The Mandate: Roberts says it's a tax.
Image: examiner.com
It’s official, it’s historic, it’s amazing: the Supreme Court upholds the core of the Affordable Care Act 5 – 4. Chief Justice John G. Roberts crosses a historic line and sides with what becomes a thin moderate majority. The individual mandate will stand. It's simple: it's a tax. While the 193-page decision will take weeks to digest, the headline is as clear as day.
Supreme Court expert Lyle Denniston, writing in SCOTUSBlog Tuesday, decried “rash speculation that the Court’s ruling is going to be driven by an exercise of political will, perhaps even partisan preference” as if that had never happened before. Yet John Roberts did parse the recent Arizona immigration decision that gave the Obama administration—and coherent federalism—a “55-45” win. Today we have to consider a virtual, a de facto, realignment as Roberts defers to the law and offers a relatively unbiased (for him) reading of the Constitution on the powers of the federal government.
It appears in the hour following the release of the summary decision that is was less a Commerce Clause decision as it was a power to tax decision. Roberts' analysis holds that the power to tax is legit here and is effectively the only punitive or corrective action the federal government can take against those who chose not to insure themselves. But given that the Medicaid expansion was also (mostly) upheld means that low income people will be able to get coverage that way, rather than paying a subsidized insurance payment through yet-to-be-developed insurance exchanges. That leaves 10 to 15 million more or less middle class uninsured who will directly face the consequences of the mandate. The tax penalty is limited to 2.5 percent of income once fully phased in, which Denniston considers to be a mere slap on the wrist, but I think the instinct to avoid taxes is a powerful motivation nonetheless.
You really have to think Roosevelt in this historic moment. The Court opposed Roosevelt with everything it had and yet, in the end, the president won. Just 27 months after the law was enacted, Obama emerges vindicated that the formerly moderate Republican solution to the nation’s inability to insure vast numbers of its populace—and to make some effort to control the costs of that care—is justice for all.
Roberts’ crossover is amazing. The four justices who opposed the law wanted to hold it entirely invalid. That left him with stark choice. He stands alone among those who voted to uphold the law in not adhering to the Commerce Clause argument, yet he found, somehow, via perhaps even a fundamental sense of ethics, the way forward for the Court as a whole.
Many of us on the so-called left found both the tax and spending power argument and the Commerce Clause argument valid. But as the decision approached even those closest to the law, people like Jonathan Gruber, an architect of both RomneyCare and ObamaCare, became pessimistic about the law’s chances. We expected a “Constitutionalist” opinion. We expected a rejection of a hundred plus years of precedent that gave the federal government room to govern an increasingly complex body politic.
One restriction on the question of Medicaid expansion seems to limit the federal government’s ability to go after a state that opts out of the expansion. That opting out would have been a nuclear option for states as they would have to come up with the money to cover those previously covered with federal money after said funds were withheld by Washington. It is unclear how much latitude is left to the states on this issue. You can’t say you want the federal money to cover your original Medicaid population while refusing to take the money to cover those newly entitled to the benefit can you? We'll see. My guess is that a news round of intermediate sanctions against states that refuse will be formulated, along the lines of the withholding of highway funds to states that refused to implement 55 mile an hour speed limits back in the day.
Some are saying that Medicaid for all under 65 is a de facto subtext of this ruling. That in itself is striking. It would mean the health care safety net is destined to become real and palpable. If, beginning in 2014, this starts to become true, with meaningful subsidies for the uninsured middle class, then one of our longest held dreams of care for the common person may come true. I am gratified that artists, musicians, entrepreneurs, free-lancers—people from my tribe, so to speak—may have a shot at a portion of the American Dream long denied them.
This isn’t to oversell the implementation of the law. Nor is it to gainsay the possibility that the Republicans will win big in November and repeal the whole enchilada. While this win puts some wind at Obama’s back, a tidal wave of conservative money will be thrown at the election now, more than before, because the represents a momentum-shifting victory. The backlash will be intense; perhaps it will put Tea Party boots back in the streets. But in some corner of my thinking on this, I feel that Romney is on the wrong side of history at this moment, just as McCain was in his.
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Comments
As for the election, Obama is going to look like Mondale come November.
And we have the Obama regime and Democrats to blame for all this. When in two years millions of us poverty-devastated Americans are hauled off to prison because we can't pay the tax penalty for being unable to afford private insurance, who's going to stand up for us? Who's going to get us out of prison? What's going to happen to us?
