From SCOTUSblog: The individual mandate survives as a tax. OH. MY. GOD!!!! — REPEATEDLY UPDATED (seven updates so far)
UPDATE: From SCOTUSblog: “The bottom line: the entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.”
TOTAL, TOTAL VICTORY !!!!
SECOND UPDATE: The opinion is 5-4, with Roberts voting with the Dem appointees and writing the opinion, and Kennedy writing the main dissent.
Here’s more from SCOTUSblog:
The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.
And:
The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate.
And:
“Nothing in our opinion precludes Congress from offering funds under the ACA 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.” (p. 55)
And (added after second update was posted):
Another way to think about Medicaid: the Constitution requires that states have a choice about whether to participate in the expansion of eligibility; if they decide not to, they can continue to receive funds for the rest of the program.
The most talked-about part surely will be “individuals can simply refuse to pay the tax and not comply with the mandate” part. Is it really a mandate at all if there’s no penalty for refusal to comply? So maybe it’s not a total victory, after all. But it’s still a big, big victory.
(The Medicaid part of the ruling has no effect on the breadth or implementation of the law at all.)
THIRD UPDATE:
Correction from SCOTUSblog (and HT to buffpilot in the comment to my post):
Apologies – you can’t refuse to pay the tax; typo. The only effect of not complying with the mandate is that you pay the tax.
Looks like everything revolves on it being a tax.
Ah-hah!! It IS a TOTAL, TOTAL victory. !!!
FOURTH UPDATE:
Again from SCOTUSblog:
In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.
Yup. Total, total victory.
FIFTH UPDATE:
From SCOTUSblog:
The Court holds that the mandate violates the Commerce Clause, but that doesn’t matter b/c there are five votes for the mandate to be constitutional under the taxing power.
Well, kudos, to … um … me. I called it pretty nearly spot-on. I began to sort of wonder in the last few days whether in fact I really was onto something, because my post from June 15 laying that out (again) kept getting more and more “hits” as the days went by. Usually my posts stop getting “hits” a few days after I post them. I actually began (almost) thinking it was possible that a few people from within the Court itself—i.e., law clerks to the justices—were clicking the post after possibly being told of it by someone who reads, maybe, Business Insider. If so, that would seem to indicate that I actually had called it right. But I dared not really think that Supreme Court law clerks were reading my post.
Btw, in a comment to a blog conversation on Slate on Monday, I wrote:
Hmm. Well, having gone out on a limb 10 days ago on a blog I write for, posting an article that discusses as one of the more likely possible healthcare-case results the tax-law outcome that Savage suggests in his LA Times article today, I’m feeling ever-so-slightly less lonely out on that tree branch. At least now I’ll have someone to cling to on Thursday as the limb falls to the ground.
The blog conversation is ongoing there. The current latest entry (from last night) is here, should any AB readers be interested.
SIXTH UPDATE:
Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act. By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t. That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed. The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.
Since President Obama signed the new law, it has been understood by almost everyone that the expansion of health care coverage to tens of millions of Americans without it could work — economically — only if the health insurance companies were guaranteed a large pool of customers. The mandate to buy health insurance by 2014 was the method Congress chose to supply that pool. It is not immediately clear whether the Court’s approach will produce as large a pool of new customers. 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.
— Lyle Denniston, “Don’t call it a mandate — it’s a tax,” SCOTUSblog
Those are the first two paragraphs of Lyle’s (I love him, and can refer to him by his first name if I want to) three-paragraph initial article on the regular blog (as opposed to the live blog). He’s sure to post updates to the article later today.
Earlier, on the live blog, Amy Howe wrote:
Take a quick look at Footnote 11, which is on page 44 of the slip opinion: Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing that they may not lawfully do is not buy health insurance and not pay the resulting tax.
And for those of you who remember my writing about an obscure court-jurisdiction statute called the Anti-Injunction Act, which was a subject of controversy in the case, Lyle, writing earlier on the live blog, wrote:
Interesting, at least to scholars, that while the mandate and its attached penalty are a tax for purposes of its constitutionality, but not for the Anti-Injunction Act. If it were a tax for AIA purposes, this case would not have been decided re the mandate.
