June 28 2012
What a day at the Supreme Court. ObamaCare survived. I was there in person, so couldn't follow along on TV, but according to my friends watching CNN, the network reported that the individual mandate had been struck down, and then corrected their report about a minute later. The same happened everywhere I'm sure, as Roberts read a summary of a very confusing and very unexpected ruling. You can read the Court's decision in PDF here.
So the individual mandate is unconstitutional... when it comes to the Commerce Clause. This is a victory for the 26 states and the NFIB who challenged the mandate on those grounds. Nancy Pelosi and plenty of other ObamaCare advocates pointed to this defense of the law since the beginning, and today shows that they were wrong. President Obama thought this was his best defense, too, and he was a constitutional law professor.
But the law stands - mostly as is. This is because the Court, in a 5-4 decision ruled that it is a tax. Check out these responses below from some conservative legal experts:
Randy Barnett, professor of law, Georgetown University:
Today's decision validates our claim that a Congressional power to compel that all Americans engage in commerce was a constitutional bridge too far. By rewriting the law to make it a 'tax,' the Court has now thrown ObamaCare into the political process where the People will decide whether this so-called 'tax' will stand. And the People will also decide whether future Supreme Court nominees will pledge to enforce the Constitution's restrictions on the power of Congress.
Stephen Presser, professor of law, Northwestern University:
With the Chief Justice's turning to the taxing power to justify the individual mandate, what his opinion takes away under the Commerce clause, is, in effect, given back. This is particularly disappointing, because the authors of the Affordable Care Act, and its defenders, such as President Obama, repeatedly assured the American people that it was a measure that would reduce costs, not increase them, and that the Act was not an attempt to raise taxes. A tax measure is less politically palatable then an 'individual mandate,' and had the penalty provisions of the individual mandate been frankly acknowledged to be a tax, it would have been more difficult to pass the Act, perhaps even impossible, given the closeness of the margin by which it was enacted.
Carrie Severino, chief counsel, Judicial Crisis Network:
I am disappointed with today's Supreme Court decision because the Court has cleared the way for what looks like a very broad use of the tax power. But we can still be very thankful that the court has defended the contours of the Commerce Clause. This litigation has spurred a national debate about health care that showed the Democrats' predictions were wrong: The more Americans have learned about this health care law, the less they like it. Today's case has laid the groundwork for a committed movement to repeal PPACA and search for an alternative that respects both individual rights and the Constitution.
Karen Harned, executive director, NFIB Legal Center:
It is with great disappointment that NFIB and all small business owners accept the Supreme Court's decision to uphold the healthcare law. When President Obama signed his signature piece of healthcare legislation into law in early 2010, NFIB heard from its members -- small businesses all across the country -- who were unhappy, fearful and downright angry about the law. This day will go down in history as the day when Americans lost their freedom - the freedom to choose what to buy with their own money. Now there is nothing stopping Congress from forcing citizens to buy broccoli, cars, gym memberships, solar panels or anything else. Small businesses are resilient, innovative and creative. They have overcome an enormous amount of government interference in their lives and their businesses. Like all Americans, they now face a new reality - one our nation's Founders worked so hard to avoid - in which there are no constitutional limits to what Congress can tell each of us to do.
There is one part of the law that will be affected by today's decision: the Medicaid expansion. The Court ruled that the federal government cannot do as it threatened to do to Arizona (over a dispute about the CHIP program) and take away all Medicaid funding from any state that fails to comply with the expansion. This is good news for states, at least upon first read, because it seems that states may be able to keep their Medicaid programs as they are currently without fear of losing all federal Medicaid money.
So, while today's ruling is devastating in many ways, as President Obama says about the economy or about unsuccessful bailouts, "It could've been worse."