Obamacare Reax

So SCOTUS has spoken on Obamacare.  Let me talk about what questions were addressed in the case:

• Is the individual mandate that imposes a penalty for those who do not purchase health care a tax?  The majority, led by Chief Justice John Roberts, said that the mandate is a tax under Article 1, Section 8 of the Constitution.  He said based on judicial precedent  (Hooper vs. California) that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”  By citing Congress’ authority to “lay and collect taxes” under Article 1, Section 8 of the Constitution, the individual mandate is cited as constitutional.

• Does the individual mandate (which is never directly labeled in the 2,000 plus page legislation) fall within the limits of the Commerce clause in the Constitution?  The majority, again led by Chief Justice Roberts, said that that “the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause.”  In layman’s terms, an individual mandate exceeds Congressional authority to compel one to buy health insurance.

• Is the individual mandate “severable” from the rest of Obamacare?  Since the individual mandate was ruled constitutional, this question was rendered moot.

• Should states be conscripted to pay for the expansion of Medicaid to uninsured adults? The majority, led by Chief Justice Roberts, stated that states cannot be conscripted to expand Medicaid through a threat of loss of funding.  They can be given “incentives” to expand Medicaid, but not coerced.   Thus, individual states can opt-out of Medicaid expansion.

So to sum it up, Obamacare survives largely based on Chief Justice Roberts’ threading the needle that the individual mandate is a tax.   So Obamacare lives on for now, although not in its complete form.

But I assume as readers of this blog that you are not surprised by the decision.  Recall my comments on March 27.

“While many of my colleagues who oppose Obamacare believe that it will be overturned in June through a ruling of an unconstitutionality of the individual mandate and that since it is not severable, I’m not one of them. I’ll just say for now that while many think that Justice Anthony Kennedy is the swing vote on the issues in this case based on his previous jurisprudence history, I disagree. I tend to think the swing vote in this case in no other than Chief Justice John Roberts. Why? It’s based on my observation of his confirmation hearings and his previous history.

In particular:

•   In his confirmation hearing, Chief Justice Roberts stated that he does not have a comprehensive jurisprudential philosophy. In fact, he explicitly stated that he did not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document"

•   Chief Justice Roberts has shown a great inclination towards “judicial modesty” in pragmatically approaching different issues of jurisprudence. So while he has proven to historically show a deference to federalism in his rulings, he’s one that does not believe in “legislating from the bench” as he said in his confirmation hearing regarding the judiciary’s role in reviewing acts of Congress:

"The Supreme Court has, throughout its history, on many occasions described the deference that is due to legislative judgments. Justice Holmes described assessing the constitutionality of an act of Congress as the gravest duty that the Supreme Court is called upon to perform. ... It's a principle that is easily stated and needs to be observed in practice, as well as in theory.

"Now, the Court, of course, has the obligation, and has been recognized since Marbury v. Madison, to assess the constitutionality of acts of Congress, and when those acts are challenged, it is the obligation of the Court to say what the law is. The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the part of the judges and becomes what I think is properly called judicial activism, that is certainly the central dilemma of having an unelected, as you describe it correctly, undemocratic judiciary in a democratic republic."

Thus, based on Chief Justice Roberts’s jurisprudential philosophy of calling “balls and strikes” and his history of promoting “judicial modesty” and respecting precedent, I’m thinking that he is the Justice to watch in this debate. In my myopic opinion, before the arguments are completed, I’m of the opinion that Obamacare will either be upheld in total or the individual mandate will be ruled in violation of the Commerce Clause, but severable from the rest of the law, leaving the country with a whole lot of new regulation that will be very expensive to implement. But we will see what happens. If you read what I said, you not only would know I mean what I say, but you wouldn’t be surprised with what happened.

I’m chary to gloat.  But I will say I did get some responses similar to this one today:

“You are wasting you time in business. Get to the Law School #WestBankSweep” (I earned two masters degrees: Masters of Public Policy and a Master of Business Administration, from the “West Bank” of the University of Minnesota)

I’m not a lawyer and I don’t plan to go to law school, but as an observer of current events, this result doesn’t surprise me at all simply because of what I said in March: 1) the Chief Justice doesn’t have an all-encompassing judicial philosophy and 2) he’s deferential to legislative authority.    I call it as I see it.

What will happen now?  We’ll see.  However, in my myopic opinion I have a couple conjectures:

• Healthcare will become a central issue of this fall’s election. While many opponents of Obamacare will say that by interpreting the individual mandate as a tax is legislating from the bench, Chief Justice Roberts essentially threw the issue back to Congress to address the policy issue.  In fact, the Chief Justice lowered the threshold to repeal Obamacare altogether since he made it a budget issue, which means only a simple majority of both houses of Congresses and a President’s signature is needed to repeal it.   Throwing that question out there in a middle of a Presidential election campaign certainly draws a contrast in choices of candidate.

• Mitt Romney will be helped financially through his campaign coffers, yet the rhetorical argument will have to be quite nuanced since Obamacare largely used Romney’s health care reform in Massachusetts as a model.  Romney argued in the primary that having everyone pay at least a penalty to deter “free riders” in the Massachusetts health care system.    That’s exactly the argument that supporters of Obamacare use.  Kind of hard to oppose something where its supporters are using the opponent’s old argument.

•  I have a better feeling that to get even more conservatives enthused about Romney while also addressing his shortcomings in addressing the healthcare issue, Bobby Jindal VP nominee chances have improved notably.  Who better to be advocate to repeal Obamacare than someone who was Assistant Secretary of Health and Human Services for Planning and Evaluation and also has opposed Obamacare as a governor?

However, those are just my myopic opinions.  Feel free to comment.