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The Supreme Court's Obamacare ruling -- abridged

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Politics,Beltway Confidential,Philip Klein

For those who haven’t had time to read through the entire health care decision yet, what follows is an abridged version of Chief Justice John Roberts’ majority opinion, divided up by each issue that was before the Supreme Court.

1.

The Court concluded that the Anti-Injunction Act did not bar challenges to the health care law from being ruled on now, instead of 2014, when the mandate actually goes into effect.  The Anti-Injunction Act is a 19th-century statute that says people cannot challenge a tax until after they have paid for it. (Interestingly, the Court ruled the mandate wasn’t a tax for the purposes of the Anti-Injunction Act, but was nonetheless allowed under Congress’s taxing power. More on that below)

Roberts:

“The Anti-Injunction Act applies to suits ‘for the purpose of restraining the assessment or collection of any tax.’… Congress, however, chose to describe the ‘[s]hared responsibility payment’ imposed on those who forgo health insurance not as a ‘tax,’ but as a ‘penalty.’ …There is no immediate reason to think that a statute applying to ‘any tax’ would apply to a ‘penalty.’”

Congress’s decision to label this exaction a ‘penalty’ rather than a ‘tax’ is significant because the Affordable Care Act describes many other exactions it creates as ‘taxes.’”

….

The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits.

2. Next came the key part of the challenge, on the constitutionality of the individual mandate.

First, the Court ruled that the individual mandate was not permissible under Congress’s Commerce Clause power, which had been seen as the central issue of the case.

Roberts:

“Given its expansive scope, it is no surprise that Congress has employed the commerce power in a wide variety of ways to address the pressing needs of the time. But Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product.”

….

“The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous.”

….

“Our precedent also reflects this understanding. As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching ‘activity.’ It is nearly impossible to avoid the word when quoting them.”

“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. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.”

….

“Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables…

 

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.”

….

“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.”

….

“The proposition that Congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent….

“Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today.”

….

“The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”

Second, the Court ruled that the Necessary and Proper Clause could not justify the mandate, either.

Roberts:

“Although the Clause gives Congress authority to ‘legislate on that vast mass of incidental powers which must be involved in the constitution,’ it does not license the exercise of any ‘great substantive and independent power[s]’ beyond those specifically enumerated.”

….

“Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure to purchase health insurance, neither can it be upheld as a “necessary and proper” component of the insurance reforms. The commerce power thus does not authorize the mandate.”

Though the Court concluded that the mandate wasn’t justified under the Commerce or Necessary and Proper clauses, Roberts added, “That is not the end of the matter.” Thus began his argument that the mandate was a valid exercise of Congress’s taxing power, which is how it was upheld.

Roberts:

“The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads ‘no vehicles in the park’ might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”

….

“Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes.”

….

“(I)f the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax. The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one… As we have explained, ‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’ Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below.”

….

“It is of course true that the Act describes the payment as a ‘penalty,’ not a ‘tax.’ But while that label is fatal to the application of the Anti-Injunction Act… it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress’s choice of label on that question. That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.”

….

“The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more. It may often be a reasonable financial decision to make the payment rather than purchase insurance… Second, the individual mandate contains no scienter requirement. Third, the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.”

….

“None of this is to say that the payment is not intended to affect individual conduct. Although the payment will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new. Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry… Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking. And we have upheld such obviously regulatory measures as taxes on selling marijuana and sawed-off shotguns.”

….

“While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law.”

….

“The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we ab- stain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes. See Letter from Benjamin Franklin to M. Le Roy (Nov. 13, 1789) (“Our new Constitution is now established . . . but in this world nothing can be said to be certain, except death and taxes”).”

….

“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.”

 

3. The Court also ruled that Congress’s expansion of Medicaid was unconstitutional, because it threatened states with losing existing Medicaid funds if they did not agree to abide by the expansion. The Court effectively allowed the Medicaid expansion to still go forward, but only if states have the option of not participating without risking their existing Medicaid funding.

Roberts:

“Congress may use its spending power to create incentives for States to act in accordance with federal policies. But when ‘pressure turns into compulsion,’ … the legislation runs contrary to our system of federalism.”

….

“In this case, the financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’—it is a gun to the head.”

….

“The threatened loss of over 10 percent of a State’s overall budget… is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”

….

“As we have explained, ‘[t]hough Congress’ power to legislate under the spending power is broad, it does not include surprising participating States with postacceptance or “retroactive” conditions.’ Pennhurst, supra, at 25. A State could hardly anticipate that Congress’s reservation of the right to ‘alter’ or ‘amend’ the Medicaid program included the power to transform it so dramatically.”

….

“Nothing in our opinion precludes Congress from offering funds under the Affordable Care Act to expand the availability of health care, and requiring that States accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.”

4. Another issue that the Court dealt with was severability – what to do with the rest of the law if a part is struck down. Given that the mandate was upheld, the decision didn’t have to address that at length, but it did conclude that the Medicaid ruling wouldn’t affect the rest of the law.

Roberts wrote:

“The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done 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.”

 

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