(Allan Haley) Supreme Court Does the Unexpected

Article Updated 9:30 pm 28th June – see the full article on the Anglican Curmudgeon link
The Supreme Court has ruled, 5-4, that the individual health care mandate passes constitutional muster as a tax, even though it is invalid under the Commerce Clause:

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.

In other words, if you don’t want to follow the mandate, you pay the tax (penalty/fine … whatever). Chief Justice Roberts sided with the liberals in upholding it as a tax, and joined the conservatives in finding that it violated the Commerce Clause, and could not be sustained under the Necessary and Proper Clause. (That is actually a big win, because it puts a limit on Congress’ ability to enact future social welfare laws.)

At the same time, the conservatives (again with the Chief Justice) managed indirectly to limit the application of, but not invalidate entirely, the Medicaid provisions. Justices Ginsburg, Breyer, Sotomayor and Kagan would have upheld the Medicaid provisions just as Congress wrote them, including the discretion granted to the Secretary of Health and Human Services to withhold “all or any part” of a State’s Medicaid reimbursements unless it provided the expanded coverages that Congress added through the Act. Chief Justice Roberts viewed the grant of this discretion as too coercive

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

The four dissenters agreed, but regarded the rest of the Medicaid provisions as non-severable. For them, accordingly, the invalidity of the discretion granted to the Secretary meant the invalidity of all of the Medicaid expansion provisions. This would have left the rest of the Medicaid provisions in limbo, with four voting to strike them down in toto, four voting to uphold them in their entirety, and the Chief Justice wanting only to limit the application of one particular part. By concurring in part IV.B of his opinion (agreeing to keep the rest of the Medicaid provisions intact), therefore, the liberals led by Justice Ginsburg produced five votes in favor of keeping the other provisions as enacted, while the Chief Justice and the conservatives constituted five votes to curb the Secretary’s discretion. And that, dear readers, is an instance of the politics of the Supreme Court in action.

Bottom line: we are stuck with Obamacare largely as passed. The vote of Chief Justice Roberts saved most of the Act, 5-4, and limited (by the same margin, 5-4) the one part of the Act he did not like. He voted with the four liberals to uphold the mandate, but with the four conservatives to limit the conditions that Congress can attach to Medicaid funding……….

Read more here and [the unofficial but well informed] SCOTUS liveblog is recorded here with links to press coverage and articles.

Also Lyle Denniston: “Don’t call it a mandate – it’s a tax” SCOTUSblog (Jun. 28, 2012, 11:07 AM EDT)

and Kevin Russell Court holds that states have choice whether to join medicaid expansion SCOTUSblog (Jun. 28, 2012, 11:16 AM EDT)

The SCOTUSblog menu of links for the day are here and see also the Special Feature: Post-decision Health Care Symposium]

NPR: Interactive: Inside The Health Care Ruling


Posted in Uncategorized

36 comments on “(Allan Haley) Supreme Court Does the Unexpected

  1. jkc1945 says:

    NO, the bottom line is NOT that ‘we are stuck with Obamacare. . .”

  2. Br. Michael says:

    Virginia Attorney General Ken Cuccinelli’s reaction to the U.S. Supreme Court’s ruling upholding the key provision of President Barack Obama’s health care overhaul: “This is a dark day for the American people, the Constitution, and the rule of law. This is a dark day for American liberty.”

    [blockquote]”This unprecedented decision says that Congress has the authority to force citizens to buy private goods or face fines — a power it has never had in American history, and a power King George III and Parliament didn’t have over us when we were mere subjects of Great Britain,” Cuccinelli continued. “Since the federal government itself could never articulate to the court a constitutional limit to this power, Congress has gained an unlimited power to force citizens to buy anything.”[/blockquote]


    This is the end of the United States as we have known it. From now on we have a whole new system of government.

  3. jkc1945 says:

    Sorry, my comment was accidentlly abbreviated. We are NOT stuck with Obamacare as passed. We always have had the right, as the American electorate, to change the make-up of the Congress, and to change the occupant of the White House, and then to tell them: “We put you in there to repeal this damned law, and if you dont do it, we will be well rid of YOU, too!!” That seems to me to be what the Supremes are essentially saying, here. They are not in the busiiness of telling us, the electorate, what we can or cannot do. The Congress does, indeed, have the constitutional power to levy taxes; and if we put up with it, we deserve what we get. If we dont like it, change it this November!! And do it in such a decisive way that even the Charlie Wrangels and the Nancy Pelosis of the world, cannot miss it. It is up to us – – always has been!

