In a surprise, SCOTUS Chief Justice John Roberts saves “Obamacare”

In a surprise, SCOTUS Chief Justice John Roberts saves “Obamacare”

I was checking at 9:15am central time, which announced the Supreme Court of the United States found the Affordable Care Act unconstitutional. 

Not quite “Dewey Defeats Truman” because CNN promptly corrected its headline, which I first noticed at 9:35am, when I was started to search for the text of the 10th Amendment.  

This is my initial draft of my thoughts when I thought the Supreme Court found the law unconstitutional:

So now what? 

Thursday, the Supreme Court of the United States found President Obama/Nancy Pelosi’s Affordable Care Act (dubbed “Obamacare”) unconstitutional.  The Court ruled that Congress cannot require individuals to buy health insurance. 

One shouldn’t be surprised by the ruling.  Looking at the 10th Amendment and the push and pull between states’ rights and the rights of the federal government, a Congressional requirement that people buy health care coverage or be taxed, seemed to me at least, a federal overreach. 

 Upon turning to the internet to find the text of the text of the 10th Amendment, I learned of’s mistake.  The Affordable Care Act had been ruled, in a 5-4 vote, constitutional. 

Now that I know the Supreme Court upheld the law, what I now find more interesting, is how the SCOTUS voted.  Many legal experts thought the ruling would come down 5-4, with the liberal wing of the Court finding in favor of the law, the conservatives ruling against the law with Justice Anthony Kennedy acting as the deciding vote between the wings.  Justice Kennedy finds himself in that position in many cases before the Court.    

The Court's four liberal justices (Justices Ruth Bader Ginsburg, Steven Breyer, Sonya Sotomayor, and Elena Kagan) ruled that the individual mandate could be upheld as part of Congress' power to regulate interstate commerce.  Justice John Roberts disagreed with that argument, but found in favor of the law, ruling that the payment made to the government for failure to buy health insurance is actually a tax (which is something Congress has the power to levy). Under the law, people who do not have health insurance will have to pay 1% of their income to the IRS starting in 2014.

In this case, Chief Justice John Roberts joined the liberal wing of the court.  Roberts’ vote on the Act decided the constitutionality of “Obamacare.”  Justice Kennedy read from the bench that he and the other three conservative justices (Justices Antonin Scalia, Clarence Thomas and Samuel Alito) found “the entire Act before us invalid.”

For all the anger and partisan bickering “Obamacare” has caused since 2009, the law only affects roughly 6% of the population: those who will be required to buy health insurance in 2014.  Also, many of the popular provisions of the law have already gone into effect.  Millions have already taken advantage of those provisions, including the provision allowing children to stay on parents’ health insurance policies until the age of 26 and the provision disallowing insurance companies from turning away patients with preexisting conditions (this only applies to children currently). 

Hopefully (although it’s doubtful) now that the Supreme Court has ruled, maybe the right can focus its anger on the portions of the law it finds untenable rather than the entire law.  The thing about the debate that irked me the most was seeing John Boehner and other leading Republicans consistently saying that they agreed with Democrats on 80% of the provisions.  My question during that debate was why didn’t they get together and cobble out an agreement based upon areas of agreement? 

(Granted, the 20% the parties disagreed upon was likely funding/implementation issues, but I don’t recall a debate where the parties said: this is what we agree upon, here is where we disagree, what do you think?  The debate was a demonization of Obamacare and by extension, Obama, or you stood behind the president.) 

And it shouldn’t be about the president.  It should be a reasoned debate on the area of disagreement so the uninsured can have healthcare—if most of us agree that health insurance should be available to everyone. 

But, of course it is about Obama.  And now the November election will be about striking down “Obamacare” and terrorizing independent voters into thinking Obamacare will threaten the American Dream and therefore by beating Obama, that dream will be saved.  Nothing could be farther from the truth.  Even if Obama goes down to defeat in November, Obamacare likely isn’t going anywhere, unless we see a seismic shift in the Senate. 

