Health Care Act Predictions: How Did We Do?

Since the Affordable Care Act was passed in 2010, Atlantic writers have been prognosticating on today's ruling. Here's how their thoughts panned out.




In May, Jack Balkin, a professor of Constitutional law at Yale, declared in no uncertain terms that the mandate would be upheld because it fits the textbook definition of a tax:

In fact, the individual mandate is a tax. The mandate is an amendment to the Internal Revenue Code, and it is calculated based on a percentage of adjusted gross income or a fixed amount, whichever is larger. Starting in 2014, it will be collected on your form 1040 just like your other taxes.

Opponents of the ACA have tried to argue that Congress's declaration of responsibility to purchase health insurance is somehow separate from the tax that enforces it. But "the idea that the mandate is something separate," Chief Justice John Roberts remarked on the first day of oral arguments, "from whether you want to call it a penalty or tax just doesn't seem to make much sense. . . . what happens if you don't file the mandate on your tax return? And the answer is nothing." 


While Atlantic contributing editor and legal analyst Andrew Cohen wouldn't put down a specific wager, in November 2011 he laid down the odds as to how the court would vote. Today, he must have been surprised: He counted the odds of Roberts siding with a majority in favor of the mandate to be very low. He was most certain that Kennedy, not Roberts, would be the swing vote. But he admitted that predicting Supreme Court decisions is no science. As he warned, "Obsess at your own risk."

Odds: 10-1. Chief Justice John Roberts cobbles together a strong majority (6-3 or 7-2) in favor of the Act by including language in the ruling that sharply limits Congressional power to go beyond the "individual mandate." This is the "legacy ruling" that would allow the chief justice to give the Act's supporters what they want but also ease the fears of the Act's detractors who worry that the feds soon will be requiring them to eat broccoli and other foods.


In the months after the law was passed, legal scholar Garrett Epps poked holes in the conservative argument that people should be able to opt-out of health care if they so choose. He said these private choices would ultimately have public consequences, and that the government should be able mandate them under the commerce clause.

The tax penalty imposed by the new legislation on individuals who refuse to insure their families really isn't based on something most of them can choose to do or not to do. It's based on something they almost certainly do not, and probably cannot, refuse to do: consume health care services. No matter how thrifty and antisocial any of us may be, no matter how devoted to homeopathy and Yoga, eventually virtually all of us will end up in an emergency room, hospital, or hospice. Even if by extraordinary effort we prevail on others to stand by and allow us to bleed out on the rumpus-room floor, we usually cannot convince them, no matter how earnestly we plead, to let our children die; state law will require they be treated. And someone will pay the cost. That you were "inactive" in getting them the care your children require should not exempt you from being the one who pays their bills.


In April, Harvard law professor Lawrence Lessig, suggested something out of left field: Justice Antonin Scalia could uphold the law, citing the commerce clause.

Scalia's commerce clause jurisprudence is among the most careful, and, in my view, precise among the justices likely to impose a constitutional limit on Congress' authority. His concurring opinion in Gonzales v. Raich, a case about whether Congress had the power to regulate home-grown marijuana, maps a very clear formula for testing Congress's authority. If you apply that test to Obamacare -- especially in light ofthe evidence just published by my colleague Einer Elhauge -- there can be little doubt about the answer.

Under Scalia's approach, the question of Congress's authority is not answered by asking whether the activity regulated is, or affects, interstate commerce. Though that clause only gives Congress the power to regulate "commerce among the several states," as Scalia said in Raich, Congress's power is supplemented by the Constitution's "Necessary and Proper Clause" power. That clause means that "Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce," at least if such regulation is "Necessary and Proper" to Congress' commerce power or to any other power granted the federal government. In other words, Congress can regulate an activity that is not interstate commerce so long as regulating it is "Necessary and Proper" to Congress' regulating interstate commerce.

That clearly didn't happen. But Roberts caused enough of a stir today when he cast the deciding vote and reminded the public that Supreme Court justices are not politicians. As he wrote in the opinion, "We possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders."