(UPDATE XI) Court Upholds Individual Mandate As Roberts Sides With Liberal Justices
as increasing taxes on those who have a certain amount of income,
but choose to go without health insurance. Such legislation
is within Congress’s power to tax. ~ CHIEF JUSTICE ROBERTS
America’s great shame — and there is much shameful about this once great nation these days — is that it has been alone among industrialized countries in not offering its citizens access to affordable health care. Consequentially, over 40 million people have no health insurance, emergency rooms are overwhelmed with people who have no doctor to turn to when they become ill, and the infant mortality rate is unconscionably high because so many women are unable to afford prenatal care.
The Affordable Care Act, better known as Obamacare, was a huge step toward bringing the U.S. in line with those other industrialized countries by creating a more rational health insurance market while stopping well short of establishing a government-run program such as those in England, Canada and elsewhere.
Obamacare would help an estimated 33 million people buy health insurance, cap insurance premiums for the poor, help those under age 26 stay on their parents’ health plans, protect those with pre-existing conditions, require insurers to spend most of every premium dollar on medical care, as opposed to administrative and advertising costs, accelerate a decrease in health care costs, and provide generous tax credits to small businesses who provide health insurance for their employees.
The 2010 law would require adults to pay either a modest $695 or 2.5 percent of their annual income, whichever is greater, through what is called an individual mandate, beginning in 2014. The mandate is a recognition that some people will not be able to afford insurance and aims to keep down the cost down through a mandatory surcharge on people who can afford it. There would be a modest penalty for those who refuse to participate.
But to most Republicans, Obamacare isn’t about health care, let alone helping their fellow citizens from cradle to grave. In their view, the law and especially the individual mandate provision is an unconstitutional affront to the almighty free market. In other words, if people have an accident, get sick or contract diseases and cannot afford to be treated, that’s their tough luck. Really tough luck at a time when millions of people remain out of work. Never mind that the profits-always-trump-patients crowd would never acknowledge that the almighty free market has resulted in a staggering levels of health care spending per capital in the U.S. that is the highest in the industrialized world and more than double most nations.
Requiring Americans to buy health insurance is a violation of their “freedom and liberty,” according to Representative Michael Bachmann, a vociferous opponent of the law and, with Sarah Palin on the sidelines, a leading peddler of the death panel myth, which has it that under a provision of Obamacare federal bureaucrats would rule on whether you and I should live or die if we are gravely ill.
That was the stark ideological divide — the Democrats extending a helping hand and the Republicans slapping it away — confronting the U.S. Supreme Court when it agreed to rule on a lawsuit seeking to strike down the individual mandate brought by 26 states — all not coincidentally led by Republican governors.
The plaintiffs asserted that the individual mandate is unconstitutional because Congress overstepped its bounds in regulating interstate commerce by requiring people who lack health insurance to purchase it, while the provision in the law expanding Medicaid to cover millions of additional low-income people is an unconstitutional use of power over the states. The Obama administration responded by arguing that because everyone needs medical care at some point in their lives, they already are engaged in the economic activity of deciding how to finance their care and the Affordable Care Act merely regulates how they must go about performing that activity.
Based on the tone and substance of the justices’ questions and comments over three unprecedented days of oral arguments in March, it appeared that the relatively liberal Justices—Ginsburg, Breyer, Sotomayor, and Kagan—would vote to uphold the mandate; Justices Scalia, Thomas, and Alito would vote to strike it down; and Chief Justice Roberts and Justice Kennedy were potentially swing votes. The cipher Thomas remained mute during the arguments, as has long been his custom, but his vote would be easy to predict.
The court’s conservative majority has revealed itself to be a de facto arm of the Republican Party because of Citizens United, a decision that in effect allows corporations and wealthy individuals to buy elections, and other decisions based on ideology and not law. As recently as Monday it struck down a Montana campaign finance law that would have circumvented Citizens United in an effort to put an end to a deeply-rooted culture of political corruption in that state that allowed ranching and mining interests to . . . yes, buy elections, while in siding with a minority of justices in overturning Arizona’s draconian anti-immigrant law Justice Scalia unleashed a vindictive and deeply unethical attack on President Obama’s amnesty for young illegal aliens born in the U.S.
The so-called smart money had it that in ruling on the Affordable Care Act, the high court would at least “sever” the individual mandate while letting the rest of the law stand, if not throw out the entire law. A minority, myself included, hewed to the view that a majority would take a more sensible approach and allow the law to stand because it is, in essence, little different from requiring Americans to pay income taxes or contribute to Social Security. Or to riff on a Republican value, it is about personal responsibility.
