Thursday, June 28, 2012

Mandate Survives !!!!

The first quick reading by CNN reporters of SCOTUS' decision is that the individual mandate was declared constitutional.    Chief Justice John Roberts joined the four liberals on this and wrote the majority opinion.

A few minutes later:   The entire Affordable Health Care Act has been upheld, the only exception being that the federal government's power to terminate states' Medicare funding has been narrowly applied.    This is a little complicated, but the ACA expanded states' Medicare coverage, and it required the states to pay a share of the cost or else forfeit their entire Medicare federal funding.  The Roberts decision simply struck down the penalty for states that do not comply.

The Roberts' majority opinion found that the individual mandate cannot be justified under the Commerce Clause, because it regulates what people do but cannot compel them to do something they choose not to do.   However, it then turned to a different justification, which is the power of taxation.  That is, Congress has the power under the constitution to tax, and the individual mandate can be read as nothing more than that, the opinion says.

 That's how it should have been written to start with;  then there would have been no question that it was constitutional.   The Obama administration did not anticipate that the constitutionality of the commerce regulation justification would be challenged, because of precedents.  But now the SCOTUS has said it is constitutional anyway, only for a different reason.

Roberts was the fifth necessary vote.  So that tea leaf reading from yesterday -- that Scalia's excessive anger was an indicator that he had lost on the health care decision -- now seems very prescient.   We can probably expect Scalia at his most scathing in his dissent to this.  He was just getting warmed up on Monday.

Also the earlier predictions, that Roberts might vote for it out of his concern for the courts' reputation, also seem well considered.   He would naturally be concerned with how The Roberts Court will be remembered throughout history.

More later.

Ralph

5 comments:

  1. This a big win for Obama. Coming on the heels of the partial win on Arizona immigration laws, and his bounce in the polls in battleground states, this is a big boost.

    Republicans will also try to use it as a reason to defeat Obama.

    Democrats have a big selling job to do, because a majority of Americans say they oppose it -- they just don't know that they do want it. They've been told all sorts of lies about it. We have to undo that.

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  2. Both CNN and Fox News got it wrong. In their eagerness to be first with the news, their quick readers just got to the part that said the mandate was not justified under the Commerce Clause -- and announced it had been struck down.

    And then had to come back and say, no, it had been upheld. Because the next section said that it was constitutional under the power of taxation.

    It pays to read on before jumping to quickly to conclusions.

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  3. Here's an intriguing idea. Someone has written that Scalia's dissent reads like it was originally written as a majority opinion. This raises the question: Did Roberts initially support over-turning ACA and then change his mind? By doing so, he changes the decision and then can write the majority opinion himself.

    If he cares about the Court's reputation and his own legacy, he would not want Scalia's negative screed to be the deciding opinion. So he found a way to say the Commerce Clause does not give the government the right to mandate people to take an action, but calling it a tax allows the act to stand.

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  4. Actually now I learn that, although everyone initially thought the dissent was written by Scalia (because some of it sounds like him) the fact is that is was not signed (and he would probably have proudly signed it, if he were the sole author). So it's probably something that more than one contributed to.

    The idea of Roberts switching his vote has more steam. A couple of very detailed wordings in the dissent show that it was written expecting to be the majority opinion. Example: there is a reference in it to Justice Ginsburg's "dissent." Well, she wound up in the majority, so her concurring opinion was not a dissent -- in the end.

    So it certainly sounds like Roberts may have switched his vote -- and thus the outcome -- somewhere in the process.

    On the other hand, the Chief Justice is always the last one to cast his vote. So what wound up as the dissent may have been written before this happened -- just expecting to be in the majority.

    We may never know, until many years from now when they're all dead and someone has access to their papers.

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  5. Not to belabor a point -- well, I guess I am belaboring a point --

    I've now read excerpts from the dissent, and I disagree with some of the above speculations. Clearly parts of it were written as though it was to be the majority opinion. But don't the justices write out their opinions and pass them around, trying to get others to agree and form a majority coalition?

    I think that's the way it works -- especially in something so controversial. I'm guess that the final dissent is cobbled together from various sources, some written before the decision was finalized and some after; and probably written by different authors.

    And no, I don't agree that it sounds like Scalia -- at least not the parts I read. But maybe they just weren't included in these excerpts.

    I supposing that the decision was a drawn out thing, as various opinions circulated, until five came together to join in the final decision.

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