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Start preparing now to meet the broccoli mandate.

Jill

So this happened.

Pretty big deal. Here’s the decision (PDF). And beyond just being glad that the court upheld health care reform, I’m pleased to see Justice Roberts’ intellectual honesty on this one. The health care law was written extremely carefully to be in line with Supreme Court precedent on Congressional regulation of health. No one seriously thought that if passed it could be overturned. And then it was passed, and then right-wing lawyers jumped on it and pointed to the mandate especially as a piece of the legislation that was Constitutionally invalid and made some arguments that I don’t really buy but given what they were working with were pretty creative and more convincing than I would have expected. But the truth is that the health care law was pretty solidly in line with Supreme Court precedent on health / Congressional power issues, and it would have been a Big Deal if they had trashed health care reform — not just for HCR itself, but for a century-long line of American law. So I’m glad to see Roberts, who always swore up and down that he cared about precedent more than ideology, actually holding true to that.

And it gives me hope about marriage equality. For the past year or so I’ve been saying that I think the final decision on marriage equality will be a 6-3 split with Roberts and Kennedy joining the more liberal camp — Kennedy because he’s concerned about his legacy and Roberts because it’s awfully hard to come up with a colorable argument that it’s constitutionally permissible to deny marriage rights to same-sex couples. This makes me a little bit more optimistic.

14 thoughts on Start preparing now to meet the broccoli mandate.

  2. Good deal.

    It’s nice to see that our government has demonstrated some semblance of keeping pace with civilized societies.

  3. Unfortunately they overturned the required Medicaid expansion, which would have greatly benefitted many poor and disabled people, but other than that I’m happy with the ruling. As someone with fibromyalgia, it means that I won’t be dependent on employer-provided health insurance for the rest of my life.

  4. I’m (mostly) thrilled about this ruling. I’m particularly glad Roberts (a) was the fifth vote, and (b) wrote the controlling opinion. He has been a conservative golden boy since he was elevated to the Court, and it’s going to be a lot harder for (the more reasonable) Republicans to scream about the Court perverting the Constitution when this decision is in his words. I wish he hadn’t reached the Commerce Clause issue, but at least he wrote that part narrowly enough to really limit its effect.

    I don’t share your optimism about same sex marriage being a 6-3 decision, though, Jill (I do agree it’s likely Kennedy will make it 5-4). To this point Roberts has shown zero concern for precedent, and I don’t think that what he did here signals a change in his approach to cases generally (if it did, I think he would have been forced to find this law was within the Commerce Clause as its been interpreted over the past 100 years) so much as a recognition that this law was really, obviously within the federal government’s power and that it would have been a disaster for the Court to shoot down this important a piece of legislation on incredibly shaky legal reasoning.

  5. @ Chataya

    Unfortunately they overturned the required Medicaid expansion, which would have greatly benefitted many poor and disabled people, but other than that I’m happy with the ruling.

    They only limited the Medicaid expansion — the federal government can still deny additional Medicaid funding to states that refuse to participate in the expansion, it just can’t take away their existing funding. I’m sure a number of states will opt out of the expansion now, but I’m hopeful that in the long run the promise of additional funding will force them to change their minds.

  6. @ esti

    They only limited the Medicaid expansion — the federal government can still deny additional Medicaid funding to states that refuse to participate in the expansion, it just can’t take away their existing funding. I’m sure a number of states will opt out of the expansion now, but I’m hopeful that in the long run the promise of additional funding will force them to change their minds.

    I know, that’s why I specified “required.” The states that refused before were going to have all of their funding pulled. Now they basically don’t have to and are free to tell all the people that would have benefited from this to go pull up their bootstraps.

  7. Two quick points/distinctions:

    a. While I’m thrilled with the result, it’s important to be clear about the scope and grounds of the decision. At least according to the Supreme Court, the ACA was not “pretty solidly in line” with Commerce Clause precedent, which is why the court explicitly ruled that it was not a permissible exercise of the Commerce Power. Roberts’ willingness to come across the line was predicated on totally different grounds – namely, that the individual mandate was a permissible exercise of the Tax Power.

    b. That distinction may actually have a more insidious effect than we realize. The court’s discussion of the scope of the Commerce Clause was decidedly against a broad reading in future cases. If I had to bet, I would guess that Roberts was being tactical in this decision. By agreeing to let the mandate stand under alternate grounds, he was able to accomplish three of his own goals: (1) he left the Commerce Clause narrow – or at least ambiguous – for future cases, (2) he avoided looking like a political lapdog for conservatives, and (3) he rested the decision on the Tax Power – which has other significant checks against broad reach of federal legislation.

