CNN and many other news media got it wrong this morning, but some of us were watching the live blog at SCOTUS blog. The silence of my home office felt strange given the anticipation and strong feelings around the decision, but I was glad in the end that I had the TV off. The only sound was the unique four clicks announcing an update on the blog.
Here are highlights of the ruling from the commentary at SCOTUS blog.
From Amy Howe:
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.
Justice Ginsburg makes clear that the vote is 5-4 on sustaining the mandate as a form of tax. Her opinion, for herself and Sotomayor, Breyer and Kagan, joins the key section of Roberts opinion on that point. She would go further and uphold the mandate under the Commerce Clause, which Roberts wouldn’t. Her opinion on commerce does not control.
The Court does not reach severability issues, having upheld the mandate 5-4.
From Tom Goldstein:
Lyle is working on his initial post now. He will be adding to it but here’s the first paragraph: Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial — and most controversial — feature of the Affordable Care Act. By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t. That is the way Chief Justice John G. Roberts Jr., was willing to vote for it, and his view prevailed. The other justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.
The Court holds that the mandate violates the Commerce Clause, but that doesn’t matter because there are five votes for the mandate to be constitutional under the taxing power.
“Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impost a tax. This is sufficient to sustain it.”
From Lyle Denniston:
For readers of the opinion, a quick look at pp. 31 and 32 of Roberts’ opinion tells you why the Court is sustaining as a tax measure.
Essentially, a majority of the Court has accepted the Administration’s backup argument that, as Roberts put it, “the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to IRS.” Actually, this was the Administration’s second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax. The third argument won.
On the Medicaid issue, a majority of the Court holds that the Medicaid expansion is constitutional but that it would be unconstitutional for the federal government to withhold Medicaid funds for non-compliance with the expansion provisions.
The key comment on salvaging the Medicaid expansion is this (from Roberts): “Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.” (p. 55)
Ginsburg’s bench statement says that “seven members of the Court … buy the argument that prospective withholding of anticipated funds exceeds Congress’ spending power.” The remedy, Ginsburg says, is “to bar the withholding found impermissible, not to scrap the expansion altogether.” There are five votes for that.
In opening his statement in dissent, Kennedy says: “In our view, the entire Act before us is invalid in its entirety.”
Howe also noted the size of the opinions:
The Chief’s opinion is 59 pages, Justice Ginsburg’s opinion is 61 pages, the four dissenters are 65 pages, followed by a short two-pager from Justice Thomas. You do the math.
A commenter notes that the Chief Justice’s opinion starts with a mini-civics lesson — definitely an awareness that this is one for the ages.
Read the court’s full opinion here.
Read the entire live commentary here.