June 28, 2012

The individual mandate survives as a tax.

Says SCOTUSblog.

CNN is getting it wrong, if SCOTUSblog is right. They're headlining "Individual Mandate Struck Down."

CNN is running on the Commerce Clause ground, apparently, and not seeing the tax power part.

At SCOTUSblog: "So the mandate is constitutional. Chief Justice Roberts joins the left of the Court."

UPDATE: John King on CNN is starting to walk back. Wolf Blitzer notes "conflicting reports from in there."

UPDATE 2: From SCOTUSblog. "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read." From CNN: Blitzer says "let's take a deep breath... if you're watching this on Twitter... momentous... more information...."

UPDATE 3: CNN reporter showing what a big, long opinion it is — holding it up, flipping through the pages. Finally, at 9:15, she says the entire law has been upheld.

UPDATE 4: Note the important political effect of saying it's a tax (and not an exercise of the power to regulate under the Commerce Clause): People don't like taxes. Obama and the Democrats imposed a huge new tax, affecting middle class people. Wolf Blitzer calls this "a huge huge victory for President Obama," but it will be used against him, and the tax ground means a lot.
The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.
UPDATE 5: Based on CNN, which I don't trust, it's a 5 to 4 decision, and Chief Justice Roberts, not Justice Kennedy, was the deciding vote.

UPDATE 6: From SCOTUSblog: "The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate." Hmmm. I think that might be misstated. I'm guessing SCOTUSblog meant to say that individuals can simply refuse to comply with the mandate — i.e., buy insurance — and pay the penalty — which is accepted as a "tax" within the meaning of the taxing power. [ADDED: My guess there is correct, as SCOTUSblog has now noted.]

UPDATE 7: I still don't have the opinion, but the Commerce Clause discussion comes out on the conservative side, and that will be important doctrine. Now, possibly they simply talk about the difficulty of the Commerce Clause question and then refuse to resolve it, switching to the taxing power issue.

UPDATE 8: The spending power material about the states and Medicare is also important. Per SCOTUSblog: "The Constitution requires that states have a choice about whether to participate in the expansion of eligibility; if they decide not to, they can continue to receive funds for the rest of the program." This probably is an important new contribution to the doctrine about conditional spending, that Congress can't attach a new condition to old spending as it entices the states to agree to something they can't otherwise be required to do. That makes it much harder to lure the states into accepting conditions.

UPDATE 8: In Update 7, I said I couldn't assume that there was a resolution of the Commerce Clause issue, but I see now that there are 5 votes saying the Commerce Clause does not support the individual mandate, and: "The power to regulate commerce presupposes the existence of commercial activity to be regulated."

216 comments:

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Matt Sablan said...

Mike: The original bill came from the House and was on an unrelated matter. In the Senate, it was gutted and amended to what we now know. So, it did originate in the House. Technically.

Chip S. said...

@RC--If you want more people to read your recommendations, you'll learn how to create hyperlinks. A simple search will lead you right to it.

Expecting other people to do extra work so that you don't have to learn a skill must be in a lefty's genetic code.

Balfegor said...

"How about a hyperlink, RC? I hate cut-and-paste."

I don't know how to do that
.

Replace my square brackets with angle brackets in the following to create links:

[a href="http://(link)"]hyperlink text[/a].

And of course, put in actual links and hyperlink text.

Kirby Olson said...

My favorite sentence thus far is: "It is not our job to protect the people from the consequences of their political choices." That appears on p. 6 of the decision.

That's about as funny as you can get. Who do you suppose squibbed that sentence?

I love it!

And then that they rerouted it from a mandate to a tax. Isn't this calculated to arouse the ire of people from coast to coast?

They also use language such as "dragooning," to describe the attempt to FORCE the states to do their will wrt Medicare.

I find this document priceless. But this sentence is my favorite:

"it is not our job to protect the people from the consequences of their political choices."

How's that for political consciousness raising?

Rusty said...

Matthew Sablan said...
Mike: The original bill came from the House and was on an unrelated matter. In the Senate, it was gutted and amended to what we now know. So, it did originate in the House. Technically.


If the Senate changed it enough to require new revenues then it has to go back to the house.

Michael K said...

"For people that are upset that ACA is what we ended up with, there have been decades and decades to offer some alternative solution. "

They have been tried. After 1994, we had for-profit HMOs. That has failed. The one thing that has not been tried is a market oriented reform, such as asking people to pay first and get reimbursed later. Or ask people to pay for routine care, that should not qualify for "insurance", and restrict insurance to insurable events. The last time we had that as the health system, it worked and was not doubling in cost every other year.

This is an incredible bureaucracy and will also fail, leaving us with no workable plan as doctors will have all retired or chosen another line of work.

Andy said...

If the Senate changed it enough to require new revenues then it has to go back to the house.

You should file a lawsuit!

Matt Sablan said...

"If the Senate changed it enough to require new revenues then it has to go back to the house."

-- Which I believe it did; but it still originated in the House.

test said...

"The one thing that has not been tried is a market oriented reform, such as asking people to pay first and get reimbursed later. Or ask people to pay for routine care, that should not qualify for "insurance", and restrict insurance to insurable events.

We could take one simple action with a profound positive effect: break the employer - insurance link.

Current policy drives insurance companies to act as medical payment agents rather than insurers because large businesses want to maximize the tax free benefit they can offer employees. In addition to the direct impact of pay agent vs insurer, this also prevents insurance companes from developing the range of products which would be available in a freer market.

This should be our course. It limits government action to correcting the problems it has caused rather than doubling down on its stupidity.

Anonymous said...

@RC
Use &lta href="url"&gtLinked text&lt/a&gt

I think.

Anonymous said...

nope. escape tags are too tricky for me.

Anonymous said...

maybe <a href="url">Linked text</a>
would do.

Anonymous said...

hooray

Bleach Drinkers Curing Coronavirus Together said...

Today, the great experiment of freedom, liberty, and the consent of the governed that our founders left for us to follow has been subverted to the will of the elected in contravention to the founders. They are wherever they are shrugging their shoulders and saying "Meh, we gave it a shot. It didn't work."

You lie. They would have said no such thing.

Bleach Drinkers Curing Coronavirus Together said...

http://jonathanturley.org/2012/04/14/did-the-founding-fathers-back-health-insurance-mandates/

Chip S. said...

Ritmo, I saw Turley's post the other day and was disappointed at how shallow it was.

Up until the end of the Civil War, letters of marque and privateers were used by the US government as a way to expand naval power quickly. The provisions Turley refers to were not "health insurance," as no such thing actually existed in those days. The stipulated payments went toward disability payments to, and hospitals for, disabled seamen. I'd say the entire operation was more similar to the RR Retirement Fund than Obamacare.

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