The Roberts Decision in the Healthcare Case

Thank you. I was looking for a non lawyer clear explanation. I will pass this around.

I didn't lose sleep over the legal arguments because I assumed the decision was political and the legal arguments were merely contrived to justify the politics.

I'm not happy with the decision, as I am in the category that may not qualify for expanded Medicaid but certainly can't afford the private insurance -- and even if they GAVE me the private insurance, I still would not be able to afford to go to the doctor because of the deductibles.

As you put it, "this product will in most cases be too expensive to use." EXACTLY !

Now consider this a minute and the sophistry behind it. Roberts thought that the mandate's universal application (and penalty) under both the Commerce Clause and the Necessary and Proper Clause represented a vast and inadmissible expansion of Congressional power. But call it a tax, have the IRS collect it, and he has no problem with it.

Article I, Section 8 of the constitution lists the 17 enumerated powers of congress. that is, congress only has the power to enact legislation as long as it is authorized by one of those 17. the necessary and proper clause at the end of Article I, section 8, just says that congress has the broad authority to enact any legislation that is "necessary and proper" to execute its enumerated powers.

the power to regulate interstate commerce is one of those 17 enumerated powers. the power to levy a tax is another one of those 17. each of those powers represents a separate basis for congressional action, and each works a little differently. the commerce power is about the allocation of power between the state and federal government. that is, congress gets to regulate interstate congress, whereas states get to regulate purely intrastate commerce. in other words, the commerce power is a limited power. if congress tries to regulate something that is not interstate commerce, that attempt is unconstitutional.

the tax power does not have the same limitation as the commerce power. the federal government's tax authority is concurrent with the authority of states to levy taxes. thus, a gallon of gas has both federal and state taxes on the same item. my income is taxed by both my state and the federal government. for the commerce power if the federal government has the power to regulate it, the state does not, and vice-versa. for the tax power, nothing is excluded from the power of the federal government. it can levy a tax for anything that passes congress (provided it doesn't violate another part of the constitution. taxing only black people, for example, would violate the equal protection clause)

that's why your argument critical of using the tax power to justify the individual mandate makes no sense. you write: You could penalize all voting age adults for not having a photo voter ID, tea drinkers for not drinking coffee, cat owners for not being dog owners. If the purpose doesn't matter, which is Roberts' position, there really is no limit to this. but that is all completely correct. there is nothing unconstitutional about congress passing a tax on all tea drinkers. of course, i doubt if anything like that would ever pass. but the tax power is not limited like the commerce power. which is why congress regularly levies a tax to encourage things it likes (like home ownership) and discourage things it doesn't like (like cigarettes)

you're argument also goes off the rails when you transition to the medicaid expansion portion of the opinion. medicaid expansion was based on another enumerated power, the spending power. congresses authority to authorize spending is also pretty broad. and the supreme court has always upheld congresses right to attach strings to the money it spends. in other words, it can tell a state, we will give you x dollars, but only if you do x, y, and z. that's essentially how medicaid works. congress pays states block grants of money, with the condition that the states will use the money to set up a free medical insurance program for poor people.

the medicaid portion of yesterday's decision was about the expansion of medicaid that was made part of the PPACA. the health reform law required states to expand coverage of medicaid so that it covered people who are less poor than are currently covered under the pre-PPACA law. congress provided extra money to pay for that expansion. however, the law said that if a state did not cover more people as required by the PPACA, states would lose not only the extra money to pay for the expansion, but also the money to administer the original non-expanded version of the program. this was meant as an extra incentive to get states to expand coverage for that single payer program. but the roberts court ruled that under the spending power congress could not retroactively add additional conditions to the original medicaid grants. they only threat congress could constitutionally make is to take away the new additional money to pay for the expansion.

in other words, the medicaid expansion holding is about a different enumerated power than the individual mandate. because it's about a different enumerated power, the rules that apply to it work completely differently. the court has now held that under the spending power, congress cannot retroactively impose new conditions on the money it spends. that holding has no bearing on the taxing power or the commerce power.

find the corporatist nature of Liberals as revelatory? Liberals have always been capitalists and corporatist. If you don't believe me Google Lenin on Liberalism, it has never been "of the Left" no matter how many confused people say it is.

I think you need to go read some of the opinion so that you can see for yourself what Roberts' thinking is.

i did read it. i am a lawyer who specializes in employment law and employment benefit law (some of my clients are union health plans). when the decision came out yesterday, a pdf was emailed to all lawyers in our firm.

I am not sure why you feel the need to explain enumerated powers as if I did not know what these are.

because your analysis conflates three different enumerated powers (the commerce, tax and spending powers) without any recognition that each one operates under different rules. once you recognize that, most of your argument falls apart.

