READING THE SUPREME COURT DECISION ON HEALTHCARE
Regrettably, the reading of Supreme Court opinions often falls only to lawyers. There is much that is technical in them, but most (in cases such as the Affordable Care Act) relates to policy, to the nature of our social contract with each other, and the application of close logical analysis to a given set of facts.
Some opinions soar with rhetoric, or with literary allusion. Some opinions purport to expose the essence of the American experience. Some anger and offend. Some are just really good to read so as to inform the current debate. Chief Justice Roberts’ decision in the Affordable Care Act case is in that last category.
I pause to speculate as to how many have read it. I suspect many who comment on it have not; although it is possible that the misstatement of its contents by politicians is manipulative and purposeful, relying on the near-certainty that the average voter is not going to read the sixty pages (almost 200 pages with syllabus and dissents).
I submit that anyone truly interested in bringing an open mind to the current election must be a reader. That class of people may be quite small, of course; research has shown that very few people ever change their mind during an election, and (although this is speculation and not supported by research) I suspect that those few who do change their minds are not usually driven by what candidates say about Supreme Court opinions.
All this is a pity. Justice Roberts, much maligned as a tool of partisan politics, has for whatever reason written an elucidating and wholly enjoyable opinion, and one that informs our understanding of just what our government is all about. Cynics may say that Roberts was forced to swing in favor of the statute, at least in part, in order to assure his Court’s legacy and save himself from the historical judgment of partisanship at the expense of jurisprudence. That suspicion may be bolstered by Justice Kennedy’s view of the unconstitutionality of the Act, but whatever the reason the majority opinion itself is satisfying to read, subtle to think about, and destined to be over-simplified for political gain in the current election environment.
What does it say? Really say?
The individual mandate of the statute says that the vast majority of people without other health insurance coverage must pay annually what is called a “shared responsibility payment” to the IRS, to be collected like a tax and to be measured based on income (but never below $695 nor more than the cost of a certain model health insurance policy which covers far less than most solvent Americans would consider to be adequate). There never was serious question of whether the Congress could do this and call it a tax. But Congress (the Democrats, to be fair) called it a penalty and based it not on the Constitutional power to tax but on the Constitutional power to regulate commerce. (States have general powers to do anything not delegated to the Federal government by the Constitution and we call these State functions “police powers.” The Feds have ONLY the powers granted [enumerated] by the Constitution.)
Citing ample prior authority, the majority opinion held that the power to regulate commerce presupposed there was commercial activity. Someone who did not buy insurance was not engaged in an act of commerce. The majority rejected the argument, embraced by the more liberal justices, that sooner or later everyone goes for health care and thus being in the commerce of health care is never an “if,” only a “when.” The majority was concerned that if the Federal government could regulate doing nothing by calling it commerce, there was nothing it could not pass laws about.
Citing other ample authority, and noting that something is what it is, and not what its label says it is, the majority found that the payment required of the uninsured was in fact a tax. (They did not even find it was a tax for all purposes, there is a fascinating analysis much ignored as to why it is NOT a tax as a matter of legislation; they just found that it was a tax in the Constitutional sense of the word.)
The second part of the law subject to review extended Medicaid coverage. Previously, such coverage benefited pregnant women, children, people over 65, and people earning 2/3rds of the Federal poverty level. The extension covers everyone in a family earning less than 133% of the poverty level. Many states brought suit to declare this provision unconstitutional, as forcing the states to cover this expanded population. Their basis was this: if a State refused to provide such coverage, it would lose all funding for all other Medicaid programs now existing, which result was coercive. The majority said that this was indeed coercive, in effect forcing the States to adhere to a Federal policy by a grossly disproportionate penalty imposed in an unrelated area. The majority struck the requirement that States adopt the expansion, leaving them the option to do so voluntarily.
While State resistance to the Medicaid expansion is to my mind difficult to understand, particularly since the Federal government will pay initially 90% of the cost and never less than 80% in exchange for which virtually all State residents will be insured (thereby improving the public health of the population, protecting the economics of local hospitals, and protecting the taxpayer base from having to pay for uninsured medical expenses incurred by the uncovered), the Court was deciding Constitutionality, not policy, and found the expansion unconstitutional.
There is much embedded philosophy in the Roberts opinion and indeed speculation had been that if Justice Kennedy had been in favor of the mandate premised on the Commerce Clause (so that it would have been found Constitutional by a 5-4 vote anyway), then Roberts would have surely voted that way also, making the vote 6-3 but ensuring that he (Roberts) could write the majority opinion. The Roberts opinion is full of reassuring signals to conservative constituencies, indicating the limited reading Roberts wants this opinion to have. Witness the following among others (all internal punctuation and references to cases are omitted):
* “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.”
* “Proper respect for the co-ordinate branch of the government requires that we strike down an Act of Congress only if the lack of constitutional authority to pass the act in question is clearly demonstrated. Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.”
* “The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”
I omit discussion of the dissents which are, in the aggregate, twice as long as the majority opinion. They are not the law of the land, and political debate will revolve around spinning and misrepresenting the majority; it is ambitious enough here to attempt to state clearly that which WAS DECIDED, as a point of reference in what will become a sea of distortion. Indeed, already Democrats are ignoring the unconstitutional finding on the Medicaid part of the Act which leaves 50 Million people potentially uncovered, and the Republicans are trumpeting the startling revelation that what we have here is a tax imposed by Democrats, even if patterned after Governor Romney’s successful Massachusetts legislation.
The opinions (majority and dissents) discuss at a fundamental level the theories of American democracy and the pressure that the Constitution is placed under by a country infinitely more populous and sophisticated and modern that the colonies at the end of the 18th Century. Some of the more arcane discussions are not even touched upon here, and may be too lawyer-ly to be of general interest. But rather than sitting on the beach this summer with Fifty Shades of Grey, I suggest instead reading Fifty Shades of Governance, as written by Chief Justice Roberts. It is, in its own way, far sexier.