On Thursday morning, the Supreme Court upheld the Patient Protection and Affordable Care Act, a vindication for Barack Obama's singature piece of legislation, and the final act in the biggest piece of social legislation since Lyndon Johnson's Great Society laws.
The Court argued that the individual mandate, the heart of the ACA, was unconstitutional under the Necessary and Proper Clause, and unconsitutional under the Commerce Clause, meaning Congress does not have the right to compel individuals to purchase a product, insurance, broccoli, or otherwise.
However, the Court found that the individual mandate IS constitutional as a tax, which is one of the three options PoliticOlogy outlined yesterday. Congress has the ability to levy taxes, and if it wants to tax those who don't have health insurance, it can. The Court found that the individual mandate is constitutional under that power. The nice trick with this, as Walter Dellinger at Slate pointed out, is that no matter what, you're in compliance with the law: it's not a punishment, buy insurance or else, but a choice, buy insurance or pay a tax. Either way under the second version, you're good under the law.
Perhaps most surprising to Court observers was the breakdown of the Justices. Anthony Kennedy, whom everybody thought would be the key swing vote, went against the law, arguing in a dissent that the Act in its entirety was invalid. However, Chief Justice John Roberts sided with the four liberal justices in upholding the ACA. Why? Just ask me, three months ago, and I quote:
The Chief Justice will want as united a court as possible on the most important ruling of his judicial career. He's not going to get Scalia, Thomas, or Alito, but he would likely be happy with a 6-3 decision, with Kennedy writing. If I were a betting man, and had money, I'd place a twenty on 6-3 in favor of Obamacare; if it pays out, it will pay out big.
I doubled down on this yesterday:
I'm standing by my original prediction that the Court will rule 6-3 in favor of the ACA. I think Kennedy will scribe his own limiting principle, either the Mandate as a Tax or something else, lest he and the conservative court doom any chance of health care reform on this planet. That's five votes. But John Roberts knows full well that this is the most important case of his tenure as Chief Justice. He came into the Court several years ago proclaiming a desire for more consensus decisions, something upon which he has definitely not delivered. Roberts does not want to let the ACA pass or die on a 5-4 decision, which means he's joining whichever side has the votes. It's not uncommon for a Chief Justice to join the winning side for consensus' sake; in fact, some believe Roberts joined the four liberal justices on Monday's ruling over SB 1070 so as to avoid a split vote.
So I missed on Kennedy. But I nailed it on Roberts. Roberts knows this decision is the most important he will ever preside over, and he didn't want it to be the biggest rejection of presidential and congressional authority in recent memory. I thought he would try harder to avoid a 5-4 split decision, but maybe he was stymied, as the rest of us always are, by Justice Kennedy.
The point being, I called it, despite a complete lack of legal experience and knowledge. Send your checks c/o Ology Media 336 W 37th St, New York, NY 10018.
The Court struck down the Medicare expansion provision, but nobody knows the details or ramifications yet, as Fox News is proving on a word-by-word basis right now. PoliticOlogy will have updates later in the day. Obama is said to be speaking at some point in the next two hours, and we're still waiting for Romney's response. Of course, there will be a huge shift in the election narrative, but we've got plenty of time for that.
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