Its application fails not because of a state vs. interstate distinction but because there is no commerce to which it can be applied. The problem is precisely that it would regulate a commerce which currently doesn't exist and which it would coerce into existence. That is the reason the mandate falls outside the purview of the Commerce Clause.

sure, that is your argument. but it completely ignores the point of the proponents of the idea that the mandate is supported by the commerce clause, and that is that everyone must take part in the health care system at some point in their lives, whether they like it or not. if you're found unconscious on the sidewalk, you will be taken to a hospital. not paying for health insurance doesn't take you out of the health market. it just means that other people (taxpayers, and people who do have insurance) end up paying your bills if you can't afford them.

and, for that matter, the "there is no commerce" argument doesn't make sense in the context of how the commerce clause has been interpreted for the past 220 years. there is always commerce because commerce is defined extremely broadly. people moving around is commerce (and people crossing state lines is interstate commerce). to say that any human action does not involve commerce ignores how that term is used in the constitution.

The mandate penalty/tax taxes people who do not engage in the activity. It would be like taxing people for not smoking. Most people would find such a tax arbitrary. Indeed most would see it, correctly, as a penalty.

yes, but so what? it is legal for congress to levy a tax as a penalty. nothing in the constitution prevents that, nor in 220 years of tax power jurisprudence. you're not making a legal argument here, you're just saying you don't like the idea. the bottom line is that things have never been held to be unconstitutional because congress exceeded its power to tax. it's tax power doesn't have an inherent limit. the only way a tax levy is unconstitutional is if it violates some other provision in the constitution.

which is in contrast to the commerce power. the commerce power is inherently limited because it is about balancing the authority to regulate between the state and federal government. the activity/inactivity argument (an argument that i don't buy, but apparently the 5 most conservative members of the supreme court do) only makes sense in the context of the commerce clause. congress can tax inactivity. there's nothing inherently unconstitutional about that.

With regard to the Medicaid section, you are mistaken. Roberts would allow for cuts, if they are not onerous, to existing federal programs to encourage state compliance. See page 50 and following of the opinion beginning with the discussion of South Dakota v. Dole, the case I allude to in my post re cutting highway construction funds to states.

keep reading past the Dole case. when roberts turns to the application of the case law (both dole and other prior cases), he focuses on the fact that the ACA threatens to take away not just the additional medicaid funds provided by the health care act, but also to retroactively take away all of the state's medicaid money if it refuses to expand the medicaid program. see this sentence:

"As we have explained, '[t]hough Congress’ power to legislate under the spending power is broad, it does not include surprising participating States with postacceptance or ‘retroactive’ conditions.'" (p. 60 of my copy of the decision)

roberts then clarifies what he is saying in part B:

"Nothing in our opinion precludes Congress from offering funds under the Affordable Care Act 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. 61)

again, what roberts concluded was that congress could threaten to take away the new medicaid funding from states that did not implement the medicaid expansion. but it could not threaten to take away all of its medicaid funding, because that would be a retroactive alteration of the earlier spending deal between the state and federal government.

More legal analysis from others;
This one disagrees about the ACA mandate not being covered by the commerce Clause.

This one points out Hugh's point about the corporatist nature of the SCOTUS and how the ruling is just plain bad.

I find it humorous all the back and forth about the legalities associated with the ruling when the actual travesty is the ACA itself.'When the foundation is faulty, don't expect the house to keep standing'; as long as profitability is insisted on, then real healthcare will suffer.

A good example of non-profit healthcare is Sarrell Dental Center(s) in -of all places- Alabama; it was even able to fend off the entrenched Alabama dental interests whose main objection was the guy running Sarrell wasn't a dentist.

So Roberts twists himself into a pretzel to make the penalty for not buying something into "a tax". Newhall, a doctor and a lawyer, agrees that politics of corporatism ruled the day.

With this bizarre twisting of words, the Supreme Court has revealed the nature of 21st century American political thought. Those who make, interpret and enforce the laws no longer lie on the ‘left-right’ political continuum. Instead, they are in effect at ‘right angles’ to that continuum. The ideology that drives the Supreme Court, the political administration and the Congress is not Conservative or Liberal but can best be described as “Corporatist.” This is the ideology that affirms that “corporations are citizens, my friends.” it is the ideology that drove the Roberts Court to the odious Citizens United decision. it is the ideology behind a bailout for banks that are ‘too big to fail.’ And it is the ideology that allows Congress to pass a law like the ACA that is essentially written by a favored industry. The Corporatist ideology allows the Supreme Court to uphold the ACA despite the obvious and glaring consequence: forcing someone to buy health insurance is like forcing someone to buy a used Rambler — it’s a shoddy product at an inflated price, but you must pay a tax or swallow your anger and buy it from the smirking dealer down the street.

His suggestion if you are a stock bettor is to buy small health insurance company stocks as they get gobbled up and join the too big too fail gang.