“Supreme Court Finds Health Care Individual Mandate Unconstitutional” ran the news ticker on Fox News as the various news organizations tried to be the “first” to announce the U.S. Supreme Court’s decision on the Patient Protection and Affordable Care Act, or “Obamacare” by its detractors. Of course, CNN bungled the story as well, with Wolf Blitzer’s tongue becoming entangled with his mangled thoughts. However, Fox mendaciously claimed that they only reported events “as they happened”—which I take to mean that the cable network was reporting on its own anti-Obama fantasies. In any case, both Fox News and CNN got it wrong because despite the fact that they are “24-hour” news organization, they don’t seem to like to do, or have the “time” to do, any actual investigative work beyond surface details; I guess they just leave that hard stuff to “60 Minutes” or “Frontline.”
So what exactly did the Supreme Court decide, and why? By a 5-4 vote, the court decided that the Act passed constitutional muster in all respects save for the penalties placed against states that do not comply with expansion of Medicaid; many states are already reducing the number of people eligible for Medicaid and state programs, and the court decided that forcing them to take on more people than before was too great a “burden.” While the individual mandate was upheld, there was considerable disagreement as to why it should have upheld by the favoring five; Chief Justice John Roberts found the mandate “unconstitutional” when applied to the Commerce Clause, but was joined by two of the “liberal” justices in finding that it was “constitutional” if seen as a tax. But in her “concurring” opinion, Justice Ruth Bader Ginsburg (joined by Justice Sotomayor) ridiculed Roberts’ reasoning, insisting that the mandate was valid under the Clause. Ginsburg also insisted that there was no “hardship” imposed on states by the Medicaid expansion; after all, there would be increased federal funding, and states which did not want to abide by the new rules were simply acting out of partisan politics.
Of course, it is one thing to summarize what was said, but it might be useful to read what exactly the justices did say, and try to determine if there was anything we can understand from their thinking. Chief Justice Roberts gave the “majority” opinion. First, he made it clear that he felt—unlike the four right-wing dissenters—that it was not the Court’s function to “legislate” from the bench, or interfere with Congress’ right to make laws:
“Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. ‘Proper respect for a co-ordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated’… Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
It has been said that Roberts is conscious of the fact that his court is, by all appearances, embroiled by political partisanship; Justices Scalia, Alito and Thomas all seem to have minds fossilized in the Precambrian epoch. This is made clear every time Justice Scalia opens his mouth; never has a more intemperate bigot been on the court since the antebellum days. Some judicial observers even suggested that he should resign from the court after his paranoid, xenophobic rant following the Arizona immigration law decision. Scalia practically cited the Dred Scot decision, in that like slaves, illegal immigrants had no rights anyone was bound to respect, and Arizonans could treat them as they wished. Of course, white Arizonans descended from Southern slaveholders did not even need that as an excuse to pass anti-Latino Jim Crow-style laws since it first became a territory and already populated with former “Mexicans.”
Roberts knew that the Scalia and his gang wanted to strike down the entire Act, which he knew would also bring discredit upon the Court as an “objective” institution. However, Roberts is no “moderate”—he is a conservative through and through. His decision to both striking down parts of SB-1070 and upholding the individual mandate was calculated and self-serving; he gave every indication that while he opposed the health care act as a matter of policy, but in the name of separation of powers, he insisted that it was not his place to pass judgment over what elected officials did. Nevertheless, he sided with the dissenting justices in proclaiming that citing the Commerce Clause was invalid. The Clause states one of the powers of Congress is “To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” The vagueness of what this clause actually means leaves it open to sharp debate; one should think, however, that one should err on the side of the federal government, since chaos would ensue if each state was allowed to do as it pleases at the detriment of another. Although in the past, use of the Commerce Clause was restricted when states acted when no law by Congress specifically addressed a particular concern, Roberts went further—claiming in rather head-scratching fashion that the Clause did not apply to people who did not participate in the health care system, by not purchasing health insurance:
“But Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product. Legislative novelty is not necessarily fatal; there is a first time for everything... The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce…People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act…While Congress’s authority under the Commerce Clause has of course expanded with the growth of the national economy, our cases have always recognized that the power to regulate commerce, though broad indeed, has limits…The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.”
But in her “concurring” dissent, Justice Ginsburg heaped scorn upon this reasoning, accusing the Chief Justice of “failing to learn from history,” plowing “ahead with his formalistic distinction between those who are ‘active in commerce’” or not:
“The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s. In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to THE CHIEF JUSTICE, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.” In justifying the invocation of the Clause, Ginsburg asserted that “States that undertake health-care reforms on their own thus risk ‘placing themselves in a position of economic disadvantage as compared with neighbors or competitors.’” States cannot deal with the problem of out-of-control healthcare cost by themselves; the federal government has to step-in to avert chaos.