It is now a criminal offense to be too poor to afford private health insurance, and to be too poor to pay the tax penalty. Where's the outrage on the so-called left in this country? Most everyone seems too busy fellating Obama to notice that they and everyone who exists in crushing poverty just got anally raped — AGAIN.
MK, whoa there, you've put a bunch of things together that aren't necessarily true. Only those who can afford health care insurance are required to buy it. And the worst you will suffer for it is a tax lien on income or property. No one's going to jail.
As for the Medicaid-eligible in states that refuse to expand care, that is not an insurmountable problem. First, new sanctions can be brought to bear, as I mentioned in the article. Second, the power of popular pressure is going to increase over time as people see what a good deal it is in other states. Finally, in the short-term, worst-case scenario, one can always move to one of the many states that will provide expanded Medicaid coverage. The sky is not falling. Despite the fact that this was always a flawed law, you are blaming the wrong party. Or you can just vote Republican and hope they win the whole shebang and take everything you have gained away from you via repeal. In that case, I hope you have no pre-existing conditions. Or, you can move to Minnesota, take advantage of our fancy new Medicaid provisions and locate yourself in Michele Bachmann's district, where she will vote for repeal for the rest of her career. Cake and eat it too!
Meanwhile costs will continue to skyrocket, and this bill does next to nothing to control them. Drug manufacturers will continue to inflate their prices to the tune of billions over the next bunch of years, while this bill does nothing to allow importation of cheaper drugs or bargaining for better prices. Predatory for-profit coverage will remain the core of our dysfunctional system, which this bill does nothing to reform. The HMOs and insurance companies will keep their stranglehold over the system, while this bill only strengthens them.
And that public system--that safety net we all want to extend to our musicians and artists and middle-class folk who can't afford it now--remains as far out of reach as ever, and this bill does nothing to bring it one step closer.
Drug costs, too, are capped under the law in a way that will save some with chronic diseases up to $600 a year. Check AP's coverage today on that one.
What this bill does to HMOs and insurance companies is, at present, unknown, but if you don't think that Medicaid expansion is a big deal, you need to hit the books on this one.
"Only those who can afford health care insurance are required to buy it. "
Who gets to decide who can afford health care insurance?
And what criteria will they use?
On the other hand, if an individual making $50,000 decides not to buy health insurance, that person would be an addition $1,000 in taxes to the feds, in essence, to cover the federal subsidy for their own indigent care in the future.
But I am perplexed as to how this plays with the constitution. Is it now possible that the government can enact any new law which has a "tax" penalty ? Good Lord, we are playing with semantics?
" No, I can't force you to have insurance, but if you don't you will be taxed"..????
I spent a good portion of the morning reading SCOTUSblog, Steve. It's a fantastic source.
The icing on the cake is the fact it will always appear like the left bullied the Supreme Court into their decision.
To all who would attribute an either/or "judicial" or "political" decision to the Supreme Court, let's be honest with ourselves and each other. If it's a decision I like then it's judicial. If I don't like it then it's political. It doesn't matter on what "side" of the philosophical spectrum I sit, that's just the way it's going to be.
Judges are men and women. All men and women are subject to their own predilictions, to their own view of the world, of philosophy, of law and of government.
These things color our thinking and influence our decision making.
These are the things of which a judge/justice is made in the first place.
I grow weary of this debate over a political court. Hell yes it's political. Go back to FDR's efforts to "pack" the Supreme Court when he became frustrated over his lack of ability to accomplish some of the things he wanted to get done. Was the Court being political or was FDR? Or was it both?
Gore v Bush and of course Roe v Wade--political or judicial? It's all in the eye of the beholder.
I take a more "liberal" "activist" view. But I also try to take a more "realistic" or "pragmatic" view as well.
Moreover, the Court rejected the Commerce Clause argument, and now its what it always was as to the individual mandate,a tax, which they'd rather not call it, as to "winning and losing."
Yes, "containment" in the same sense that there are going to be "cuts" to the military. Costs will continue to go up, but the industry agrees to slightly reduce the rate of growth. Nevermind that it'll still be inflated far beyond what's needed.
Are those people with chronic diseases going to keep that amount of cash in their pockets, or is the increase in the amount they pay only going to be $600 less than it would be otherwise?
Let's also not forget Obama's efforts to put funding for aid programs (SS, Medicare and Medicaid) on the chopping block. When the funding starts drying up up at the source, it'll start becoming more of a moot point where the resources get distributed.
[Ande Bliss:] There is so much good to be gained by a fair health care system that does not discriminate against those with preexisting conditions..those in need and the elderly.
