There is much more to say about this morning’s ruling upholding the Affordable Care Act (aka Obamacare) as a tax, but here’s a quick summary:
Chief Justice Roberts, joined by Justices Scalia, Kennedy, Thomas, and Alito, held that the individual mandate was not a valid exercise of the Commerce Clause powers of Congress, or of the Necessary & Properly clause, which simply authorizes methods to pursue valid commerce clause powers.
But Chief Justice Roberts joined with the 4 liberal justices on the Court to hold that the fact that failure to comply with the individual mandate resulted in a penalty that would be paid to the IRS, it could be upheld as a valid exercise of the Taxing power.
Critical to this line of reasoning is that the result tax is NOT at tax for purposes of the anti-injunction act. Otherwise, the Court would not yet have had jurisdiction even to hear the case. But it can nevertheless be a tax for purposes of Congress’s constitutional authority.
Also critical to this line of reasoning is that the tax is not a direct tax. Otherwise, it would be unconstitutional because not apportioned according to population, as the Constitution requires for direct taxes. Chief Justice Robert’s argument on that critical point is conclusory–only about a page or so–and confused. If it is not a direct tax, it must be an excise or an income tax, and it quite obviously is neither. But Chief Justice Roberts doesn’t explain what it is; he just asserts that it is not a direct tax.
7 Justices — the 3 solid conservatives (Scalia, Thomas, and Alito), joined by Chief Justice Roberts and Justices Kennedy, Breyer, and Kagan, held that the threat of removal of all existing state medicaid funding if states did not go along with the Medicaid expansion was unconstitutional. But instead of striking down the Medicaid expansion itself, the Court simply struck down the reach of the non-compliance penalty, limiting it only to the new spending offer, not the existing spending. I Don’t yet know whether all 7 agreed with that remedy.
Make no mistake. Chief Justice Roberts’ opinion is a sell-out of constitutional principle of the highest magnitude. The fateful day back in the Summer of 2005 when President Bush chose to nominate John Roberts rather than Mike Luttig to the Chief Justiceship has resulting in upholding the move to socialized medicine in the United States.
The campaign into November will now be fought over whether it should be repealed. For those seeking to repeal, the elements of success on that include 1) continue to hold the House of Representatives; 2) win enough seats in the Senate to prevent a filibuster — that’s 60 Republicans, or some combination of Republicans and Democrats who can be pressured to pledge to vote to repeal in order to retain their seats; and 3) win the White House, lest a veto override 2/3 vote in each house of Congress be required. There is much work to do.