SCOTUS Ruling on the Affordable Care Act: The Basic Facts
- The individual mandate requires Americans to obtain health insurance or pay a penalty. UPHELD.
- Insurance companies cannot disqualify people who have a preexisting illness. UPHELD.
- Insurance companies cannot raise rates on the chronically sick. UPHELD.
- Children can remain on their parents’ plans until the age of 26. UPHELD.
- Force the states to expand Medicaid to cover more of the poor. STRUCK DOWN.
Writing the 5-4 majority opinion, Chief Justice John Roberts argues:
Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. “Proper respect for a 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.” United States v. Harris, 106 U. S. 629, 635 (1883). 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. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
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Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to “lay and collect Taxes.” Art. I, §8, cl. 1.
The Government’s tax power argument asks us to view the statute differently than we did in considering its commerce power theory. In making its Commerce Clause argument, the Government defended the mandate as a regulation requiring individuals to purchase health insurance. The Government does not claim that the taxing power allows Congress to issue such a command. Instead, the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.
The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads “no vehicles in the park” might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. Justice Story said that 180 years ago: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.” Parsons v. Bedford, 3 Pet. 433, 448–449 (1830). Justice Holmes made the same point a century later: “[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion).
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The Affordable Care Act’s requirement that certain in- dividuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Be- cause the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.
In the dissenting opinion, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito argue:
The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so. In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “ ‘ “[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brog- den, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.
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The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanction of a total cut-off of Medicaid funds to a supposedly noncoercive cut-off of only the incremental funds that the Act makes available.
The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.
The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism concerns and places an unaccustomed strain upon the Union. Those States that decline the Medicaid Expansion must subsidize, by the federal tax dollars taken from their citizens, vast grants to the States that accept the Medicaid Expansion. If that destabilizing political dynamic, so antagonistic to a harmonious Union, is to be introduced at all, it should be by Congress, not by the Judiciary.
The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.
The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.
News & Analysis
- WSJ: Supreme Court Upholds Mandate as Tax
- WSJ: Roberts Straddles Ideological Divide
- WSJ: Q&A: What It Means for Consumers
Opinions – Against the Ruling
- WSJ: The Editors, The Roberts Rules
- WSJ: The Editors, It’s Up to the Voters Now
- WSJ: John Yoo, Chief Justice John Roberts and His Apologists
- WSJ: James Taranto, We Blame George W. Bush
- WSJ: Stephen Moore, The ObamaCare Tax
- WSJ: James Freeman, The Ultimate Bush Disaster
- National Review: The Editors, Chief Justice Roberts’s Folly
- National Review: Yuval Levin, The New and Even Worse Obamacare
- National Review: Mark Steyn, Constituitonal Contortions
- National Review: Larry Kudlow, John Roberts Is a Super-Taxer
- NY Times: Ross Douthat, John Roberts’s Political Decision; Yes, Liberals Won; The Price of Health Care
- American Conservative: W. James Antle III, John Robers’s Betrayal
- National Affairs: James C. Capretta & Robert E. Moffit, How to Replace Obamacare
Opinions – For the Ruling
- Weekly Standard: Adam J. White, Marshalling Precedent: With Nod to Predecessor, Roberts Affirms Mandate
- Weekly Standard: Jay Cost, What did SCOTUS just do?; The Case for John Roberts
- National Review: Michael Knox Beran, Why Roberts Was Right
- Washington Post: Ezra Klein, The Political Genius of John Roberts
- Washington Post: George Will, Conservatives’ Consolation Prize
- Washington Post: Randy Barnett, We Lost on Health Care, But the Constitution Won
- Washington Post: Charles Krauthammer, Why Roberts Did It
- Washington Post: Charles Lane, John Roberts’ Compromise of 2012