I am happy beyond belief to have been correct as the Supremes ruled 5-4 this morning that the individual mandate is not unconstitutional and upheld the entirety of Obamacare with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read. Chief Justice Roberts, apparently drawing on his background as a strict constitutionalist — or as “an institutional conservative rather than a radical reactionary,” as Andrew Sullivan put it, joined Ginsburg, Breyer, Sotomayor, and Kagan.
There were not five votes to uphold the law 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 — Roberts, Ginsberg, Sotomayor, Breyer and Kagan — did agree that the penalty that someone must pay if they refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. ax if they don’t. The other justices split 4-4, with four wanting to uphold it as a mandate, and four — Kennedy, Alito, Scalia and Thomas — opposed to it in any form.
Lyle Denniston, the dean of Supreme Court journalists, writes at SCOTUSBlog that:
“Essentially, a majority of the court has accepted the administration’s backup argument that, as Roberts put it, ‘the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to IRS.’ Actually, this was the administration’s second backup argument. Its first argument was the Commerce Clause, the second was the Necessary and Proper Clause, and third was as a tax. The third argument won.”
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.
The decision, which affirms the greatest achievement of President Obama’s first term, is an enormous victory for he and Congressional Democrats.
In addition to the political reverberations, the case helps set the rules for one of the largest and fastest-growing sectors of the economy, although it also will be a rallying point for conservatives — which is to say Republicans. The health care debate remains far from over and Mitt Romney, the presumptive Republican presidential nominee, has promised to undo the law if elected, although his argument that Romneycare was different than Obamacare is now fatally wounded.
Under Roberts, the court has delivered numerous major victories to conservatives in addition to Citizens United. It could take up other major issues to which conservatives are opposed, including affirmative action, same-sex marriage and the Voting Rights Act, in its next term. And while conservatives were angry that Roberts, a George W. Bush appointee, had betrayed them, other presidents have regretted some of the decisions made by their appointees, most notably Richard M. Nixon’s appointees forcing him to hand over the Watergate tapes that sped his resignation from office.
David Bernstein, writing at the Volokh Conspiracy, notes that at first glance Scalia’s dissent reads like it was originally written as a majority opinion:
“Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion . . . to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA?”
Notes Josh Marshall at Talking Points Memo:
“[W]e may learn that President Obama sacrificed his presidency to push through this piece of legislation — the Dems already lost Congress over it. But presidencies are for doing important things not just for getting elected to second terms in office. And I strongly suspect that even if Mitt Romney wins and gets a Republican Congress, they still won’t be able to get rid of this law.
“That counts. That matters.”
Reaction from opponents of Obamacare was fast and furious while Democrats seemed more relived than celebratory.
“It’s never been more important that we elect a president who understands the marketplace and will make job creation his top priority,” said Governor Bob McDonnell of Virginia, the chairman of the Republican Governors Association. “By replacing Barack Obama with Mitt Romney, we will not only stop the federal government’s health care takeover, but will also take a giant step towards a full economic recovery.”
Tea Party Express, a group opposed to the law, issued a statement saying it is committed to repealing it.
“The Supreme Court ruled to uphold this unprecedented intrusion of the federal government into our personal health care decisions. The American people still reject this legislation as bad policy and unwanted government interference with their lives.”
“We will continue to implement this law and we’ll work together to improve on it,” said Obama, speaking somberly in the White House East Room, the same setting he used to announce the 2011 death of Osama bin Laden. “What we won’t do — what the country can’t afford to do — is re-fight the political battles of two years ago or go back to the way things were. . . . It’s time for us to move forward.”
Senator Harry Reid of Nevada, the majority leader, took to the Senate floor to praise the court, saying “the rule of law” had been place “ahead of partisanship.” Reid suggested the law would be tweaked in Congress to address some unpopular elements. “We will do that working together,” he said. “Our Supreme Court has spoken,” he said, cautioning against Republicans’ insistence on legislative repeal.
Michelle Bachmann, attempting to speak outside of the Supreme Court, had to shout over chants of “four more years.”
Click here to read the decision.
decision on his iPad courtesy of Garyhe.
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I am interested to see how the left will deal with the fact that the man they’ve attacked for the past years is now the key vote in two major liberal leaning rulings.
Great news for the American people. I know “some” will disagree
Pat:
An interesting point but little changes when you take the long view. As I note above, I had anticipated — as few people were willing to do — that Roberts would come down on the side of the four liberal-leaning justices because he is a strict constitutionalist.
That being so, he would have to conclude — and did — that Congress’s taxing power trumped any violation of the Commerce Clause.
I really like the decision. the mandate was unconstitutional and I had a serious problem with it… the tax side… something else.
As a non-attorney American, this makes sense to me.