Also on the live blog, Lyle wrote:
The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.
Tom Goldstein then wrote:
I dissent from Lyle’s view that the Commerce Clause ruling is a major blow to social welfare legislation. I think that piece of the decision will be read pretty narrowly.
I’m almost always in agreement with Lyle’s analyses (as is, I’m sure, Tom Goldstein, who is the blog’s publisher and also a major Supreme Court litigator; Amy Howe, also a lawyer, is Goldstein’s wife). But, like Goldstein, I disagree with Lyle on this one. In order for the Court to interpret this opinion as limiting Congress’s authority to enact social welfare legislation, the Court would have to place in question a slew of current, longstanding social welfare programs. I don’t think that was Roberts’ intent—really, I don’t—and I don’t think the opinion will be viewed that way. Unless, of course, Romney wins and appoints a wingnut to replace, say, Ginsburg if her health does not hold out.
SEVENTH (Yikes!) UPDATE:
This one’s not from SCOTUSblog. It’s from Ginsburg’s concurrence, joined by Breyer, Sotomayor and Kagan:
At bottom, THE CHIEF JUSTICE’s and the joint dissenters’ “view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that [is] more redolent of Due Process Clause arguments.” SevenSky, 661 F. 3d, at 19. See also Troxel v. Granville, 530 U. S. 57, 65 (2000) (plurality opinion) (“The [Due Process] Clause also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests.” (internal quotation marks omitted)). Plaintiffs have abandoned any argument pinned to substantive due process, however, see 648 F. 3d 1235, 1291, n. 93 (CA11 2011), and now concede that the provisions here at issue do not offend the Due Process Clause.8
Footnote 8 says:
8. Some adherents to the joint dissent have questioned the existence of substantive due process rights. See McDonald v. Chicago, 561 U. S. ___, ___ (2010) (THOMAS, J., concurring) (slip op., at 7) (The notion that the Due Process Clause “could define the substance of th[e] righ[t to liberty] strains credulity.”); Albright v. Oliver, 510 U. S. 266, 275 (1994) (SCALIA, J., concurring) (“I reject the proposition that the Due Process Clause guarantees certain (unspecified) liberties[.]”). Given these Justices’ reluctance to interpret the Due Process Clause as guaranteeing liberty interests, their willingness to plant such protections in the Commerce Clause is striking.
The SevenSky opinion, SevenSky v. Holder, that Ginsburg quotes from was written last November by Lawrence Silberman, a Reagan appointee to the federal Court of Appeals for the District of Columbia, and one of the most respected (in conservative legal circles) federal appellate judges, in one of the ACA cases. As for Ginsburg’s footnote 8, she says something I’ve wondered about all along: Substantive due process is legal doctrine under which Roe v. Wadeand, before that, the opinion striking down a Connecticut law that prohibited the sale and use of contraceptives, were based. Lawrence v. Texas, the 2003 Kennedy opinion invalidating Texas’s sodomy statute also was based on that doctrine. Thomas and Scalia routinely lambaste the doctrine, as do many other tea partier folks.
So the question is: Do these people now concede the appropriateness of the legal doctrine underlying those cases they hate so much?
Beverly,
Looks like Obamacare survives in its entirity, except for some restrictions on the Medicaid expansion…
Islam will change
This is interesting – from Scotusblog:
Amy Howe:
“The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate. “
What does that mean???
Islam will change
Actually, the only restriction on the Medicaid expansion concernshow much of a reduction in the CURRENT Medicaid programs the federal government can withhold from states if states opt out of the Medicaid provision in the ACA. I don’t have the opinion yet, but that was the only Medicair issue in the case.
The above from Amy was fiirst impression. Actually you HAVE to pay the tax. per same source:
Tom:
Apologies – you can’t refuse to pay the tax; typo. The only effect of not complying with the mandate is that you pay the tax.
Looks like everything revolves on it being a tax.
Islam will change
So–just to be clear–the opinion doesn’t restrict the ACA’s use and expansion of Medicaid at all. It just limits the sanction the federal government can impose on states that choose to opt out of the ACA’s use of Medicaid to expand healthcare insurance. The states that do opt out will have to come up with their own replacement plan of some sort, I believe.
