President Obama’s national health care law has survived.
In an unexpected turn of events, supposed “swing justice” Anthony Kennedy voted with Antonin Scalia, Clarence Thomas and Sam Alito to strike down the entire law with the individual mandate. “(W)e would find the Act invalid in its entirety,” they wrote in a blistering dissent. But unfortunately for opponents of the law, Chief Justice John Roberts joined with the liberal bloc to uphold the Constitutionality of the individual mandate.
Even more surprisingly, Roberts did not do so on the basis of Commerce Clause grounds, which was the focus of most of the oral arguments and debate surrounding the case. “The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity,” Roberts wrote. “Such a law cannot be sustained under a clause authorizing Congress to ‘regulate Commerce.’” But he did rule that the law was a valid exercise of Congress’s taxing power — a fall back argument by the Obama administration that had been rejected even by lower courts that had upheld the law on Commerce Clause grounds, and which both liberal and conservative justices had seemed skeptical of during March’s oral arguments before the Supreme Court.
Upholding the law on taxing power grounds could be seen as granting Congress even more expansive power than the Court would have if the mandate were upheld for Commerce Clause reasons. Theoretically, it means that future Congresses could regulate anything — even behavior that would otherwise be deemed unconstitutional — by slapping a penalty on it and declaring it a tax in court.
In another unpredictable wrinkle, the Court ruled that the Medicaid expansion was unconstitutional — which was seen as the biggest uphill climb for challengers to the law — and Roberts was joined by liberal justices Elena Kagan and Stephen Breyer. However, the Court did not throw out the altogether expansion, but said the federal government would have to give the choice to states as whether to participate in the expansion. The federal government cannot threaten states with stripping them of existing Medicaid funding, but only the additional funding that would come through the expansion. It should be interesting to see how this affects the expansion. Republican governors will be under tremendous pressure to forgo the new Medicaid money, but if history is any indication, it may be difficult for states to resist the lure of federal money, even if it comes with more conditions.
This is, now doubt, a crushing defeat for conservatives. Wiping the national health care law was within reach, but Roberts disappointed, with a decision that not only saved Obamacare, but could be used to justify even greater government expansion down the road.
For conservative activists, the fight will now move to November and focus on efforts to legislatively repeal Obamacare. It will, no doubt, be an uphill battle, made much more difficult by today’s decision, which could start to cement the idea of the law’s inevitability in the public’s mind. But it is the only option.