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What the Court Said About Obamacare

COMMENTARY

BY GERARD BRADLEY

| Posted 6/29/12 at 12:25 PM

 

The U.S. Supreme Court ruled June 28 that the Patient Protection and Affordable Care Act does not violate the Constitution. So the law more commonly called “Obamacare” will go into effect as scheduled, on Jan. 1, 2014.

Between now and then, the United States will elect a president and a Congress. “Obamacare” in a Romney administration would look a lot different than it will if President Obama is re-elected, because the executive branch has much discretion about how our nation’s laws are carried into effect.

But the only way left to overturn PPACA is for the new Congress to repeal it. That is only possible if Romney is elected president, because Obama would veto any congressional repeal. Indeed, that obvious fact would probably forestall any attempt to repeal it.

One of Obamacare’s most controversial provisions, and one of the two that were specifically upheld by the court, requires practically every American to have health-care insurance of some sort by Jan. 1, 2014. This so-called “individual mandate” is not to be confused with the “HHS mandate” about contraception (and sterilization and early abortion).

The latter “mandate” was not before the court. If the whole PPACA had been ruled unconstitutional, though, the HHS mandate would have gone down with it. The reason is that the HHS mandate, which itself begins to go into effect on Aug. 1, was promulgated under the authority of Obamacare. The judicial internment of Obamacare would have ended that authority, and thus the “contraception” mandate, too.

The two dozen religious-liberty lawsuits against the HHS mandate will now go forward. The plaintiffs in these cases include several archdioceses, EWTN, the Register’s parent company, and the University of Notre Dame. If nothing else intervenes, these cases are likely to find definitive resolution in the Supreme Court in about two years. The chances of victory for religious liberty at that point are pretty good. That is a story for another day.

Obamacare’s abortion-funding policy remains in place, too. It is a matter of genuine debate where this potential exactly lies and what the scope of the threat precisely is. Seeing the complete picture here depends upon further administrative rulemaking and possibly upon some court rulings as well. But Obamacare surely includes some, and perhaps much, abortion funding, even apart from the HHS mandate in favor of abortifacient drugs.

One can be certain, too, that President Romney would rescind the “contraception mandate” and do all that he could to minimize, or eliminate, other abortion funding from the PPACA.

That is the bare-bones narrative of the court’s decision and its practical effects. The thicker account of the decision is full of surprises and intrigue. The judicial partnerships struck in this 5-4 holding are curious, for they go beyond the usual “conservative-liberal” split characteristic of so many narrow court votes.

Justice Anthony Kennedy is often the “swing” vote in such critical cases (as he almost certainly will be when the court decides about same-sex “marriage”). This time he dissented, along with Justices Samuel Alito, Clarence Thomas and Antonin Scalia. The decisive vote in this case was that of someone who is usually part of the socially and fiscally conservative bloc — Chief Justice John Roberts.

To anticipate our later discussion of the legal issues, if you had told me on June 27 that both Kennedy and Roberts would hold — as they did — that Obamacare exceeded Congress’ power over interstate commerce, I would have given 50-to-1 odds that PPACA would have been held unconstitutional. But Roberts had another way of thinking about the case in mind.

To grasp the legal issues resolved by the court, it is perhaps best to start with the central aim of PPACA —universal health-care coverage. That goal could only be accomplished by requiring (as Obamacare does) practically everyone to get health insurance and by making it impossible for any state to opt out of the plan. A state might “opt out” of PPACA by declining to participate in its vastly expanded Medicaid coverage of poor Americans. Within any opt-out state, impoverished Medicaid recipients would be adrift, cut off from public health-care coverage and unable to afford private insurance.

PPACA deals with both sorts of potential recalcitrants by imposing what PPACA itself calls a “penalty” upon individuals and by cutting off all Medicaid funding to states wishing to opt out. It is very costly to flaunt Obamacare.

The constitutional question in the case was whether Congress had the power to enact either of these strong-arm provisions. The “individual mandate” was challenged mainly as being beyond Congress’ power to regulate interstate commerce. The argument was that anyone’s choice not to purchase health insurance was just not a commercial act, much less one which involved “interstate” commerce. The states argued that Congress’ sanction was so severe as to leave them no realistic alternative but to go along. They said that Congress really “coerced” them into being mere adjuncts of the national government.

Both of these arguments rest upon our constitutional federalism, which supposes that the states are, and are to remain, autonomous political units possessed of a certain sovereignty. They are not departments of the national government. Congress may offer inducements to states willing to cooperate in national projects. But “conscripting” them is out. And while the national government has great power over our lives (notwithstanding that we live in particular state sovereignties), that power is not unlimited. Congress must respect some limits to its powers in favor of state governance.

Chief Justice Roberts found that Congress did more than dangle a financial carrot in front of the states. It was, he said, more like a gun to the head. He found, too, that Congress’ commercial power did not reach anyone’s decision not to buy health insurance. Since the four dissenting justices reached roughly the same conclusions, the question arises: How did PPACA survive the day on June 28?

The answer lies in the chief justice’s decision that the penalties imposed upon recalcitrant individuals could reasonably be construed as a “tax” upon them for exercising that choice. For Roberts, then, the case turned not upon the commerce power (as almost all commentators thought it would), but upon the separate congressional power to tax. This power was commodious enough — Roberts concluded — to accommodate Obamacare.

Calling the penalty a “tax” was quite a stretch. It was nonetheless within the bounds of reasonable professional opinion. It was not, in other words, any sort of political call by the chief justice.

Roberts also found a way out of the state conscription problem. His solution was to soften the financial blow to states which might opt out of Medicaid, thus leaving in place a financial inducement somewhere this side of coercion. This too was a stretch. But it is a plausible call, one which attracted enough votes from the court’s liberal wing to save PPACA from invalidation.

Those who hold PPACA dear will probably credit Roberts with a bold stroke of judicial statesmanship. Those less enamored of Obamacare will wonder if he tried too hard to save a grievously flawed piece of legislation. I am certainly no admirer of PPACA. I am inclined to think, nonetheless, that Roberts called this one as he saw it.

Gerard Bradley is a professor of constitutional law at the University of Notre Dame.