In a sense, this case backfired on libertarian and anti-tax types. By upholding the mandate based on the power of Congress to tax, the Supreme Court has once again affirmed the federal government’s power to tax anything, anytime, anyhow. All that broccholi nonsense came at a price. It might have been better for some opponents of ACA if the thing had been settled based on the Commerce Clause.
The bottom line from SCotus Blog:
Amy Howe:
In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.
Islam will change
kharris,
Looks like it would have been held un-constitutional just on teh Commerce Clause. But this did affirm the fed’s power to tax anything, anytime, anyhow. Agree totally.
Islam will change
Just to indulge in the tabloid side of things for a moment, but I wonder if getting walked over by Roberts on ACA is what provoked Scalia into howling about Arizona? The Justices knew the vote on ACA weeks ago, so timing isn’t a problem.
Yeah. Thanks, buffpilot. I’ll update my post … AGAIN.
See, I was right.
I don’t think this is correct. I think that the opinion means each state can choose to keep its existing Medicaid program as is, nothing further, no replacement plan is required. So the coverage expansion will be less than anticipated.
A lot of people have been speculating exaclty that, since Monday. Me? I think Scalia would have gone off the rails on that one anyway, although may not quite so wackily. I think Scalia is mentally ill. Really.
A lot of people have been speculating exaclty that, since Monday. Me? I think Scalia would have gone off the rails on that one anyway, although maybe not quite so wackily. I think Scalia is mentally ill. Really.
Will the liberals who have been bad mouthing Roberts now apologize? Nah.
Now we are back to something more important. Obamacare is a Rube Goldberg mess and will not work.
As I read, undoing the ACA would have undone alot more law thus creating all sorts of crisis type events with no real upside for the 1000 yr republican plan unlike undoing campaign finance reform and then upholding it as a non states right issue vs paper’s please.
All this shows is that Roberts is not as ignorant of his decission’s effects as his collegues including those who pushed the US default as it relates to just how much chaos he is willing to accept.
Even Ashcroft had his limits.
No apology.
Still working my way thru the opinions but if you look at page 57 Roberts says that now “states may choose to reject the [Medicaid] expansion – that is the whole point”.
I agree with Daniel Becker but would add that I think he may be increasingly sensitive to his legacy as Chief Justice and the court that will bear his name historically. In any event, I think the country has dodged a bullet.
Yes, I am listening to Papintonio making that argument currently. Vanity certainly can be more powerful than morality.
Jack, just wondering: Which side of the little dispute between Lyle Denniston and Tom Goldstein (which I discuss in my last –my sixth–update) do you agree with? As I said in my post, I agree with Goldstein (even though I almost always agree with Lyle’s analysis; just not this time, on this one prediction). You?
Beverly said
“The most talked-about part surely will be “individuals can simply refuse to pay the tax and not comply with the mandate” part. Is it really a mandate at all if there’s no penalty for refusal to comply? So maybe it’s not a total victory, after all. But “
notwithstanding that it turns out she was wrong about about the “no-penalty mandate,” it seems to me that she really likes the mandate, independent of the health care benefits. can it be that what they say about “liberals” is really true?
and much as i hate to say i told you so, i told you the court would uphold. their friends in Health Care have better memories than the ignorant voters, who can be rallied to the Republican cause by blaming the mandate on the Democrats for the next hundred years.
Yes, you’re absolutely right, Mark. The opinion’s limitation would make no sense otherwise, in light of the specific Tenth Amendment “sovereignty”ground for the 26 states’ challenge to that part of it. Under the original structure of Medicaid, states could–and still can–opt of the program. No state has done so thus far. What Roberts is saying–what the ruling is–is that states can divide up their opt-out option; they can opt of the new (the ACA) part of Medicaid and still retain the rest of Medicaid. I think I was confusing the Medicaid provision with the insurance-exchanges provision, under which, if a state does not create an exchange, the federal government will create one in that state.
