionally “coerced” states into the program.  And here is where CJ Roberts split the baby. He ruled that the Medicare Expansion provisions survives but restricts what Congress can do to coerce or cajole States into joining the new program. I’ll spare you the doctrinal arguments about commandeering states into the service of the federal government, and just say that to me, this may have actually been the right decision.  And it made Scalia really mad. He wanted to scrap every part of it.
  • This was a 4-1-4 decision. The liberal justices would have upheld the entire ACA and read the Commerce Clause expansive to allow for an individual mandate.  The conservative justices would have struck down the whole thing without much thought to which branch is democratically-elected and which branches are charged with making policy (note to Scalia and crew: it’s not the Court). Chief Justice Roberts’ was the only Justice interested in using a scalpel to scale back the most aggressive parts of the ACA, while leaving the vast majority of the legislation unchanged and untouched.  His new found urge to curb the activist wing of conservative justices saved Obamacare and probably his legacy too (although he probably has 30 more years to work on this).

Ok, done with doctrine…now onto the interesting lessons. I’ll save the political implications for the next post so we can geek it out for a bit about the Supreme Court.

Chief Justice Roberts Had a Come to Jesus Moment

Everyone knew this would be a 5-4 decision, but conventional wisdom was that Justice Kennedy would be the deciding vote.  After all, he has cast the deciding vote on almost every important case on the Roberts Court and he loves the attention of being the key swing vote. And this whole term there has been no indication that Roberts would shy away from a bold decision handing a victory squarely to the GOP.

But on Thursday, Chief Justice Roberts surprised us all.  He upheld President Obama’s signature legislation and did it in a way that restricted the role of the Court and trumpeted the democratically elected branches’ (i.e. Congress and the President) role in crafting policy that address our nation’s biggest problems.

And for Roberts restrained vote, I give most of the credit to the Tea Party and Justice Scalia.  The way I see it, is that forces beyond his control outside and inside the Court, forced him to decide whether he would be the Chief Justice who took sides against the sitting President in an all-out fight to the death over the Obamacare.  On Thursday morning, I believed he got out of the shower, looked himself in the mirror, and said “I will remember that it’s my job to call balls and strikes and not to pitch or bat.” (Remember that promise?)

Now, maybe without all the hype and the partisan theatrics, Roberts would have reached the conclusion on his own that the mandate is constitutional as a tax.  But I doubt it.

The Tea Party and the pandering radical GOP members of Congress made the mandate such a key component of their attack on the President that it actually put the legitimacy of the Court at risk.  Michelle Bachmann & her posse made it know that the Supreme Court was part of their plan to take down Obama. Had the Roberts Court struck down the mandate, it would have been seen as its own Court Bush v. Gore moment.  And no Chief Justice wants that. This would be a good time to write Michelle Bachmann a thank you card.

At the end of the day, the Chief Justice didn’t want his legacy to be tied to the crazies outside the Court in colonial garb and signs that read “Dump Obama.”  Can you blame him?

Was Chief Justice Roberts hand forced by Justice Scalia?

One remarkable thing about Chief Justice Roberts’ opinion is it is packed full of assurances that this ruling reflects “a general reticence to invalidate the acts of the nation’s elected leaders.” He says it at least four times.

One could interpret that as good judging, but confirmation speeches aside, Roberts has shown little deference to the “nation’s elected leaders” when it comes to campaign spending, affirmative action, employment discrimination. Just look at Citizens United striking down years of bi-partisan efforts to keep money out of elections—Where was all this talk of policy decisions being “entrusted to our Nation’s elected leaders” then?

So what changed? What made him so deferential all of a sudden to our democratically elected branches? I can only speculate, and speculate I will.  Justice Scalia made him do it.

Let’s start by looking at what happened on Monday in the Supreme Court’s decision on the Arizona law.  Justice Scalia in a characteristically bombastic dissent went off script.  Now Scalia always uses colorful language (who doesn’t remember his Boumediene v. Bush dissent in the GITMO decision where Scalia lovingly that the decision “will almost certainly cause more Americans to be killed.”).  But he outdid himself in Monday’s decision, claiming that the nation was “under siege” and states were “helpless before those evil effects of illegal immigration.”

