In my first pass through National Federation of Independent Business v. Sebelius, I am alternately stunned, fascinated, confused, and relieved. The more I think about it, though, the more I realize that big business was the big winner today.
Chief Justice Roberts delivered the opinion of the Court, upholding nearly all the provisions of the Affordable Care Act (aka "Obamneycare"). Justice Kennedy, usually the swing vote, joined on the right-wing dissent.
In a nutshell, the court ruled:
- The Anti-Injunction Act didn't bar the suit;
- The individual mandate can stand; but
- Congress can't cut off Medicaid funds to states if the states fail to expand Medicare coverage.
The Court decided the first two points on mutually-contradictory grounds. The Anti-Injunction Act prohibits people from filing suit "for the purposeof restraining the assessment or collection of any tax." So if the individual mandate is a tax, then no one can sue to stop it until after it actually takes effect. Under the individual mandate part of the ACA, the law says if you don't buy insurance as mandated starting in 2014, you have to pay a "penalty" to the IRS. Well, said Roberts, if Congress says it's a penalty, then it's not a tax, and so the Anti-Injunction Act doesn't apply. In other words, if Congress says something is a horse, then you can't sue it to keep it from flying.
In law school, we learn a Jedi mind trick called "permissibly advancing mutually-exclusive arguments." That is, a lawyer is not only permitted but expected to offer all reasonable theories of a case when making an appeal, even if they don't make any sense when viewed all together.
Say a lawyer is appealing a murder conviction. She may, with the Court's blessing, argue: "First, the judge used the wrong set of jury instructions. Second, the jury was tainted by the prosecutor. Third, the judge improperly let my client's confession into evidence. Fourth, the eyewitnesses who testified they saw my client kill the guy were tainted by the prosecutor. Fifth, the judge should have allowed my client's rabbi to testify. Sixth..."
Obviously, they can't all be true. And a reasonable person (other than a lawyer) might surmise from the arguments that, really, the client's a murderer. This is the sort of thing that (a) makes people hate lawyers and (b) provides us with safeguards against the legal process running amok. It's not obvious to most people, but the ability to make all possible arguments on appeal, even if some are self-contradictory, is much fairer to everyone than trying to guess which one argument will prevail.
After that explanation, it should come as no surprise that the Court found the individual mandate constitutional because it's a tax. Yes, Congress called it a horse; but it's a duck after all, and ducks gotta fly. "[I]t is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning thatdoes not do so," Roberts said in the Court's opinion today:
As we have explained, "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read....
I should underscore here that the Court said the individual mandate is not constitutional as a regulation of interstate commerce or as a "necessary and proper" act of Congress. This, I believe, is how the four moderate Justices got Roberts on board. Roberts seems like a true conservative. He generally doesn't want to overturn acts of Congress, but at the same time he generally doesn't to expand Federal power. He writes: "The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax."
Similarly, he overturns the Medicaid expansion program, with its penalty of withholding substantial Medicaid funding if states don't comply, as:
much more than "relatively mild encouragement"—it is a gun to the head. Section 1396c of the Medicaid Act provides that if a State’s Medicaid plan doesnot comply with the Act’s requirements, the Secretary ofHealth and Human Services may declare that "further payments will not be made to the State." 42 U. S. C. §1396c. A State that opts out of the Affordable Care Act’s expansion in health care coverage thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it.
(Emphasis in the original.) He goes on, rebutting a point Justice Ginsburg makes in her concurrence:
The Medicaid expansion, however, accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly, and needy families with dependent children. See 42 U. S. C. §1396a(a)(10). Previous amendments to Medicaid eligibility merely altered and expanded the boundaries of these categories. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health careneeds of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer aprogram to care for the neediest among us, but rather anelement of a comprehensive national plan to provide universal health insurance coverage.
Ah, there it is. The bugbear. The Policy that Will Not Pass: National health insurance coverage.
Roberts' opinion is a grudging concession to the 21st century, not a victory for progressives. His rationales for overturning Medicaid expansion, and for rejecting two good reasons for the individual mandate are designed to prevent a future Congress from moving to a single-payer system in the future. The opinion holds the line on keeping wealth in private hands, which, after all, is the right's principal goal. Private interests—insurance companies—will continue to profit from what ought to be a public service. (Don't forget: big insurance companies wanted the mandate, because it solves a huge business problem for them.)
Today is a win for the American people, and for President Obama; but Roberts, no idiot he, made sure it was a win for the big-business right as well.
(If I have the stomach for it, I'll read the Alito dissent later today.)