  8. Good ole Mitt has already held a press conference and stated that he’ll do away with the healthcare plan immediately if he gets into office.

    His address was just as comical as it was pathetic. He touched on some of the perceived flaws in the plan and then stated that we need healthcare reform in the U.S. that would basically be free to the taxpayers, not strip anyone of their existing insurance, lower the costs of treatment, insure every American, and not exclude those with pre-existing conditions.

    And we can count on Republicans to do this, right Mitt?

    Okay. Yeah. Sure.

  9. I seriously can not figure out what the hell this court is doing. I mean ideologically they are all over the map which I suppose is both good and bad, but this decision with *Roberts* providing the swing is befuddling to me.

  10. That distinction may actually have a more insidious effect than we realize. The court’s discussion of the scope of the Commerce Clause was decidedly against a broad reading in future cases.

    Your insidious effect is my blessing in disguise. The Commerce Clause has been out of control for years, Raich being one of the more egregious examples. I’m all for universal health care, but the federal government does not need essentially unlimited power in order to accomplish it. The mandate is a tax, its a necessary one, we can accomplish ACA under existing regulatory and taxation frameworks, health care doesn’t have to be Homeland Security style clusterfuck.

  11. I seriously can not figure out what the hell this court is doing. I mean ideologically they are all over the map which I suppose is both good and bad, but this decision with *Roberts* providing the swing is befuddling to me.

    I think that if you consider the issue to be less one of “should government be involved in health care?” and more of “what are the reasonable and traditional limits of federal power?” it becomes more clear what Roberts was doing. If you look at the individual mandate the way it was originally sold, as a penalty/fine for not buying a private service which effectively compels a private business transaction, I think theres a pretty good question as to whether or not the federal government has the power to enact such a system. States probably can (just look at auto insurance, although even there someone could theoretically choose not to drive and avoid the mandate entirely) but thats a substantial reach for the federal government. If you consider the individual mandate as a tax, however, its still a little novel (being a tax on not doing something rather than a tax on doing something) but no one seriously argues that the federal government lacks the constitutional authority to levy taxes.

    Looking at the mandate as a tax allows Roberts to sidestep the politics and instead focus on the finer points of federal tax authority. It also signals, in a very public case, that Roberts is potentially less likely to get sucked into policy making. What the majority said, in essence, was “whatever games you played to make this politically viable we’re not getting sucked into, what you did was issue a tax and we’re going to look at this as tax law, go fuck yourselves.” The court gets to present the appearance of not engaging in activism while underlining their basic role in government, sending a message about being annoyed that the other two branches have taken a “do whatever we want and let SCOTUS sort it out” attitude as of late, making a public display of disregarding political maneuvering, and signaling that the commerce clause is not the magic wand both sides have treated it as.

  12. As someone convinced that the FMA can pass in a year as soon as it’s not needed as a big red cash cow, I’d love to import some of that optimism. I’d be happy to vacuum under people’s beds for it.

  13. I think that if you consider the issue to be less one of “should government be involved in health care?” and more of “what are the reasonable and traditional limits of federal power?” it becomes more clear what Roberts was doing.

    There have never been “reasonable and traditional limits of federal power.” We’ve been fighting that battle continuously since (before) the founding of our country. Characterizing it that way shifts the frame making whatever Roberts et al decide “reasonable” and “traditional.” Looking at Roberts’ positions to divine his judicial approach yields a bizarre hodgepodge. He often upholds the exercise of federal power where federalists would argue it is inappropriate.

  14. Kristen J: I don’t think Roberts is a federalist, I think he’s a conservative in the original sense of the word. I think he is averse to change and is generally motivated by a desire to maintain the status quo by protecting precedent and following the rules. He’s someone who wants to say within the lines, an anti-activist with a great respect for “the way of things” who sees his place in the history books not as a revolutionary but as someone who keeps the boat from rocking. Pushing back against the commerce clause, which seems out of control, but still respecting the constitutional hierarchy of congress and the president seems to me to be entirely consistent. Moving the ACA into the tax sphere was the conservative move, it changes as little as is possible, it doesn’t challenge the authority of elected officials, it doesn’t expand federal power, it doesn’t significantly restrict federal power, it holds the line and returns to business as usual. A lot of people on the right are all up in arms because it that doesn’t show the combative conservatism of Rush Limbaugh or Inquisitors-in-waiting of the Bible Belt, but that doesn’t change the fact that this is a conservative decision.

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