3 Things the Supreme Court Did That Almost Nobody Saw Coming
Despite the pundit class' best efforts to predict today's health-care decision, the Supreme Court still managed to pack a few surprises in.
Let's get the big surprise of the morning out of the way: the Supreme Court upheld the Affordable Care Act (ACA). So unexpected was the result that two major news outlets -- CNN and Fox News -- both reported the wrong outcome before quickly correcting themselves. Minutes before the decision was handed down, Intrade investors had practically written off the mandate, giving it a 69.8 percent chance of being overturned. The expectations game was heavily conditioned by the oral argument that took place back in March, when the court's open skepticism toward the mandate convinced many onlookers that the government's case wasn't nearly as airtight as it seemed.
But beyond the case's outcome itself, three other things happened that virtually nobody foresaw. Here they are:
Chief Justice John Roberts sided with his liberal colleagues. As many correctly predicted, the vote tally came out very, very close -- a 5-4 decision. But Roberts, being a George W. Bush appointee and having helped move the court to the right with such controversial decisions as Citizens United, was largely assumed to be sympathetic to anti-ACA arguments. And it was Justice Kennedy who was considered the swing voter on the court. Yet when it came down to it, Kennedy sided with the conservatives, coming out strongly opposed to the individual mandate and all the rest of it.
"In our view," Kennedy wrote in his dissent, "the entire Act before us is invalid in its entirety [emphasis mine]."
What this meant, as some also pointed out on Twitter, was that the individual mandate could not have survived without Roberts' crucial vote in favor.
The Court upheld the ACA -- with a legal twist. Much of the debate over ACA's constitutionality had to do with whether the federal government could force people to buy health insurance as a matter of interstate commerce regulation. Conservatives said the law went too far; liberals claimed some coercion was necessary to make the larger plan work. In the first part of its ruling on the mandate, the Supreme Court held that Congress had exceeded its bounds on interstate commerce. The Washington Post's Brad Plumer explains:
Basically, the court ruled that Congress can regulate existing interstate commercial activity, but it can't directly force people to enter into a market (by, say, requiring them to purchase health insurance). "The power to regulate commerce," Roberts wrote, "presupposes the existence of commercial activity to be regulated."
But instead of striking down the mandate with that logic, the majority went on to say the measure could still stand based on the government's backup argument about taxation. Since Congress retains broad authority to impose taxes on Americans, the court found legitimate reason to keep the individual mandate on the books.
The Medicaid expansion was unconstitutional before it was constitutional. Under the health care law, Medicaid coverage will be extended to about 16 million low-income Americans in 2014. The sticking point in this part of the debate was over whether the federal government, which provides funding for Medicaid to the states, could make that funding conditional on states' agreeing to participate in the expansion. It's analogous to the way federal highway funding is contingent upon states maintaining the over-21 drinking law. Most people were expecting the court either to rule that the Medicaid expansion was an undue burden to the states, or that it wasn't.
What actually happened? As SCOTUSblog explains with a detailed post that's worth reading in its entirety, the Court wound up with seven justices ruling against the expansion's constitutionality -- but the measure would be allowed to move forward so long as the Medicaid expansion became a choice. That is, states must now be allowed to opt out of the expansion without consequence.