Dear Joseph,This was an email I received from my senator right after what one NYT account called "a striking victory for the president and Congressional Democrats." Replacing the other one -- Arizona v. U.S. and the individualized sentencing for minors liable for life imprisonment to provide a pretty good week. Yes, there is the Montana campaign finance ruling, but that was a holding the line thing that was basically "you were wrong."
Just heard the Supreme Court's ruling -- such exciting news.
We don’t know all the details just yet, but this hard-fought battle was worth it. The Court’s ruling means we can expand coverage, lower out-of-pocket costs, allow students to stay on their parents’ insurance until they turn 26, and end insurance industry abuses like denying coverage based on pre-existing conditions.
I’m so proud of President Obama and so many of my colleagues in Congress who did the right thing -- even when it wasn’t easy. Please join me in telling President Obama that we stand with him.
Click here to sign my message to President Obama now.
And I’m thankful for all of you who gave your support.
Kirsten
And, well, there's the fact this ruling -- turning on CJ Roberts doing a CJ Hughes impression vs. a joint dissent who thought they were signing on to a latter day Cooper v. Aaron apparently (when did justices each sign on to a dissent like that? Scalia's name came first, but it was Kennedy's baby) has various possible landmines. "This is the first time the Court has ruled that federal spending legislation is impermissibly coercive." And, for some reason Breyer (who never finds a federal law that he doesn't like on federalism grounds) and Kagan signed on to that portion. The result might be certain states [I said "wingnut" originally, but find taht word unduly divisive though in this context, if nothing else, it would be pretty deserved] will deprive poor people of the Medicaid expansion since they get to do so since the feds paying for it unduly "coerces" them somehow under lines Justice Ginsburg (with Sotomayor all alone on this point) shows is hazy.
This is but one of the consolation prizes the Volokh Conspiracy "libertarians" have and it will at least lead to more litigation, if not problems with current law. Next, the majority (Roberts thinks it isn't dicta since it is why he winds up with a taxation ruling that might not otherwise be necessary to save the statute) actually accepted as constitutional law some of the ... sorry ... stupid arguments.
[And More: Some like John Dean appreciate that he showed some judicial restraint here, particularly the end result, which to be fair is somewhat right. And, in a fashion, the "I know it when I see it" nature of artificial lines drawn is basically loyal to the nice sounding (to some) but skin deep federalism jurisprudence of the last fifteen years. You appoint a Rehnquist clerk, you get that. But, I can only go so far on the bus, since as applied, the reasoning is still lame. Sometimes, it's a game of lesser evil.]
Now, though Ginsburg notes even with it (her opinion is great with lots of quotable gems) the "tests" aren't violated, we have an "activity" vs. "inactivity" rule for the Commerce Clause and somehow (at least here; cf. jury duty, militia service, tax preparation etc.) it helps make the means (quite necessary to regulate interstate commerce pursuant to the scheme at issue) "improper." Also, people here are being compelled while doing "nothing." No, they aren't. Also, unlike past precedent suggested, even nearly inevitable future conduct cannot be used to justify the commercial regulation at issue. Finally, it's okay to be somewhat wary of novelty and Roberts admitted this was only a possible red flag, but being able to apply new solutions to changing problems is a feature not a bug.
[And More: I'll add one thing here -- "The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power." This is silly, since the Congress isn't inventing the problem, they are addressing an existent one. Dealing with the resulting legislation is not a problem. The NPC section also is based on such dubious premises. The weakness of the reasoning given the breadth of the move is unfortunate, the fact the same thing is upheld all the same just makes the whole exercise look silly.]
Again, read Ginsburg's opinion which covers all this ground, there is no need to cover yet again such talked to death in various places. My only point here is to note that on some level I don't think she goes far enough. The absurdity of the "doing nothing" brigade is that there simply is no practical way people will not be "active" in this context. The relevant universe is not just specific people needing health care, though sure, this helps to show (along with enumerated limits and the democratic process) how upholding the law on Commerce Clause or Necessary and Proper grounds doesn't open up unlimited federal power. It is interaction with others who use health care, involvement in a market where insurance is a significant matter, it is dealing with the results to the national economy we all are part of medical bankruptcies etc.
Anyway, as a type of joker, Roberts said the PPACA is saved (mostly -- the Medicaid provision is hurt somewhat given its enforcement mechanism is weakened) because the only thing that happens if you don't get insurance coverage (not ... per the headnote ... "purchase insurance") is what functionally looks and acts like a tax. Not enough to block the USSC deciding the issue now under the Anti-Injunction Act, something suggested by some (including a few judges below) as reasonable, so he gets to do his part to promote maximalist doctrine via a minimalist opinion. But, remember, President Obama asked for a ruling now too.
The tax argument wasn't really taken too seriously though I personally (hey look it up) continuously thought it reasonable as did a few judges below in separate opinions. In fact, a comment by Ginsburg during oral arguments made me think even the liberals weren't that gung ho about it. The overall idea is that Roberts is using it as a political sort of savings clause and isn't really serious about the whole thing. He is not game to throw the baby out with the bathwater. I'm pretty surprised, especially with all the juicy new doctrine, that Kennedy didn't go along here. The majority protected "liberty" by finding mandates of this sort unconstitutional, noting taxes here provide more flexibility and do so without making people criminals. The tax doesn't go so far as to be unduly coercive and it isn't a direct tax.
The whole section is actually pretty well argued and touched the bases I have cited in the past online when talking about why the tax is acceptable. I'm in fact okay with being somewhat wary about "mandates" though again they aren't unconstitutional in general or even here. If something, e.g., "substantially affects" interstate commerce without being it, and a mandate of this sort is "necessary" as part of a comprehensive scheme, there is no real good reason to not allow it unless it violates some other constitutional provision or general principle. But, fine, be wary of them, require a greater test. Even then, as Ginsburg notes, the insurance coverage requirement is particularly necessary ... without saying so, she in effect says it meets the rational basis with teeth standard suggested by Kennedy in his U.S. v. Comstock concurrence.
The five here is akin to the person here that has a curious way to apply the tax power. Art. I, sec. 8 provides three reasons for taxation, and "revenue" is not the only one. I'm not sure where this need for "an effort to generate revenue that would replace the money that the feds will lose as a result of private persons' failure to buy insurance" is found in the text, ditto the limits now the law of the land given how the Constitution's meaning develops over time, much affected by political events, including who picks the people making the final decisions.
Well, bottom line, a constitutional law passed by a supermajority using a conservative approach barely survived. How much all the dross will affect constitutional law etc.* is left to be seen. One more reason for vote Obama and the Democrats in general in November.
---
* For instance, there was a split among the SCOTUSBlog team, one thinking it would hurt in the short term given the anti-tax mentality of the current political universe, while another thought the law is atypical enough that it would not matter much.