'The Umpire' Strikes Back—and The Affordable Care Act Survives

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The chief justice is the linchpin holding the individual mandate intact. Go figure. 

obamacare awesome.jpgReuters

In affirming the "individual mandate" contained in the Affordable Care Act, in refusing to strike down other portions of the controversial health care law, the Chief Justice of the United States, John G. Roberts Jr., saved the chief executive of the United States, Barack Obama, from great political embarrassment. At the same time, the chief justice also perhaps spared the Court itself, as an institution, from being dragged further into the thick of partisan fury this election season. The self-proclaimed and much-maligned "umpire" struck back.

But don't be fooled by the White House's glee. The pragmatic compromise we saw this morning -- right out of the playbook of former state legislator and Supreme Court Justice qua deal-maker Sandra Day O'Connor -- neither ends the legal or political debate about the law's authority nor precludes further legal challenges. A majority of the justices, don't forget, including the chief justice, declared that the law could not stand as a valid exercise of Congressional power under both the Commerce Clause and the Necessary and Proper Clause of the Constitution.

Those were the two main arguments the executive branch had made defending the constitutionality of the Care Act. And they both were shot down. Instead, the chief justice joined with the Court's liberal wing in determining that the law was a valid exercise of federal power under Congress' taxing power. Think about that for a second. For the feds, it's like going to the dance with one date and coming home with another. But I suspect that the law's supporters, and the tens of millions of Americans who will benefit from the new law, don't really care. John Roberts, of all people, is their new hero. Go figure.

The decision, in the case ultimately styled National Federal of Independent Business v. Sebelius, is 193 pages of fur and teeth, particularly from the four dissenting justices, the Court's conservatives, who lost big three times this week (Arizona v. United States and Miller v. Alabama being the other cases that didn't go their way). No wonder Justice Antonin Scalia was so angry on Monday when he read his dissent in the Arizona immigration case. No wonder Justice Alito was so angry on Monday in his dissent in the juvenile sentencing case. And just imagine the pillow talk tonight at the Thomas' house when Clarence and Ginny discuss the day's news!

But first, the majority. Here is one of the many money quotes from the chief justice's opinion, suggesting a level of judicial deference to legislative authority that many of the Court's recent detractors said the chief justice would be unwilling or unable to deliver:

Members of this court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation's elected leaders, who can be thrown out of office if people disagree with them. It is not our job to protect the people from the consequences of their political choices.

What we have here, then, is an answer to some of the constitutional questions raised by the Affordable Care Act. What we do not have here is a ruling that remotely suggests a bright future for the Commerce Clause, a sharp point Justice Ruth Bader Ginsburg made from the bench on Thursday. Even in victory, she blamed the Court's majority for a "retrogressive reading" of the Commerce Clause -- one that will likely come back around the next time a new federal law is challenged on this basis. This was no rout.

No rout, indeed. And it's easy to read in the text of the ruling how easily it all could have gone the other way. For example, remember all the endless chatter about the "action/inaction" dichotomy inherent in the law's mandate? The law's opponents said that Congress had no power to regulate "inactivity" -- the choice not to buy health insurance. Well, the same man who saved the Care Act agreed completely with that vital distinction. From pages 20-33 of the majority opinion:

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.

Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and -- under the Government's theory -- empower Congress to make those decisions for him...

The proximity and degree of connection between the mandate and the subsequent commercial activity is too lacking to justify an exception of the sort urged by the Government. The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to "regulate Commerce."

If you had asked 20 constitutional scholars before today whether the Act would be upheld with this sort of analysis on "action/inaction" (the four dissenters agreed, by the way), I reckon 18 would have said "no way." And yet here we are. Why was the chief justice wiling to find another reason for upholding the law? Here's his rationale for saving it under Congress' taxing power.

Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance. Congress's use of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote, for example, purchasing homes and professional educations.

Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.

Of the Medicaid expansion, another controversial portion of the Care Act, the Court's majority ruled that it was a valid exercise of federal power so long as it wasn't used coercively to punish states that don't comply with the requirements of the Act. Even though this portion of the ruling limits the scope of federal power, Justices Elena Kagan and Stephen Breyer joined with the chief justice:

Nothing in our opinion precludes Congress from offering funds under the Affordable Care Act 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.

The dissenters, naturally, took a different view. Of the Medicaid expansion, they wrote that the Court's majority had gone far beyond where legal precedent permitted:

In a few cases, this Court has held that a "tax" imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held -- never -- that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress' taxing power--even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act adopt[s] the criteria of wrongdoing" and then imposes a monetary penalty as the "principal consequence on those who transgress its standard," it creates a regulatory pen­alty, not a tax.

But it was toward the very end of the dissent that the chief justice's fellow travelers really unloaded on their fellow Republican appointee and the Court's progressives. Get a load of this language from page 190 off the ruling:

The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanction of a total cut-off of Medicaid funds to a supposedly non-coercive cut-off of only the incremental funds that the Act makes available.

The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court's new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.

The Court's disposition, invented and a textual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism concerns and places an unaccustomed strain upon the Union.

From the words of dissent to the lips of Republican politicians all over the country. We are going to see variations of these critical themes from now until election day -- and probably long after it as well.

The legal battle over the Affordable Care Act is over. Long live the legal battle over the Affordable Care Act. And all because a chief justice who has sided almost universally with conservative causes over the past six terms decided instead to find a way to make it all work. John Roberts and the Affordable Care Act -- now they are intertwined for history. Again, go figure.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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