“One cannot help but wonder whether this apparent support [for President Obama] by America’s younger generation reflects a thoughtful assessment of the future of America, or if it harkens back to high school student body elections, where superficial popularity carries the day. Do young voters base votes on critical thought about policies, or on the candidate’s ability to shoot hoops, text on a Blackberry, and fill out an NCAA bracket?”

Why Obamacare is Bad for Young People

SCOTUS’s Puzzling Decision on ACA

Last Thursday, the Supreme Court ended its term with the eyes and ears of the whole nation on its final say on the constitutionality of President Obama’s health care reform legislation. The Court ended up with a 5-4 decision upholding the most controversial provision of the law and the legislation overall, while striking down the Medicaid expansion provision; overall, a political victory for the President and the Democrats. If you were like me, my eyes were glued to my Twitter feed that Thursday morning, and I have to express my disappointment with the Court’s decision when I first read the scoreboard. It befuddled me how the Court could possibly come down upholding the law after its much more dramatic grilling of the Government at the March hearings, on top of legal scholars across the country doubting the constitutionality of the individual mandate under the commerce clause. As a former student of constitutional law, I set forth to discover an answer for myself. I read through the Court’s 59-page decision penned by Chief Justice Roberts,  Justice Ginsburg’s 61-page separate concurring-in-part-dissenting-in-part opinion, as well the join dissent. The process was tedious to say the least, but I come to understand the political nature of the decision better through Roberts’s puzzling reasoning, as well as a glimpse of the behind-the-scene struggle between the Chief Justice and the more conservative bloc on the court on this decision. Here are some of my takeaways. 

Chief Justice Roberts starts off his opinion with a rather conservative judicial tone emphasizing the proper role of government, citing strong federalist cases such as Marbury v. Madison and Gibbons v. Ogden, both cases acknowledge the Constitution’s inherent limit on federal powers. Roberts lends more support for this restrictive argument by invoking the tenth amendment as well as affirmative prohibitions to highlight individual states’ general “police power.” (Comstock case) However, the Chief Justice shows much deference to Congressional prerogative by opting to save the Affordable Care Act, citing Hooper v. California – as well as Parsons and Blodgett, as guiding precedents. For the Chief Justice, “It is not our job to protect people from the consequences of their own political choices.”

The Chief Justice surprised me in his rather long and puzzling opinion in a few ways, but I would like to focus primarily on this point:

Rejecting the Government’s argument for enforcing the individual mandate under the Federal Commerce Clause power, but UPHOLDING the constitutionality of the mandate using Government’s Taxing Power; all the while, calling the mandate “penalty” a “tax” for logical convenience.

As I have mentioned in a previous post, I highly doubted that the mandate would sustain a commerce clause challenge; the Chief Justice seems to agree. I appreciate Robert’s straightforwardness in his opinion for calling the mandate for what it is – a policy tool to force young, healthy adults to buy into the health insurance market to effectively subsidize less healthy individuals with pre-existing conditions. In my belief, this part of the Court opinion is a victory for limited government constitutionalists, as the Chief Justice argues, “The power to regulate commerce presupposes the existence of commercial activity to be regulated.” Roberts draws the distinction between activity and inactivity and adamantly rejects the notion that the Government can regulate non-activity, namely not being an active participant in the health insurance market. In response to those who argue the inevitability of one consuming health care sometime in his or her life, Roberts rebuts, “Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today;” for the general police power is reserved to the States. The Chief Justice also validates my argument in a previous post regarding the distinction between health care and health insurance in his concluding paragraph rejecting Government’s overreaching commerce clause argument.  

The opinion then turns 180 and Roberts proceeds to uphold the mandate, under a different power cited by the Government. This is the turning point that confuses many, and here is why. 

The Chief Justice proceeds and upholds the mandate on Government’s alternative argument based on the Federal Taxing Power. What is perplexing is that the Chief Justice rejects the notion that the mandate is a “tax” for the jurisdictional considerations under the Anti-Injunction Act, which would have barred the Court from gaining jurisdiction until people are actually taxed under the “shared responsibility payment” provision in 2014, all the while accepting that the “penalty,” for not complying with the mandate, to be effectively a “tax” in any meaningful fashion, and thus can be constitutionally construed to be within Government’s power “To Lay and collect Taxes, Duties, Imposts, and Excises” (Article I Section 8) 

You do not need a college degree to know that there is dictionary difference between the words “tax” and “penalty.” Tax is at least theoretically levied in a way that presupposes an act, namely government spending, as a before-the-fact collection of revenues; while a “penalty” is assessed based on the failure to perform an act, thus an after-the-fact collection of revenues, to penalize an unlawful act. Congress used the word “penalty” to describe failure to purchase health insurance in the ACA, and as the join dissenters point out in their opinion, “penalty” is included 18 times in the mandate article of the Act, not the tax article. It seems like the Government – and the Chief Justice – want to have it both ways: refusing to call it a “tax” to avoid a Anti-Injunction Act bar against jurisdiction, while calling it a “tax” for constitutional purposes of saving the provision. This blatant cherry picking of jargon for an easy-way-out from a complex constitutional question cannot be more troubling.

Furthermore, the Court’s reliance on CBO’s data (that about 4 million people will not comply with the mandate and opt to pay the penalty – and thus the “penalty” is not punitive. After all, would the Government criminalize 4 million of its own citizens?) as a basis for arguing the non-punitive nature of the “shared responsibility payment,” or the “penalty,” is egregiously basing whether to call this a tax or not merely on statistical projection offered by Congress itself (37-38). Though this does not undermine the Court’s constitutional analysis e.g. United States v. Morrison, it does suggest a potential loophole for anti-Obamacare people to exploit as a way to construe the provision as a non-taxing provision, and the extent to which the Court seems to desperately latch onto this weak tax argument.

