June 28, 2012

INDIVIDUAL MANDATE HELD UNCONSTITUTIONAL UNDER COMMERCE POWER, but Scotusblog says it survives as a tax. “It’s very complicated, so we’re still figuring it out.”

I feel sorry for the folks on TV trying to read this opinion and talk at the same time.

UPDATE: From ScotusBlog: “The bottom line: the entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.” Plus: “The money quote from the section on the mandate: ‘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 impose a tax. This is sufficient to sustain it.'”

So it was upheld on a basis — the taxing power — that the Administration didn’t advance. In fact, Obama denied that it was a tax. This just supports what Mike Graetz told me in Tax class years ago: “The constitution stops where the Internal Revenue Code begins.”

On the upside, the Lopez revolution, which some believed dead, appears to be revived.

So, liberals, does this mean the Supreme Court is legitimate again?

And what’s next? Republicans will have to push for repeal, or look like losers. Now Romney needs to make an issue of repealing the “Obama Healthcare Tax,” I guess. And, of course, it’s important to note that just because the Supreme Court — barely — found the Act constitutional doesn’t mean that it’s actually a good idea.

Text of the opinion is still not online. But here’s ScotusBlog’s summary:

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. . . . Yes, to answer a common question, the whole ACA is constitutional, so the provision requiring insurers to cover young adults until they are 26 survives as well.

So there you are. The Supreme Court has refused to save us from ourselves. The remedy now will have to be political.

FINALLY: Here’s a link to the opinion. I should also note that for those who thought the Lopez case dead, this opinion indicates that it remains very much alive. It appears that there may also be support on the Court for limiting Congress’s spending power. Has Roberts pulled a Marbury, appearing to give ground while actually laying the foundation for change in the future? Call that an optimistic reading.

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