There really would be. If we ever had such a system.
[Walter Blevins:]I always had some problems with the "Commerce Clause" argument but can't find fault with the tax argument.
Our taxes are going to private corporations for private profit. That's the fault.
Are you a sociopath? Millions of people are going to die from poor care or no care because the Republicrats and Demicans are virtually united against healthcare reform, and you're actually glad because of which side will lose political points because of it? Seriously?
Yes, the administration did not want to call it a tax, but so what, there it is. It's a penalty by way of a tax. It's not like Republicans would refrain from called Democrats the tax-and-spend party if they had avoided this formally Republican strategy to gain a wider insurance pool.
In the end, I predict very few people will be paying that penalty tax in lieu of buying insurance coverage. But I, like everyone else, have not yet seen the price list. I have, however, seen the pre-reform, current, price list for individual care on starter plans for twentysomethings and I can assure you, hands down, the bar is not that high.
r./
Of course. None of it changes the fact that we--well, at least some of us--are being required to buy a private product from a for-profit company.
I've always understood that the govt is allowed to levy taxes to pay for public programs and services, which means we taxpayers (at least in theory) have ways to make our opinions known and have some say in how our money is put to use. Now we're being forced to buy some substandard product from some private insurer or another... and they don't have that accountability to us.
It's a be-careful-what-you-wish-for result. Now that the mandate is a tax, tax-collection enforcement powers (i.e., the IRS) will be used to collect it. In Massachusetts, if you don't obtain coverage the state sues you, denies you tax exemptions, grabs tax refunds, etc. Unfortunately, this burden is falling hardest on people at the timber line between the poor and the middle class--those who don't qualify for subsidized Romneycare, but can't afford the plans offered by private insurers. Some typical examples: freelancers, small business owners, the self-employed. Federal enforcement powers are stronger--the IRS has the ability to garnish wages, put a lien on your house and your bank account. Having seen the IRS in action when ysome poor sucker files an incorrect tax return or estimated tax report, and the hell they put people through, I can only say I pity anybody who's going to be in a similar position elsewhere.
Con, we all know that tax collection is tax collection. Otherwise we'd be Greece. The Massachusetts experience is not a model for ACA, just a blueprint. Coverage is pricey in Massachusetts, I agree. But the feds have promised better subsidies, a lower opt-out salary amount, and Medicaid to fill the gap (in states that offer expansion). Medicaid to fill the gap is a game-changer as compared to the state-based model you have. As for me personally, I paid for heath insurance for my twentysomething kids because they couldn't afford it and I would pay for their catastrophic care if needed anyway. So I am ready for the brave new world, and for what I believe will be lower prices that what I have paid in recent years. If I am wrong, if costs go up from the crappy coverage and high prices I will eat the blog equivalent of my hat. But I have the docs on what we get now, and I expect the coverage and the cost to beat them no problem.
What part about the word “appear” didn’t you understand?
Obama gave numerous speeches accusing the Supreme Court of judicial activism, before they submitted a decision. In addition, they were also singled-out during the State of the Union Address for their poor decision as it relates to Citizen United. I think Roberts is a political guy and knew exactly the ramifications of the Court’s decision that I’m alluding to. Think of how easy and convenient it would have been to blame Republicans for the health care mess? Now all Mitt has to do is point to some doctor quitting the profession or some poor sole that can’t get an appointment or some business with a huge premium increase and the finger of blame will be pointed directly at Obama. I can see the attack ads now.
Spiral:
What are you talking about; healthcare was reformed via Obamacare which passed Congress by a united majority and was deemed Constitutional by the Supreme Court. Are you saying it wasn’t reformed? If yes, we agree. Democrats made a bad problem worse and they should be ousted because of it.
Taxes are criminal.
Health care should not be 'affordable' it should be free. Then again, most democrats are used to settling for second best, go ahead and celebrate playing right into the hands of the financers.
ON the other hand, this was very well written and presented. Excellent work and rated.
Exactly. The core of the system remains the same and nothing's been overhauled. How anyone can call this bill 'reform' is beyond me.
Democrats made a bad problem worse and they should be ousted because of it.
Very true, and it's important to recognize that half of the problem, but we also can't forget that this was a GOP plan to serve GOP values (corporatism and giving more money to the rich).
Yes, Obama and his party will deserve all the blame they get when the shit seriously hits the fan, but in light of how grim the consequences will be for us the people, I can't really take any satisfaction in it.
