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.”


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.


The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate.


“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.)


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.  !!!


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.  


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. 

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.

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.  


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?