Pat:
The NYTimes quickie reaction piece includes this:
“Under Chief Justice Roberts, the court has delivered a series of major victories to conservatives, including the Citizens United campaign finance decision, which on Monday it declined to reconsider. In next year’s term, it could take up other major issues, including affirmative action, same-sex marriage and the Voting Rights Act.”
I don’t think its a shame that we don’t provide healthcare to the uninsured. I think the shame was that we did provide for it, as people who show up at a hospital must be treated, but more we didn’t think through like adults how that was going to paid for overall. We sorta made the weird decision to provide services, basic and emergency in nature though they be, and just assumed the system would absorb it. This is a step in the right direction, and while it does have many of the benefits you mentioned, how its going to lower rising healthcare costs is beyond me. The pharmacutical and medical device and services industries are massively profitable and will continue to gouge American consumers of healthcare until someone steps in and forces them not to. The AMA needs to be reigned in as the arbiters of who can practice and who can’t, thereby increasing salaries for various specialties.
I love the fact that this compromise bill was fought tooth and nail by conservatives, only to have this backfire on them. The courts basically said go ahead, but its gotta be a tax. It just got easier to get to a single payer system, which is something that WILL lower costs.
Slamfu..nothing will lower cost until the medical profession is brought under the governments employment like in Canada and England and price controls are placed on suppliers. When one thinks about the cost of a stent used in cardiology procedures costing the hospital or doctor $2,000 and that stent being smaller than a pen that holds a band onto a watch, nothing will reduce cost until that is placed under government cost controls. (And in most cases, placement of stents usually require multiple stents to unblock arteries, one usually does not do the job).
Cost will continue to rise, insurance companies will continue to raise premiums since there is no caps and doctors will continue to practice defensive medicine as nothing changes with this bill.
slamfu:
I’m with you on how the U.S. got itself into such a pickle.
Costs presumably will be lowered because of the controls in Obamacare effecting insurers and Medicare/Medicaid. As it is, my Medicare premium already has dropped about $25.
Shaun..This is what SCOTUS is suppose to do. Piss off most of the people some of the time. Where Citizens United made the liberals underwear rot off, this one will make the conservatives rot off. Future decisions will continue to do the same.
Liberals will continue to complain and now the conservative can begin to complain.
One thing for certain, Obama needs to keep his mouth shut in his next State of the Union address to congress about SCOTUS.
RP Canadian doctors are not state employees. 30% of Canadian doctors actually do private or non-reimbursed care.
Shaun..Was that drop of $25.00 Part A, Part B or Part D?
I would suggest researching how many doctors accept medicare, how many have decided not to accept Medicare over the past couple of years and how many are contemplating dropping acceptance of Medicare. With the massive reduction in Medicare funding to cover the ACA, you might find it hard to find a doctor accepting that coverage in the future.
Rudi..Is that covered by the Canadian health insurance coverage or private pay?
Rudi..Is there a cap on the amount of reimbursement each Canadian doctor can receive from the heathcare system. I heard that there was and some doctors stop practicing once they hit that cap. Wass that true or was the “internet lies” like so much we read?
RP:
Parts A and B.
Shaun, since I have Medicare Advantage and the premiums are much lower for Part B and D, I didn’t pay much attention to the traditional Medicare premiums.
However, there have been a number of articles in my professional journal concerning doctors that have begun dropping acceptance of Medicare due to the decreasing reimbursements and that should be a concern to anyone at or near the Medicare age.
RP:
That is indeed a concern for folks like ourselves.
I recently made the rounds of my doctors — a GP and a rheumatologist — and both said they would continue to take Medicare patients so long as reimbursements did not drop too much.
What truth there is in the mythical long waits for Canadians in health care seems to be due to the lack of doctors. Until the medical profession lifts its restrictions on the number of medical students, we will see a shortage of doctors that take Medicare patients.
Right now large cities have adequate numbers of doctors – and most of them are trained in other countries. I can’t speak to the quality, but I’ve had no problems.
RP perhaps you have a better handle on this.
I have to sat that the ruling struck me as a bit different. It clearly said any “mandate” was unconstitutional. It just so happens you can get the same result with a tax and basically that is what the mandate really was so it’s constitutional. While it keeps the health care law alive it also gave a strong limit to the commerce powers which was a major part of the issue for may.
EE- yes, plus they’ve drawm a line in the sand regarding the reach of the Commerce clause. I recall early on, there was a lot of speculation that Roberts might join withnthe liverals but then take the opinion for his own authorship in part so that he might write it as narrowly as possible and constrain future legislators. That seems to be the case from what I’m reading so far.
One important distinction about upholding this law under taxing powers is that taxation is politically unpopular, so that itself is a restraint. In fact I’m sure the political spin from Romney now will be to hammer Obama for breaking his promise to not raise taxes on the middle class.
Oops…lol, liverals = liberals.