If we destroy every symbol that once was associated with horrible acts, we would have to destroy all symbols everywhere.
I understand and apologise to all holocost survivors and their families if my avatar offends, but really, it's just a symbol after all.
How can anything ever be reclaimed if we keep focusing on the negatives?
In any case, I will not be taking down the avatar, despite your addition of the word please. This is not to be an a-hole, it's for progress.
The only way to defeat racisim is to leave it no where to go.
It’s 2,700 pages with hundreds of thousands of rules, some yet to be written. In short, the core of the system was dramatically changed.
I concede, it was a GOP plan, emphasis on the word “was”. Romney has vowed to repeal it and not a single GOP member of Congress voted for it.
What are you talking about when you say “grim” consequences? Just vote Republican and it’ll be gone within a year.
Jeanette:
Social security worked when there were four workers for every one retiree. In the not too distant future there will be two workers for every one retiree.
Not even one of the states governed by Republicans, and I'm pretty sure a fair chunk of Democrat-run states, will expand Medicaid. I and millions of other Americans are deemed ineligible for Medicaid despite meeting the income requirements because we're single and have no dependents. That is not going to change. Nor am I capable, being unemployed or chronically underemployed, of paying for private insurance or the tax penalty that will come from being unable to afford private insurance. There is no price-control provision in Obamacare, meaning that premiums will continue to skyrocket. So with no way to pay for insurance or the tax penalty for not being able to buy it, what will be done to us who cannot afford to pay? We'll be put in prison.
As to low income single adults, they do become eligible for coverage in 2014, at least in the opt-in states, subject to the income requirements stated in the law.
There is no single price control within the law as I already touched on in the comments section here. Instead there are several and the biggest of those is Medicaid expansion.
So if Europe can suck up and pay to keep their citizens healthy, perhaps you should consider ex-expatriating yourself to a country you approve of? I hear Canada is still accepting immigrants.
Just in case you did not know Herman Goering stole the swastika from the Buddhists, (he thought it was cool) so you are actually using a symbol of peace to promote your political platform. Don't take my word for it:
Earliest archaeological evidence of swastika-shaped ornaments dates back to the Indus Valley Civilization of Ancient India as well as Classical Antiquity. Swastikas have also been used in various other ancient civilizations around the world. It remains widely used in Indian religions, specifically in Hinduism, Buddhism, and Jainism, primarily as a tantric symbol to evoke shakti or the sacred symbol of auspiciousness. The swastika is also a Chinese character used in East Asia representing eternity and Buddhism.
Who said anything about privatizing Social Security? I was simply pointing out the fact that “working” is a horrible way to describe a program heading for a cliff.
Kate:
Speaking of cliffs, guess where Europe is right now?
We remember very well. We remember that SS is a public program run for the public good, and thus a fair use of our taxes. And since the ACA (as you then acknowledge) takes our tax money for something that isn't public in any way.... well, why would you hope it's only a first step? Do you actually want other public services to be gutted so their funds can be diverted to corporate coffers too?
[Johnny Fever:]What are you talking about when you say “grim” consequences? Just vote Republican and it’ll be gone within a year.
I'm talking about the millions that will remain uninsured and underinsured and die from lack of inadequate care in the coming years--and this when the amount we as a people are paying is already more (much much more) than enough to completely cover everyone for everything with no exceptions. 'Grim' isn't an exaggeration... and no, of course voting R won't change it, any more than voting D will.
[Kate O'hehir:]The U.S. is moving toward what ever other European country has had for years
What? You're talking about a public, non-profit system. Obomneycare specifically keeps private insurers in charge of selling coverage, does nothing to change the fact that it's a for-profit business, and does nothing to make any part of it public. In what way are we moving any closer?
In any case, I've changed to something slightly less offensive...because I like you folks. (not you personally, just your writing.)
"has raised taxes on some of the nation’s poorest people — for that is what the court said will be happening, 18 months from now, when the health insurance mandate part of the new Act takes effect, and people who have no employer-provided health plan, and no other kind of coverage, fail to buy a policy for themselves and their families. They will be socked with a bill by the IRS, and while the Obama administration and supporters of the act in Congress were at pains to say that the payment such people would be hit with would be a fine, the Justices in the majority were adamant that it would be a tax.
...
The real losers in the latest Supreme Court decision, however, are the people of the United States. Not those who will be required to go out and buy some over-priced, minimal coverage, rip-off insurance plan offered by the private insurance industry, or to pay a “tax” to the IRS for not doing so, but everyone.