  4. Br. Michael says:

    3, but the principle that this case establishes that the federal government now has unlimited power transcends Obamacare. And voting for a different party cannot put that genie back in the bottle.

    We are in the position being able to select our tyrants, but the day that whoever was elected was at least limited in what he or she could do is now gone. Prior to this decision Congress could not make you buy something or enter into a contract. Now they can. All we can vote on is which product and the amount of the tax. And it is no jump to require someone not to do something or pay a tax. Indeed that was Wickard v. Filburn.

    This is the day that liberty ended.

  5. jkc1945 says:

    Br. Michael, I respectfully, disagree, because I remember (with a chuckle, actually) that the American public said the very same thing when FDR brought in his ‘New deal.” Liberty was doomed, we said, and we said it a lot, brother. But then. . . . we re-elected that sucker, three more times!! My point? Simply that liberty is impossible to kill, once born. You will Never take away my liberty, I guarantee it. You can kill me, of course, but on my dying breath, I will declare my liberty. And the fact, in this instance, is still – – we broke this, ourselves, and we can fix it. IF we will. . . . . if we will.

  6. Br. Michael says:

    5, you are perfectly free to declare your liberty from inside a jail cell or write it on your check as you pay a new $3,000 tax. I guess liberty was present in Stalinist Russia too. And yes liberty died under FDR it just took until now for the circle to be closed.

  7. Capt. Father Warren says:

    #5, ever since FDR [and in fact, even before him], liberty has been shrinking. Today it was a quantum change for the worse. So, the statement “liberty was doomed” turns out to have been pretty much on the mark.

  8. Brian from T19 says:

    Does anyone have some drama to go with this hyperbole? A new government??? What about auto insurance? Mandated by the government or fines ensue. What about licensing? There are always other countries to move to if it gets too bad 😉

    [On a day when emotions are running high, please try to avoid being unnecessarily provocative Brian – thanks for your help – Elf]

  9. Scatcatpdx says:

    Two years ago I was only making $230 a week in unemployment. $800 month for rent, bus fare (I could not afford gas), and insurance. 30.0 a week for food and the church helped me out. I could not afford healthcare and relied in Veterans Administration. How poor is going to afford $695 annually. Yes this is big government take over helped by conservatives who that Obama was better than any rino by sitting out and not voting fr McCain. Good job conservatives.

  10. Br. Michael says:

    Brian, do you not know that the state and federal governments are different sovereigns with different powers. The states can require you to have auto insurance the federal government can’t. The states have unlimited powers (it is called “the police power”) the federal government was created with limited powers.

    In addition as Mr. Haley has observed driving is a privilege granted by the individual states and they impose their own requirements for you to exercise that privilege.

    This opinion has given the federal the same sort of police power that was heretofore the sole province of the states. It is a very big deal and forever alters the the US Constitution. We can no longer claim that the federal government has limited powers.

    From now on the power of the Congress and President is limited by what they won’t do, not what they can’t do. Liberals may very well come to rue the day when unlimited government power is directed at them.

  11. Sarah says:

    [i] Comment deleted by elf. [/i]

  12. Vatican Watcher says:

    8. Those things are privileges. The Obamacare tax taxes us for existing.

  13. Pageantmaster Ù† says:

    As a foreigner, I don’t pretend to understand all this, but to me the idea of a tax being something which can be applied as a penalty for conduct which the government is not permitted to coerce people to do directly is very strange; as is a tax which is qualified to target a specific group based on what they have not done, rather than what they have done. It all seems a very arbitrary and capricious application of law, but I am sure I haven’t understood it all.

  14. Uh Clint says:

    There’s no comparison between this and auto insurance, professional licensing, etc.

    If I don’t have a car, I don’t have to buy auto insurance.

    If I’m not a doctor, lawyer, electrician, plumber, etc. I don’t have to pay for a license to go to work.

    But with the ACA, if I am breathing, I have to pay for health insurance. No options, no alternatives – and saying “well, move somewhere else” isn’t a reasonable argument, since the debate is over what those living here in American are obligated to do.

  15. Br. Michael says:

    12, you have it right exactly.

  16. Bookworm(God keep Snarkster) says:

    I’d guess Roberts is playing a long game of political chicken, and only time will prove it foolish or not. Allegedly, Romney has had $1 million in additional campaign donations since this morning.

    And it won’t be too long before all the Socialists run out of other people’s money. Have you ever noticed that all the hacks who preach “the redistribution of wealth” manage to avoid redistributing their own?!

