Supreme Court Upholds “Obamacare”

(Mitt Romney, the bill's original author, says, "No Comment...")

Today's ruling was a win for the Obama administration, and will likely lead to a fundraising bonanza for corporate front-groups opposed to the law.

By Joshua Holland, AlterNet
June 28, 2012

The Supreme Court made conservative heads explode and lots of legal experts look clueless today when Chief Justice John Roberts joined the court's moderate wing to uphold ObamaCare in its entirety – with a few twists (most legal observers had predicted that if Roberts upholds, Justice Anthony Kennedy would as well, but Kennedy voted to strike down the entire law). It was a historic win for Congressional Democrats and the Obama administration.

Both CNN and Fox "News" had 'Dewey Defeats Truman!' moments when they reported, immediately after the ruling was handed down, that the mandate had been struck down as unconstitutional. (An Associated Press editor later sent around a memo telling AP staff to "stop taunting" their competitors who'd blown the call.)

That was based on a partial read. The majority effectively upheld the controversial mandate requiring people to carry coverage or pay a modest penalty, but Roberts wrote that it couldn't be sustained under the Constitution's Commerce Clause because, in his view, Congress can regulate economic activity, but not inactivity. Rather, he ruled that the penalty for not carrying insurance was kosher under Congress's taxation powers.

This was probably a bone thrown to 'states rights' conservatives, and will prevent Antonin Scalia from giving him dirty looks for the rest of his tenure. It also means the government cannot force you to buy broccoli. Justices Kagan, Ginsberg, Sotomayor and Breyer maintained that the mandate was sustainable under the Commerce Clause.

Lyle Denniston of SCOTUSBlog writes that it's “not immediately clear whether the Court’s approach will produce as large a pool of new customers” because “the ACA’s key provision now amounts to an invitation to buy insurance, rather than an order to do so, with a not-very-big tax penalty for going without.”

But functionally, Roberts' distinction probably doesn't mean much. Despite the media's intense focus on the mandate, it never represented a terribly onerous burden on those who refused to carry health insurance – the penalty, after all, was pretty small and many poorer Americans were exempted from the requirement (according to the Congressional Budget Office, the mandate will impact only 16 percent of Americans). At the same time, it was easily demagogued as tyrannical, so you had a lot of fear factor without a lot of compulsion. That's still true – it may be an invitation rather than an order, but the not-very-big-penalty remains the same.

It's possible that the Roberts' chosen path of “splitting the baby,” as they say, will have some impact on the federal government's ability to regulate interstate commerce in other areas, but the outcome again doesn't seem that significant as the Congress is unlikely to regulate other kinds of “inactivity” – ObamaCare isn't an everyday regulation.

The other half of the decision related to the expansion of Medicaid eligibility for people making up to 133 percent of the federal poverty line. Here the justices, in a decision split in several ways, found that: the government could offer the states a boatload of money to cover their poor and uninsured; it could place conditions on that pile of cash; but it can't threaten to withhold all of a state's existing Medicaid money if it refuses to go along with the program.

It is entirely possible that governors of some red states will reject the funds out of spite, and based on that perverse Ayn Rand theology that has infused the GOP. That would essentially screw some poor people in conservative strongholds, resulting in fewer people getting Medicaid than the ten million that had previously been projected. But, historically, red state governors tend to go the hypocrisy route – condemning federal meddling and loudly decrying creeping socialism while they quietly pocket the dough. In any event, if states do opt out of the program in order to punish poor people for the crime of being poor, that move will likely come with a high political cost.

Ultimately, today's ruling was an enormous victory for the Obama administration, and will likely lead to a fundraising bonanza for conservative politicians and corporate front-groups opposed to the law. The ruling is also a credit to John Roberts, who, it appears, simply couldn't find it within himself to strike down a law that Congress had spent a year crafting, and that an overwhelming majority of constitutional scholars believed to be a valid exercise of Congressional power.

Republicans vowed to fight harder to repeal the health-care reforms in their entirety, promising to tell the American people what they would replace it with at some point down the road.

Meanwhile, Buzzfeed reports that dozens of patriotic Americans are vowing to flee to Canada – with it's tax-payer funded universal health-care system because “the United States is entirely too socialist.” At the time of this writing, there are no reports yet of Canadian authorities moving to shut down their Southern border.