This is because the Affordable Health Care Act is not affordable. It does little or nothing to control health care costs, which are destined to continue to gobble up an ever increasing amount of the total US Gross Domestic Product as well as of corporate profits and families’ incomes.
The new federal version of Romneycare simply prolongs the day when the US finally does what it should have done decades ago, should have done during the first Clinton administration, and should have done at the start of the Obama administration: namely expanding Medicare to cover all Americans.
Instead of going for this option when he had broad and enthusiastic support as the newly elected president, Obama deliberately shut out all discussion of the Canadian-style approach to national health coverage — a national program of government insurance for all, with doctors’ rates and hospital charges negotiated by the government — and instead devised a scheme that leaves the whole payment system in the hands of the private insurance industry, and effectively lets doctors and hospitals charge what they can get away with.
Obama did this because he was a huge recipient of money from all sectors of the health care industry — the insurance companies, the hospital companies, the American Medical Association, the big pharmaceutical firms, and the medical supply firms.
ObamaRomneyCare is at its core an enrichment scheme for nearly all elements of the Medical Industrial Complex, with the possible exception of the lowly family practice physician, nurses, and hospital workers."
And Kate, save the false accusations of America-hating for people stupid enough to be beaten down by them. I am an American. That means I have the intelligence and wisdom to question authority, especially when authority is doing something horribly, destructively wrong, and I will not cower from exercising my First Amendment right to free speech just because you or anyone else finds the truth unpleasant. So can the false patriotism already, will you? You're not talking to some right-winger.
Steve, since you acknowledge that what I've written is correct, you have no basis for calling anything I wrote a lie.
"Corporations are People" is a legal fiction with no basis in fact; a corporation's "personhood" can be wiped away with the stroke of a pen, and that happens every day without the least protest from Anti-Abortion advocates. The vast majority of people wisely reject the Court's ruling in Citizens United because it doesn't meet what ought to be the most obvious requirement of any law -- that it have some basis in reality.
The day a corporation dies of cancer (other than metaphorically) will be the day the Citizens United decision is accepted in the Court of Public Opinion.
The ACA decision, on the other hand, has far more basis in reality than does Citizens United. No reasonable person would argue that corporations don't already have a too powerful voice in our politics, just as no reasonable person would argue that our healthcare system isn't in drastic need of reform.
Robert's may be a corporate conservative, but that alone doesn't make him a fool -- as is the case with so many apologists for the Freemarket Faith. Robert's is well aware the public now views the Court as just another partisan playground. Thanks to Bush v Gore and Citizens United, the Court's reputation has never been worse.
Perhaps that explains the ruling against AZ's "papers please" law and in favor of ACA. They seem to point to the fact Roberts can read polls as well as case law. That includes polls that suggest the Court's rightward drift has become a cause celebre for many leftwing voters. Indeed, it has created a single-issue hook for otherwise disinterested leftwing voters to hang their vote on.
Robert's is no doubt aware an Obama win could put the Court's conservative majority in jeopardy. To me, that's most compelling explanation for Robert's sudden concern for the individual rights and the Commonweal. But speculation that Robert's sought to resurrect the Court's reputation with his unexpected decision in ACA is just that -- speculation.
That speculation is belied by the Court's refusal to hear the State of Montana's case, which would have obviously necessitated revisiting the horrible decision in Citizen's United. If Robert's decision in ACA truly was motivated by rehabilitating the Court's reputation, he would have insisted the Montana case be reviewed as well.
While it's always dangerous to speculate on the motives of another person -- particularly a person so far removed from one's own weltview -- I suspect Ted Frier has it about right -- beware of Greeks -- or legal geeks -- bearing "gifts". The Montana ruling and the fact that the ACA ruling puts clamps on the Commerce Clause is evidence the ACA ruling may well be a Trojan Horse.
roberts voted the way he did to save the credibility of the court, especially among the legal community. our entire system of govt. was at stake, not to mention the legacy of "his" court.
It isn't ones own "experience" that serves the social order, but something greater. They took it to the limit in Citizen's United: the damage to the court is plain to see, especially among the insiders, he had to take it back. That's who "got" to Roberts and he could no longer deny his teachers in the name of his own career.
It happens again and again and again throughout history, and by and large, eventually, for some reason history is the territory of men of reason for whom truth is the motivating factor. Nobody else is much interested.
I know I'm very boring and pedantic, but think about it, and don't eat too many sparklers on the Fourth of July. If we don't keep fighting, ignorance wins.
As always,