    I am thrilled to be living in the most conservative state in the Union. 🙂

  17. Pageantmaster Ù† says:

    #14 Br Michael. Thanks – as a Brit I have to say I have been in two minds. It would be good if a people who could send men to the moon could also look after its poorest without bankrupting them when ill. We pay heavily in Britain for that coverage through tax. It is probably the largest part of the government budget, and I am glad we do; but whether Obamacare is the answer in the US, I am not qualified at all to express an opinion.

    I am not again sure if I have understood it, but I wondered if today’s decision whatever the future of Obamacare [and I see there are moves to repeal it], is not a major change in the relationship of US Federal government to the States and Citizens: what is the value of a limit on government to require people to do something, if the government may by a ruling such as that today, ‘tax’ them for not doing so? Is that not a huge thing?

  18. Br. Michael says:

    16, again you are right. Here is the my concern and my point. In the UK Parliament has the “police power”. They can pass any law they like. In fact Parliament is the British Constitution.

    That is not the way we set up our Government. The founders didn’t want that. We have duel sovereigns–the states (former colonies) and the federal Government. The stats (former colonies) have the police power, that is the same power that your Parliment has. The federal Government, in contrast, only has that power that the states and people gave it. The best policy in the world can’t be enacted by the federal government if it doesn’t have the power.

    For me that’s all this had ever been about. For constitutional conservatives like me liberty is preserved by having limited government. Today’s opinion has done away with the concept of limited federal government. For me the decision just repealed the American Revolution. We have lost our libery to liberal/progressive tyranny. George III has won (no offense).

  19. Pageantmaster Ù† says:

    #17 Thanks Br. Michael for explaining, and it is just the battle we have in the UK with an increasingly federalist Europe taking powers to itself. I am not sure George III would have wanted oppression; but some in Parliament got the situation in America very wrong in the way they tried to coerce the American colonies, against the advice of William Pitt, I admit.

  20. Capt. Father Warren says:

    Br. Michael does sum it up well. The 13 colonies DECIDED to have a central government for the limited purposes of defense, promoting trade, protecting inventions, and taking care of big projects [roads, canals, dams] that the states just couldn’t tackle effectively. Today’s ruling does repeal the American Revolution. In fact we are worse off than Britain with Parliment. Our congress is toothless, the Courts can pass laws all day and night, but the imperial Presdent decides which ones he likes or doesn’t like.

    We have lost POTUS [President of the United States] and instead have gained DOTUS [Dictator of the United States].

  21. clayton says:

    Some of you might want to read [url=http://uscode.house.gov/download/pls/26C48.txt]the actual parts of the bill related to the tax/penalties[/url].

    Note the parts that exempt people who cannot afford it (defined as premiums costing more than 8% of income, for people who otherwise meet the income threshold for paying federal income tax), and people who don’t make enough to pay federal income taxes. Also note that there are no criminal or property penalties for not paying the tax.

    (A) Waiver of criminal penalties
    In the case of any failure by a taxpayer to timely pay any
    penalty imposed by this section, such taxpayer shall not be
    subject to any criminal prosecution or penalty with respect to
    such failure.
    (B) Limitations on liens and levies
    The Secretary shall not –
    (i) file notice of lien with respect to any property of a
    taxpayer by reason of any failure to pay the penalty imposed
    by this section, or
    (ii) levy on any such property with respect to such

    So it’s a pretty toothless requirement. No one is going to jail or having a lien placed on their house over this. It’s pretty much, “pay it or…we’ll suggest that you pay it again.” It makes the hyperbole less fun, though.

  22. jkc1945 says:

    OK, somebody tell me authoritatively what I am missing here. I see a lot of concern here about “the loss of liberty” and “the day the republic died” types of statements, but I just don’t see that, and here is why:

    1. If 60-65% of the voting public is against ‘Obamacare,” as recent polls seem to indicate, and
    2. if similarly large numbers of the voting public are staunchly against new taxes or the raising of current taxes, as also seems to be the case, and
    3, if there is an election in November, in which at least one candidate is against ‘Obamacare,’ and at least says he will work to repeal it, and
    4. If the entire House of Representatives, and 1/3 of the Senate, are up for re-election, or more specifically, up for being sent packing,
    what is the problem? Surely, if the polls are right, and if we care about the future of the republic (and I, for one, do care, as do you folks) then what is to keep us from sending the current White House occupant back to Hyde Park, and voting in veto-proof majorities in both the HR and the Senate, and then demanding that the new President do what he ways he wants to, and repeal this thing? UNLESS, fewer people really do care enough to get up on Tuesday in November, and actually go vote!! Now, THAT can be a problem. But if it is a problem, as it has been in the past, we pretty much get what we deserve, isnt that right? What am I missing?