Bev, I’m with you and Goldstein on this. It’s hard to imagine what sort of social legislation he is thinking of. Things like social security and medicare can be justified on tax arguments as can virtually any benefit supported by general revenues. On the other hand, the minority clearly was trying to communicate that they want to constrict commerce power supported regulations. Roberts, however, doesn’t commit himself on this but he does allow lots of regulatory action affecting insurance companies in his decision.
In follow-up, Mark, I think this will mean one of two things: Either everyone in some states whom the ACA intended to cover will be cover and in other states, some people whom the Act was intended to cover won’t be; or, the federal government will pick up the tab for the people who would have been covered under the expanded Medicaid coverage. I think it’s probably the former; otherwise NO state would opt to take the expanded Medicaid coverage.
Unhinged needn’t mean ill. Think about other really powerful people like CEO’s or people for whom exceptions and excuses are routinely made, like professional athletes and actors. Behavior becomes unconstrained as the ego swells. The emotional equipment isn’t broken, it’s just allowed to wander unhindered all over the landscape.
SCOTUSblog was wrong about the no-penalty mandate, in writing about the opinion moments after they received a copy of it. I quoted SCOTUSblog–?I didn’t have a copy of the opinion yet. SCOTUSblog quickly corrected that, and then I did. Just wondering whether you think you could read and digest better than Lyle Denniston some 65 pages of Supreme Court writing ruling on several complicated issues.
Getting one thing right one time on questionable reasoning doth not a vindication make.
He is still responsible for Buch v Gore and C. U., two of the top several SCOTUS rulings ever.
And it’s a Rube Goldberg mess mostly because of Rethug intransigence; though Obama’s hyper-elastic spine cannot be held totally blameless.
JzB
Top several WORST, that should say.
JzB
their friends in Health Care have better memories
I wonder about the behind the scenes pressure from Big Pharma, Ins Cos. etc.
Given the effects of MLR, on ballance, how does all this play out for them?
http://www.angrybearblog.com/2012/06/mandate-no-mlr-si-heard-here-frist-sic.html
JzB
comment lifted from Leftwing Nutjob:
Bob McDonnell on MSNBC: Mandate is the largest tax increase on the middle class in history. Massive power grab, also.
Fox News endlessly showing clips of Obama saying he will not increase taxes on the middle class.
The narrative is set. Tax increase on middle class.
Roberts is a clever one, he is.
So I wonder what the timeline is now?
http://www.whitehouse.gov/healthreform/timeline
2012
Improving Quality and Lowering Costs
Linking Payment to Quality Outcomes. Effective October 1, 2012. Encouraging Integrated Health Systems. . Effective January 1, 2012. Reducing Paperwork and Administrative Costs. effective October 1, 2012. Understanding and Fighting Health Disparities. Effective March, 2012.
Increasing Access to Affordable Care
Providing New, Voluntary Options for Long-Term Care Insurance. Effective October 1, 2012.
Improving Quality and Lowering Costs
Improving Preventive Health Coverage. Effective January 1, 2013. Expanded Authority to Bundle Payments. Effective January 1, 2013.
Increasing Access to Affordable Care
Increasing Medicaid Payments for Primary Care Doctors. Effective January 1, 2013. Additional Funding for the Children’s Health Insurance Program. Effective October 1, 2013. 2014
New Consumer Protections
No Discrimination Due to Pre-Existing Conditions or Gender. Effective January 1, 2014. Eliminating Annual Limits on Insurance Coverage. Effective January 1, 2014. Ensuring Coverage for Individuals Participating in Clinical Trials. Effective January 1, 2014.
Improving Quality and Lowering Costs
Makes Care More Affordable. Effective January 1, 2014. Establishing Health Insurance Exchanges. Effective January 1, 2014. Small Business Tax Credit. Effective January 1, 2014.
Increasing Access to Affordable Care
Increasing Access to Medicaid. Effective January 1, 2014. Promoting Individual Responsibility. Effective January 1, 2014. Ensuring Free Choice. Effective January 1, 2014.
2015
Improving Quality and Lowering Costs
Paying Physicians Based on Value Not Volume. Effective January 1, 2015.
Noni
Yeah. I just posted a whole separate post on the meaning of the Medicaid part of the ruling, and why I think it’s really narrow and will have almost no effect at all.
