Today, the Supreme Court ruled 5-4 to uphold Obamacare. In a surprise move, Chief Justice John Roberts sided with the four liberal judges in deeming the law’s “individual mandate” to be constitutional.
While this may seem like a democrat victory, the language of the ruling itself may be problematic for them in the future.
The key point is that Roberts stated that the individual mandate is not constitutional under the Commerce Clause, which gives government the right to regulate commerce. Roberts wrote:
“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. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do.
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.”
While imposing a penalty is unconstitutional, Roberts states, the mandate is possible through taxation. Simply, if you don’t have health insurance, you will face a tax.
While this may seem like “six of one, half-dozen of another,” it will cause great concern in regards to Obama’s 2012 election campaign. Obama had previously argued that penalties under the Affordable Care Act are NOT a tax, and was very clear that he believed so. However, Roberts’ ruling that it is only constitutional under taxation changes the game for an election that is primarily about the economy.
Most Americans have some form of health insurance, and the wealthier among us fall into that group. The people that don’t have health insurance are more likely to be those that can’t afford to have it. Essentially, the tax won’t fall on those that can afford to pay it, but rather those that can’t. Even given the option of “affordable” health care or a tax, some people are simply going to be forced into spending money they just don’t have.
In this election year, the last thing people want to hear is that they may face Obama’s great new health tax.
The broader battle contained within the ruling is the power of the Commerce Clause itself. As pointed out by Tom Scocca at the Slate, Chief Justice Roberts, a member of the Federalist Society, may be playing a larger game of chess beyond that of national healthcare: he may have his sights honed in on the Commerce Clause itself.
Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.
What Roberts has done, with both the ruling on the mandate and his decision on the expansion of Medicaid, is limit the powers of the federal government and the Commerce Clause.
Whatever his reasoning or motive, ultimately he leaves the issue thrown back at the American people. You decide, he says, in essence. And that’s what we plan to do this November.
For an excellent read on the implications of the decision beyond healthcare, see “The Chief Justice’s Gambit” at Real Clear Politics.