It is clear that at least two members of the liberal court (Ginsburg and Sotomayor) saw Roberts “help” as a double-edged sword. In her opinion, Ginsburg continued to pummel the Chief Justice and his soporific analogies, which seemed to suggest a lack of imagination. Ginsburg found comparing the purchase of a car or not to health care “inapt.” While a person may never buy a car or need one for his or her transportation needs, to say that a person who does not purchase health insurance will never have need for medical care is shortsighted and unrealistic: “The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets.”
Ginsburg also disputes the usual claim that young, healthy individuals will be made to “subsidize” the health care for the “less hale and hardy.” The absurdity of this claim is obvious when the subject of Social Security comes up; of course the young and healthy have no need for it now, yet are required to pay into the fund through a payroll tax. But they are paying into something that as long as it remains solvent, they will ultimately benefit from, and in fact expect to. Likewise for medical care: “Under the current health-care system, healthy persons who lack insurance receive a benefit for which they do not pay: They are assured that, if they need it, emergency medical care will be available, although they cannot afford it.”
Roberts’ wishy-washy attitude toward the constitutional validity of the individual mandate also angered Ginsburg for the reason that would it likely would be a source of mischief by courts confused by what exactly was or was not constitutionally permissible in obligating an uninsured person to pay into the health care system. Nevertheless, the Chief Justice, as we mentioned before, wasn’t quite finished:
“That is not the end of the matter. Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to lay and collect Taxes…the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one.” Roberts dismissed the complaints of Scalia and company that because the individual mandate was not specifically stated to be a “tax,” it could not be called a tax, and thus it was unconstitutional under any circumstance; federal licenses, such as for the sale of liquor and lottery tickets, are called fees, but could in fact be construed as “taxes.” The fact that the individual mandate was called a “penalty” did not mean it could not be referring to a de facto “tax.” In citing Benjamin Franklin’s “Our new Constitution is now established . . . but in this world nothing can be said to be certain, except death and taxes,” Roberts states that the Constitution allows for a capitation (or “head”) tax, and “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
Yet Roberts’ agreement with his four conservative cohorts in blocking the Medicaid expansion requirement may have long-term consequences in the success of the Act, since it cannot function as envisioned without the cooperation of the states. Ginsburg again criticized the Chief Justice’s reasoning, arguing that “the Medicaid Act put States on notice that the program could be changed: ‘The right to alter, amend, or repeal any provision of [Medicaid] is hereby reserved to the Congress’…By reserving the right to ‘alter, amend, [or] repeal’ a spending program, Congress has given special notice of its intention to retain . . . full and complete power to make such alterations and amendments . . . as come within the just scope of legislative power.” Thus the states cannot use the excuse of “not knowing” that Congress had the power to change conditions—especially when they knew full well what was coming well in advance—for failing to abide by the insured patients expansion amendment.
Then we have the tiresome opinion of the usual suspects. Justice Kennedy cynically states that “Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection and Affordable Care Act go beyond those powers. We conclude that they do.” We can see right off what motivates the dissenters: They believe that “everyone” is getting “affordable” healthcare anyways—it is just that some people are not getting the “best” healthcare. What do these people want—eider-down quilts? Furthermore, it would also appear that anything that is “complicated” and cannot be understood without reading it first is “unconstitutional.”
Just as Ginsburg accuses Roberts of having a retrograde notion of the Constitution that takes no notice of changing circumstances (which is why there are amendments to the Constitution), the same can be said about the dissenting four:
“The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it…For the reasons here stated, we would find the Act invalid in its entirety. We respectfully dissent.”
The problem here is that the conservatives are being rather patronizing, obtuse, vague and unclear. Are they using a “states’ rights” argument to justify an outdated notion of society? Commerce between states and nations are far more complicated than back in the days of horse and buggy. The company I work for offers so-called “health insurance” that in the state of Washington is illegal—the insurer being on a list of insurance “scam” companies. Yet since the “situs” of the company I work for is located in Texas, where the “insurance” is legal, there is a “loop-hole” where it is thus "legal" to provide insurance that is not recognized as valid in the state I live in; every time I've mentioned it to a health care provider, I am told that doctor is not taking new patients. This is a clear case where only Congress has the wherewithal to use the Commerce Clause to pass a law forcing one state to respect the laws of another. The dissenters also ignore the fact that this country faces major challenges in health care costs, which account for a shocking 20 percent of the national GDP. This is money that could have been spent on consumer items to drive the economy; instead a gigantic chunk is disappearing into a black hole, the enormity of which few understand and fewer still understand why they must pay so much out of increasingly depressed wages for the average worker for even minor procedures.
It remains to be seen how the health care law will play out now, especially if states can “opt-out” without penalty. One thing is for certain: Republican threats to strike down the law are both foolish and short-sighted, especially given the fact they have no alternative vision that prevents denial of care for people with pre-existing conditions, allows for free preventative care or a mechanism to provide affordable insurance that is not worthless. Their actions should be seen for the partisan mendacity that it is, without the slightest understanding of the danger that runaway health care costs pose on the long-term health of the economy.
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