In addition to individual mandate, the Court struck down the Medicaid expansion provision that threatens to withhold federal Medicaid funding from States to be duly coercive, following precedents that bar Federal Government from commandeering state governments from enforcing federal regulatory programs.

This is victory for the States, who may or may not want to use state budgets to expand Medicaid, currently a state-federal cooperative program for the poor, the disabled, the blind, and the elderly, into an expansive welfare program doling out government checks to people making below a certain income level, a fundamental restructuring of this otherwise popular government program. The Justices dueled out on this provision reciting Government’s proper Spending Power, with Justices Ginsburg and Sotomayor coming down as the sole supporters of Government’s Spending Power argument for expanding Medicaid.

In conclusion, the SCOTUS’s decision in this highly anticipated case, ever since the 12 states initially filed suit the day the ACA was signed by President Obama, seems to me a partial victory for the limited government federalists with the Chief Justice carefully drawing lines against further expansion of federal commerce power and upholding the mandate in its narrowest form, albeit the decision no doubt delivered a political victory to the President the his Party. There has been speculations by a few legal scholars on how the Chief Justice may have switched vote last minute through the use of certain language in the dissent, which perhaps was once the majority, as well as suggestions that Roberts has been ostracized by the conservative justices for his knee-jerk vote with the majority. The mystery remains: did the Chief Justice really switch his vote since the March hearings? Perhaps he is cognizant of the public ire on either side, particularly sensitive to a renewed wave of liberal bashing of a highly partisan, conservative court, not unlike the aftermath of the Bush v. Gore decision. As the overseer and protector of institutional legitimacy, Roberts needs to consider not only the constitutional precedent he is setting but also the image of the Court in the eyes of the public and other branches of government. That is a tall order. In any event, I do believe the decision has reenergized the Republican base to be more active throughout this summer with fundraising, media campaigns, and stump speeches drawing clear policy distinction between the GOP and the President. The Romney Campaign reported raising $4.7 million the day after the ACA ruling. The Republican House is poised to have another vote to repeal Obamacare on July 11th. A new Rasmussen poll released over the weekend shows that 52% of the public is against Obamacare. The Republicans have a chance to redefine the debate and make this November election a referendum on President Obama’s signature domestic policy reform. The stakes couldn’t be higher, as this country is on the cusp of ushering in a third wave of progressivism that will extend ourselves deeper into a fiscal hole. 

Supreme Court’s Expected Ruling on Obamacare

“Can you create commerce, in order to regulate it?” – Justice Kennedy’s question to Solicitor General Donald Verrilli Jr. on Day 2 of ACA hearing back in March

Now I am not a constitutional scholar, nor am I a health policy expert. With that said though, I do have a few points to throw out there as an concerned citizen watcher on this issue for purposes of making some sense out of this riveting battle over federal power – one may suggest a new landmark ruling on commerce clause jurisprudence. This Thursday, the Court will decide on the constitutionality of the Affordable Care Act (ACA). Here are a few constitutional blah blah blah to think about:

1. Commerce Clause has been the main source of power that the federal government is citing in this case to enforce individual mandate as an integral part of the ACA. Wickard v. Filburn has been a case repeatedly cited by all big-government regulators as the “precedence” to expand federal power to regulate interstate commerce. Wickard established the so called aggregation principle, in which it essentially argues that small things add up, and so individual violations of a regulatory standard may undermine or defeat the purpose of the intended regulation itself, and thus cannot stand. Similarly applied, if individuals do not purchase health care insurance, then in the “aggregate” all of those without insurance, whether they choose to not purchase or they cannot afford to purchase, add to the burden of the health care system overall, transferring cost to others; and thus, according the Obama administration, this cannot stand, under the logical extension applied under Wickard. 

2. However, following a more closer precedence set under United States v. Lopez (1995), commerce clause is construed to govern those activities that have substantial relations to interstate commerce and are economic in nature. The decision to not purchase health insurance is a form of inaction, inactivity that is not within the scope defined under Lopez. To characterize that the decision to not do something to be within the regulatory scope is expanding the reach of federal power indefinitely, which violates the principle of federalism that attempts to protect individual liberties. 

3. Lastly, there exists a nuanced distinction between health care and health insurance. Amidst all the debate, this distinction is lost, and the two separate markets seem to mesh in the minds of the ACA constitutional advocates. One can consume health care without health insurance, albeit expensive under the current system. The individual mandate seems to mix the two markets into one broad regulatory provision: you have to buy insurance or pay a fine. Not every American is IN the health insurance market; though it can be argued that we all consume health care sometime in our lifetime. One does not need insurance to use emergency care or in similar life-and-death medical situations. The status quo is far from ideal – and expensive, but to prescribe individual mandate to solve the problem is not constitutionally sound. One does not need to buy automobile liability insurance, if one chooses not to be on the road. Therefore, the distinction between who is actually in which market matters to whether the government have the power to regulate under the Commerce Clause. In this case, the blanket mandate provision goes too far in regulating too broad a population, namely those not already in the health insurance market (hence Justice Kennedy’s question for the Solicitor General back in March)

These are not all the constitutional issues at hand. The Court will also explore the taxing power used by Congress in ACA in tomorrow’s ruling. Let’s hope that the justices are still on the side of liberty and freedom, who will honorably scream STOP to big government solutions that are seemingly innocuous in the short run.