  23. Sarah says:

    Hi elves — it was certainly off topic but once again you misunderstand and misuse the words “ad hominem” which relates to attempting to respond to an argument via assessment and judgement of the person making the argument. I made no attempt whatsoever to respond to an argument by Brian, since he made no argument. An insult is not an “ad hominem” argument; it is merely an insult.

    I made a public assessment of his person. And happily so.

    I recognize that this comment is off-topic as well — your rules, your blog — and that it will be deleted — just want to place myself on the record.

  24. Brian from T19 says:

    #10 Police powers have been extended to the Federal government through various Clauses in the Constitution-these are the things imposed uniformly across the States. For example, regulation of driving through the imposition of uniform laws across States. As for rights vs. privileges, has anyone heard of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)? The Drug Enforcement Agency (DEA)?

  25. QohelethDC says:

    [i]We have lost POTUS [President of the United States] and instead have gained DOTUS [Dictator of the United States].[/i]

    That’s a bit of an overstatement imho. Had the court ruled the other way, which was quite possible, the President would have abided by the decision. Today’s ruling, moreover, in no way impedes the people’s right and opportunity to replace President Obama if they so desire, nor does it stop the Republicans from attempting to repeal the ACA.

  26. Capt. Father Warren says:

    [i]the President would have abided by the decision[/i]

    Really? As in the DOMA? As in Illegal Immigration? As in the invoking of Executive Privilige in Fast and Furious, something which he claims to know nothing about and has never ever been involved with? As in his EPA enacting Cap & Trade despite Congress voting it down? As in his DHS refusing to enforce border security laws on the books? I’m sure you get the point…….

  27. David Keller says:

    22–?. There is no requirement that states have uniform traffic laws, and in fact they don’t. A simple drive down any interstate will reveal that. The only way the Federal Government has to cause any enforcement of uniform traffic laws is to peg Federal funds to accepting a certain provision of the law. An example would be the 21 year old drinking law. It is NOT required for any state to do that; but if they don’t they lose their Federal highway funds. Same thing when we lowered the speed limit to 55. The tyranny of an overbearing federal government comes from the states having abbrogated their soverignty for “free” money.

  28. Charles52 says:

     could also look after its poorest without bankrupting them when ill. 

    Actually, we can and do at the local and state levels, through public services that are, in some cases, better care than I get through insurance. Are there gaps? I think so, but there are reasonable, less draconian measures for bridging the gaps. Personally, I am for universal health care. Universal health insurance may not be the best way to provide health care in a diverse nation of 300+ million people.

  29. Pageantmaster Ù† says:

    #26 Charles52 – indeed, I wouldn’t presume to know what the best system is for the US. Ours is, notwithstanding the occasional scare stories, pretty good in my experience, but then we pay a lot of tax, so that is how we fund it.

    At the end of the day, someone pays for healthcare; either that, or people go without. I am aware of the emergency and basic cover available for the poor. The groups who always seem to bear the brunt are those who are outside the poorest category, but who may have a small income and a few savings and an existing condition. I gather the way health care is set up in the US, the funding arrangements lead as some have noted, to providers having to pick up the bill on late payment or non payment so distorting the fee structure as this uncertainty has to be built into charges for those who do pay.

    Similarly, the high level of litigation payouts for any form of medical injury knocks on into prohibitive practitioner malpractice insurance and high costs. Someone pays at the end of the day.

    While a compensation culture is in principle a good idea, the cost to society may be in availability and cost of medical care, so something has to give.

    Moreover with us boomers all aging, it is not going to get any easier on the system.

  30. Uh Clint says:

    #20 – Clayton,

    Toothless? As written, the IRS (the enforcer for this portion of the ACA) may not be able to put a lien on your house, but-

    They can garnish your wages,
    They can attach (confiscate) funds in your bank acounts,
    They can withold your tax refund,

    and that’s just a list of the most common actions; they have others. That’s not exactly toothless………..

  31. QohelethDC says:

    Interesting take on the Chief Justice, from the Atlantic:

    [url=http://www.theatlantic.com/national/archive/2012/06/in-health-care-ruling-roberts-steals-a-move-from-john-marshalls-playbook/259121/]In Health Care Ruling, Roberts Steals a Move From John Marshall’s Playbook[/url]

  32. Charles52 says:

    Pageantmaster –

    I would never say the U.S. system is perfect, or even good, but it is not true that people can’t get care, and in my community at least, much more than emergency and basic care. As it happens, I’ve worked in and around public health systems for more than 20 years in this community and a fair few in other urban areas; as noted above, my folks generally get care equal to mine through insurance. A friend of mine retired and actually chose to use her insurance in our public system. It is more time-consuming, so I don’t use it, but may when I retire. I will say that my hospital district taxes are those I pay cheerfully, because I know it’s used well in a good cause.