I don’t understand your comment at 156, sorry.
Ron Brownstein at National Journal has a good post on this. Basically the majority of uninsured are in the red states who challenged the law. Assume a good number of them are not going to be covered by private insurance. For them, it was Medicaid or no coverage. So what are the odds those red states elect to expand Medicaid?
I think the law has dodged getting completely run over by the freight train. But in substance, in terms of expansion of coverage and redistributional character, because of the Medicaid ruling, I think, to continue with the metaphor, one of its limbs got chopped off. The middle class favoring provisions are all intact. But not the poor-favoring provisions. They are now at risk in lots of places.
That “?” after “I quoted SCOTUSnblog is a typo. I definitely was quoting SCOTUSblog.
The penalty for not getting health care was in the law from the time it went to Congress. Roberts upheld it under Congressional taxation authority, but he didn’t change the nature of the thing. He just offered a constitutional justification. He is the only justice who based his justification on congressional taxing power. The four other “aye” votes all accept that the Commerce Clause justification is valid.
This is a truly stupid case of “see, it’s a tax” argumentation. Not that GOP apologists ever shy away from empty arguments with scare-words sprinkled on top.
I don’t watch MSNBC and I don’t know who Bob McDonnell is. A Joe Scarborough wannabe, maybe? But the alternative to paying the 2.5% tax is to buy healthcare insurance. And what Roberts actually said is that its purpose, which is really to persuade people to buy healthcare insurance if they can afford to do so, is enough like a tax to qualify under Congress’s taxing power, but because its purpose is not mainly to raise revenue, it isn’t sufficiently a tax to qualify as one under the “jurisdictional” Anti-Injunction Act.
And is a 2.5% tax really the largest tax increase on the middle class in history? Didn’t some Republicans say that kind of thing about Social Security in the ‘30s and Medicare in the ‘60s?
I think the chance of that argument working with the public is just about zero. I don’t think people care whether it’s called a tax or not; this won’t change anyone’s opinion one whit. And I’m wondering whether people think that the mortgage deduction is a tax on renters.
i don’t watch MSNBC and I don’t know who Bob McDonnell is either…the point is, i think, is that the way this is being played on Fox, it will become part of the Tea Party campaign to take over in november…
& i cant say i agree with the commenter that i quoted, who seems to believe the November election results was what roberts intended to influence in this ruling..
Oh, I don’t doubt at all that this is the gimmicky distortion that the tea party will put on it. I just don’t think it will change a single vote. What does surprise me is that Fox wingnuts apparently believe that Roberts is as diabolical as I think he’s been at times. I just disagree—strongly—that in this case, that’s what he was being.
more scuttlebutt:Moving to Canada because of Obamacare? People on Facebook are posting on comments from conservatives that they are moving to Canada because the supreme court upheld the Affordable Care Act!
Bev:
Check to see if they are discussing states accepting funding.
I think it’s too early for any decisions to be made, but I’m sure that in the next few days there’ll start to be comments from governors like Walker in Wisconsin and what’s-his-name in Florida.
Hopefully, they’ll move before the election. Especially the ones from swing states.
Beverly
actually i was commenting on your comment that your total victory was spoiled by the absence of a punishment for not buying insurance. sounded to me like it was the mandate you liked all along, and the health insurance for all was not sweet enough for you without it.
the fact that you were quoting scotusblog has nothing to do with your reation to it. the fact that you even thought you could have a mandate without a sanction tells me you don’t examine consequences very deeply.
first deflower her, then devour her. then celebrate your victory.
rjs
well it IS a large tax increase. with a twist. instead of paying it to the mean old government you get to pay it to those nice folks at Aetna.
god knows they can use the champagne.
In rereading my comment, I didn’t understand it either. So I deleted it. But what you say is right, Mark.
I think, though, that the federal government could entice nearly all the states by offering additional funding also for education (including for the state university system). The ACA opinion prohibits only tie-ins between the Medicaid expansion and money that the state already was getting. And most (but not all) the governors who are saying they might not agree to the Medicaid expansion are saying that they fear that it would require the state to either reduce funding for education (including the universities) or raise taxes. So a tie-in of that sort could make a difference.