EEllis:
Your interpretation is accurate and as the day goes on, more an more pundits are noting that the “victory” for Obama may not extend beyond the headline.
CStanley:
Liver is good for you.
I am among those celebrating the decision. The President should be proud, and frankly he and his party should proudly take the originally-derogatory term “Obamacare” and make it their own.
That said, I would like to disagree with those who say we can’t get costs under control unless we put the medical profession under government employment. Nonsense. Look all over Europe and you will find that many of those countries rely almost entirely on PRIVATE doctors and PRIVATE clinics. Germany, Switzerland, and the Netherlands just for start. Japan and Taiwan too. These countries ALL spend less per capita on health care than we do, ALL rely primarily on private markets for delivery of service, and everyone is covered and no one goes bankrupt from medical bills.
Obamacare is imperfect and will need work, and it will need to survive the next legislative session, which makes re-electing the President a top priority for those of us who support health care as our biggest issue.
Dean:
Amen.
BTW-Great photo, Shaun.
I recognized the smile…
… Now we have two.
Thursday, June 28, 2012 11:07:29 AM
NEWS ALERT
The text of the Supreme Court’s full opinion upholding the health-care law’s individual mandate can be read here:
http://www.washingtonpost.com/blogs/the-fix/post/supreme-court-health-care-decision-full-text/2012/06/28/gJQAueJ88V_blog.html?wpisrc=al_comboPNE_p
I pay hardly anything for the best health care on this planet.
So, “technically,” I shouldn’t give a rat’s ass whether the ACA is kept or overturned If it is kept I may even have to dish out a few more dollars in taxes.
I say, technically, because, as the President says:
“Earlier today the Supreme Court upheld the constitutionality of the Affordable Care Act,and in doing so, they reaffirmed a fundamental principle that here in the United States, the wealthiest nation on earth … that no illness should lead to any family’s financial ruin.”
Here’s some local reaction from those who have “Romnicare.”
boston.com – Local reaction: The Affordable Care Act is upheld
“Congress acted in 2009 for the same reasons our legislature and Governor Romney acted in 2006, because health is a public good, and everyone deserves access to it,” Governor Deval Patrick said.
Governor Deval Patrick said during a press conference this afternoon that the court’s decision is “a victory for the proper role of government and a victory for our system of constitutional checks and balances.”
The Greater Boston Tea Party said in a press release that the group is “extremely disappointed” in the court’s decision.
The Massachusetts Hospital Association e-mailed a statement saying the group applauds the decision
Dr. Stephen Bowell, chief executive of Fenway Health said the law, and the court’s decision, is important for people living with HIV/AIDS and for people who are lesbian, gay, bisexual, or transgender.
More than 62,000 seniors and people with disabilities in Massachusetts will continue to see significant savings on their prescription drugs because the law was upheld. A provision in the law helps people on Medicare with the costs of their prescription drugs when they reach the so-called “donut hole” coverage gap.
Robert Friel, chief executive of life sciences tool manufacturer PerkinElmer in Waltham, said the court decision provides certainty for the business community.
Andrew Dreyfus, chief executive of Blue Cross Blue Shield of Massachusetts called the decision “an extraordinary moment.” “There’s a sense of vindication today,” he told Globe reporter Robert Weisman. “To us, this validates all the work we did here in Massachusetts over decades to expand health care to all citizens. So now all Americans will have the same health care protection and benefits that Massachusetts citizens have had for years.”
Ooops… Looks like my blockquote and list didn’t get them all. All comments below the blockquote are also part of the article.
RP- Traditional Medicare has a higher acceptance rate than any private health insurance plan or Medicare Advantage plan. Most Medicare Advantage plans pay doctors less than traditional Medicare. All Medicare Advantage plans do targeting to try to sign up only younger, healthier patients. All Medicare Advantage plans cost Medicare 14% more than patients on traditional Medicare. The miracle of the for profit health insurance industries.
All health care insurance in Germany is provided by one of about 250 private community rate based non-profit insurance companies. Most are set up by unions, trade associations or a few large companies. Anyone can buy their insurance from any of the companies. Health care costs are negotiated each year by the providers with the Lander, the 16 state governments.
Just a very few normally young rich people buy insurance from private for profit insurance companies. It is cheaper when you are young and considerably more expensive when you are older. Once you have bought this kind of insurance you must continue to buy it. You can’t go back into the state system.
Costs in the state system was about 60% of what my company paid in the US when last I was in a position to check, about five years ago, but the coverage was complete, virtually no copays, includes long term care, rehab etc.
Your company was required to pay half of the premiums. Most companies pay all of it for you. The state pays the premiums if you are unemployed.
This is the Bismark plan that the Germans have used since the 1880′s. It is the most common system used in Europe. The providers are all private.