    Nonetheless, American health statistics are abysmal, and it’s fair game to talk about health care as part of the subject. However (and again, based on close to 40 years working experience), “the poor” are not some homogeneous population amenable to various well-meaning social engineering projects by government or private entities. They make choices about their diet, their spending habits, their living conditions, and so on. It’s simply dehumanizing to consider them powerless victims of forces beyond their control. That is the way towards pity, arguably the most destructive of emotions. Bottom line: these are people, not statistics, and moreover, they are Americans, culturally different from the English, Canadians, Australians and so on. It’s arguable that we are crazy, but that’s who we are.

    It is accurate to be concerned about people who have a basic life, with minimal savings. As it happens, I would fall into that category, and am currently experiencing financial struggles due to health problems. That is with insurance. For me, I consider it one of life’s struggles which helps my grow, depend more on the Lord, and my friends. Well, that’s just me, and I really do support universal health care (though not necessarily universal health insurance).

  33. Pageantmaster Ù† says:

    #30 Charles52 – thanks for the background. I am truly sorry to hear you are having health problems. Prayers for relief and healing for you from them.

    I think it is fair to say that we could all, rich and poor, make a big difference to our health system by taking ourselves and our diet etc in hand earlier rather than relying on medics to sort out the inevitable consequences. But modern life is not people friendly. Stress, a sedentary lifestyle, sugar, salt and saturated fats are everywhere and that is before alcohol etc have an effect. The whole health bill would go down massively if government, food manufacturers and we ourselves acted responsibly.

    I am sure that like here, most hospitals and medical staff do an amazing job in a difficult financial and pressurised environment. I am not so sure that Americans with whom I spend a lot of time are culturally so different to people in other countries. The system and expectations are different, but people are the same worldover. There is one difference I have noted: in the US people still think in terms of the undeserving poor, which hasn’t really been thought of here since the 19th Century. There, but for the Grace of God, any of us could find ourselves.

    I think my concern, such as it is about today’s decision, is what it will mean for small US businesses with over 50 employees. For those struggling, it could just push them over the edge.

  34. Bookworm(God keep Snarkster) says:

    It’s all a rather tough row to hoe. Sometimes people have no choice, and other times the choices are overwhelmingly poor.

    Several years ago, e.g., I had an older friend who was married and trying to make ends meet. She had three kids(grown) from a first marriage, and her second husband had no kids. Her kids were self-supporting and she hardly ever had to help them out financially. Her second husband was a carpenter, and there came a time when he could not work as fast as the younger guys, and had trouble, physically, crawling around construction sites. Eventually said sites did not want to hire or use him anymore. She had a good job and a very considerate boss, but her job alone could not cover all their bills. He would have been ideal to work in people’s homes as a handyman-for-hire, but he said he didn’t want to be bothered “having to advertise”. He would have also been ideal as a salesman/consultant at Home Depot or Lowe’s(for overseas friends reading here, these are widespread, well-known American hardware stores), but he said he “didn’t want to have to learn how to work a cash register”. I could probably teach a monkey to work a cash register!! He and my friend went to the brink of bankruptcy/foreclosure because he would not work, and was too young to collect Social Security. Eventually, they moved(undesirable for her) to a place with cheaper real estate, and he took his Social Security prematurely, thus for less money as a penalty for that…the question becomes, do we owe this sort of person subsidized health care?!! He was perfectly capable of still working, and would not choose to overcome his neurotic or sluggish(or both) tendencies.

    And Pageantmaster is right about the health care $$$. I worked in health care for a good while and it was so sad to see people’s level of self-destruction–and this is now worse than in the 90’s because the population as a whole still continues to gain weight. I truly wish people would get on a healthier bandwagon before it really starts to look like The Fall of the Roman Empire…sad…

  35. Charles52 says:

    Pageantmaster – Thank you for the prayers. My problems are so much less than other folks experience and are in any case, likely to be nothing more than allergies.

    I completely agree with your concern for small business. My personal belief is that Obamacare is very bad policy, if constitutional. We would be better off with the Canadian system or yours, although I think there are good solutions that would be better for the United States.

    As to Americans abroad: well, what can I say except that I suspect we behave better in civilized countries. At home, we are quite nuts.

  36. Charles52 says:

    In case I wasn’t clear, the point was not my relatively minor health concerns, but that insurance is not the end-all and be-all of health care or financial security. Also, there is a relatively quiet continent of Americans who believe that social services are a proper concern of government, but better provided by local governments and not the Feds.