And the kicker—Scalia went out of his way to comment on a political decision that had nothing to do with the Arizona decision or the Court.  Straying far from the legal record, a no-no for judges, Scalia attacked President Obama’s policy, announced two months after the case was heard, granting a two-year reprieve to young undocumented people who entered the country as children.  A purely political attack on what was squarely Obama’s executive prerogative executive; Scalia threatened the Court’s legitimacy and its image as an independent and temperate third branch.

Scalia’s tirade did not go unnoticed by major news outlets, the public or the Court.  And you can imagine the chagrin of Chief Justice Roberts who was about to face the most controversial and political decision of his tenure—and now Scalia pulled back the curtain. Scalia isn’t concerned about the Constitution; he is upset by policies he doesn’t like.

Now I know that the 193 page health care decision wasn’t written in two days. But I wouldn’t be surprised if passages like: “We do not consider whether the Act embodies sound policies. That judgment is entrusted to our Nation’s elected leaders” were included as a last minute damage control to contain the Scalia damage.

This is a Sigh of Relief, Not a Glimmer of Hope

Let’s be honest, most of us were a bit consumed by the unexpected rush of winning a fight we’d secretly thought was lost.  There was shock, followed by joy and relief. Upon hearing that Obamacare had largely survived intact there were cheers for Obama, praise for the real impact this policy will have and then something weird happened…all my progressive friends started heaping praise on Chief Justice Roberts.

I have a theory to explain this temporary insanity: Progressives were so relieved that Obamacare was upheld that they temporary lost grip on reality.  Because reality is that of the almost seven he has been on the bench, he has been one of the most activist conservative judges in history of the Supreme Court.  Just this week he dismissed without so much as an explanation a Montana case that showed how wrong the Court was in Citizens United.  

So as you wake up from this “we won, for once” hangover and come back to reality, remember Chief Justice Roberts is not your friend.  He did not do this to help Obama keep his job, or because he suddenly care about the 35 million uninsured American. Or even because he is suddenly concerned about deferring to the policy decisions of the democratically elected branches.

Chief Justice Roberts is no hero; he is a smart jurist who was backed into a corner. This was the right decision, for the Country and for his legacy.  But don’t get your hopes up that it is a sign of things to come. And next year, the Supreme Courts biggest cases are about race—A topic that Roberts has strong feelings about, and not in a good way.

[Note: only read this if you are a Con Law Geek] Don’t panic about the Commerce Clause ruling.

The whole legal argument for allowing an individual mandate, an admittedly a novel idea under the Commerce Clause, is premised on the fact that buying health insurance is significantly different from buying something else, like broccoli (broccoli has gotten a lot of free press out of its prominent role in this case).  It’s different because the health care market has a free-rider problem, it’s a product that everyone will use at some point, and it’s such a huge part of our economy.  Both sides agreed the government couldn’t make you buy broccoli under the Commerce Clause.

What the Supreme Court essentially said here is that health insurance is no different from broccoli; Congress can’t make people buy broccoli or health insurance. (If the Court hadn’t upheld the mandate as tax, then I’d probably be much more upset about the reading of the Commerce Clause.)  But the fears that the Chief Justice’s decision is a sign of a rapidly restricting Commerce Clause doctrine that will seriously threaten other social policy are unfounded. At least just yet.

The Chief Justice’s reasoning is narrowly tailored to reject the government’s reasoning for a version of the Commerce Clause that allows regulation of “non-activities” that substantially affect commerce. He didn’t get close to Justice Thomas’s clear desire to start restricting the Commerce Clause doctrine back to the days where you had the liberty to employ 8 year olds and pay them .20¢ an hour.  Instead Roberts reasoned that because health insurance is like broccoli, the law goes too far.

And since everyone agrees that health insurance is so different, it is hard to see how this will be a threat to future government action under the commerce clause.

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