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……….
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)