The Supreme Court's Health-Care Ruling

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A lot to read and think about--not sure yet what the Medicaid part of the ruling will mean--but overall a good result, and a refreshingly intelligible rationale from Chief Justice Roberts.

[From the Washington Post:] In a 59-page opinion, Roberts wrote: "The Affordable Care Act is constitutional in part and unconstitutional in part." He said the individual mandate "cannot be upheld as an exercise of Congress's power under the commerce clause," which allows Congress to regulate interstate commerce but "not to order individuals to engage in it."

Roberts added: "In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress's power to tax."

Neither the plaintiffs in the case nor the Obama administration had argued before the court that the individual mandate was a tax.

The other day I said I wouldn't be surprised if the Court upheld the law. But I am in fact surprised--not by the larger outcome, but by the composition of the majority and the route they took to get there. The result, in effect, is the commonsense view I thought the Court would feel compelled to ignore: namely, that to all intents and purposes, the mandate-and-penalty is a tax, that nothing would be materially different if Congress had framed the law that way, and that if it had framed the law that way there'd be no constitutional issue. The Court has upheld the law despite the administration's arguments, not because of them. It disagreed with the law's proponents in order to uphold their plan.

I'd also thought a 6-3 ruling either for or against was most likely, with Kennedy and Roberts on the same side. They ended up on different sides--and Kennedy's dissent is severe, as though he thinks the majority is not just wrong but obviously wrong.

Joined by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., Kennedy called the majority's decision a "vast judicial overreaching" that "creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect."

A vast judicial overreaching. Is Roberts therefore a liberal now? The law's angriest critics could not have put it more forcefully. Earlier today, it's an accusation I'd have bet good money Kennedy would not be aiming at a Roberts-led majority.

Happily I was wrong. It's an absurd accusation, and I'm glad it comes from the losing side.

Read The Atlantic's full coverage of the Supreme Court's health-care decision.

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Clive Crook is a senior editor of The Atlantic and a columnist for Bloomberg View. He was the Washington columnist for the Financial Times, and before that worked at The Economist for more than 20 years, including 11 years as deputy editor. Crook writes about the intersection of politics and economics. More

Crook writes about the intersection of politics and economics.

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