But at least the election won’t be about the soul of the Supreme Court.  Constant 5-4 decisions based upon ideological divides, coupled with partisan bickering being included within legal opinions, had me thinking about the necessity of some sort of reform of the Supreme Court.  Some sort of reformation of the Supreme Court is still probably necessary, but at least for today, I like the feeling that John Roberts (and Anthony Kennedy) at least, could look at a set of facts, look at the Constitution and decide an issue on its merits.  If we had seven more Justices who were able to do that, the future of the Supreme Court would not be one of the factors I consider when I step into a ballot box every fourth November.

Filed under: National Politics


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  • And what of the President's claim that this is not a tax, which he made numerous times? This is the man you want to be the leader of the country? You do, then, subscribe to the "ends justifying the means"?

    Does it bother you in the least that just about anything now can fall within the Commerce Clause? Do you honestly believe that further down the line that the purchase of goods or services from private providers will not become a de facto definition of a tax.

    Here is a for instance: The Green Auto Mandate. Here, those who do not buy an electric vehicle from any manufacturer will be taxed accordingly and that tax collected, as will the tax or fine on Obama Care, by the IRS?

    Do you not see this as a very real reality? Does this scare you a little, or no? No is okay, because it will reflect a more collectivist belief, which you are entitled to. But perhaps you can see how this can scare others?

    Does individual freedom mean nothing? Does the government know best? Is everything, including the food we eat, now a political act?

  • In reply to Richard Davis:

    First, just because Roberts called it a tax, doesn't mean its a tax. That's his interpretation. Of course, Roberts is likely correct.

    I am not going to argue against your points because I agree with you. That's why I kept my draft in today's post, because I would not have been surprised had the court ruled it unconstitutional for the very agruments you made. Where does the regulation of interstate commerce end?

    Maybe the better question is in today's world, with the expansion of transportation and communication, do we need to revisit and limit the Commerce Clause? Congress may be able to regulate when and how I flush a toilet because the water comes from Lake Michigan, which is shared by toilet flushers in Indiana, Michigan and Wisconsin. Where does it end? I'm not sure it does anymore. What doesn't the Commerce Clause impact anymore?

  • In reply to Brian C. Thomas:

    You are reasonable in your thoughts. To answer your last question, I do not think it ends anywhere anymore, but will be subject to the political will of the moment.

  • I see that Richard Davis and Dennis Byrne foamed about the same irrelevant point.

    What counts is what was the scope of certiorari, in the briefs, and law the law clerks researched, not what the news media reported. Also, Roberts apparently adhered to the dictum that the presumption is that a law is constitutional. He also (according to reports) decided it in the way that the news media said was precluded based on questions at the argument, although I said a while back on Byrne's blog that it could be upheld on that basis, and it turns out I was right.

    If, on a purely partisan basis, Robert's result is unexpected, but maybe that's about it.

    The more interesting question is what foamers like the ones I described above are going to do now. The only major party alternative in the election is Romney, who said it was fine to do it in Massachusetts, but somehow unconstitutional for the feds to do it. Not that it isn't, where does that leave Romney? Can he look for votes on the basis that he wants to repeal something that he once championed? In the meantime, those two are stuck with hanging onto that the administration might have taken inconsistent litigation positions, not that that is unprecedented in legal history.

  • On the so called inconsistency point, the syllabus to the Supreme Court opinion (now available) says:

    But Congress did not intend the payment to be treated as
    a “tax” for purposes of the Anti-Injunction Act. The Affordable Care
    Act describes the payment as a “penalty,” not a “tax.” That label
    cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction
    Act. The Anti-Injunction Act therefore does not bar this suit.

    I'm sure the rest of Chicago Now bloggers are not going to comprehend that distinction.

  • Thanks Jack for actually reading the opinion (or at least the syllabus as the opinion is 193 pages). Roberts did expressly say that to force people into buying something is outside of the commerce clause and Congress does not have the ability to do that.

    On taxing someone if one chooses not to buy something, Roberts stated:
    "...shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy healthinsurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance."

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