Victory For ObamaCare!

The decision in National Federation of Independent Business v. Sebelius is a victory for the supporters of the Affordable Care Act, and a fairly broad vindication for the constitutionality of the law.  Here are my initial thoughts:

This is a big win for the Obama Administration.  The only portion of the law struck down is the Medicaid expansion provision, on the grounds that Congress cannot threaten to take away funds previously granted to the States if the States fail to accept new conditions.  This strikes me as a fairly reasonable gloss on the case of South Dakota v. Dole and, at the same time, a constitutional interpretation that still allows Congress a fair amount of flexibility to attach conditions to the receipt of new federal dollars.

I am not persuaded by Justice Robert’s argument rejecting Congress’ power under the Commerce Clause.  It strikes me as primarily conclusory rather than analytical, and my initial reaction is that it should be considered dicta since Justice Roberts upholds the ACA on other grounds.  Of course, I have already made clear that I am inclined to agree with Justice Ginsburg that the Court’s precedent under the Commerce Clause provides ample support for the ACA’s constitutionality, as I argued in previous posts here and here.

Nor am I convinced by Robert’s tax argument.  He labors a great deal to make the case that the ACA does not impose a “tax” for purposes of the statutory Ant-Injunction Act but nonetheless imposes a “tax” under Congress’ constitutional taxing authority.

It appears to me that Roberts tried to split the baby in a statesman-like way, by giving victory to Obama but by using reasoning and language designed to placate President Obama’s critics.  Am I the only person who read Justice Robert’s opinion and thought of Marbury v. Madison?

This Post Has 9 Comments

  1. Tea Norfolk

    I was surprised by this ruling for a couple of reasons, one being that it ended up as 5/4 with Roberts as swing and another being that the majority view went with the tax argument over the commerce clause. Ginsburg’s analysis does seem to make more sense. Glad to see your thoughts on it, though, and sorry that the decision came out so long after class has ended because I’m sure it would have been an enlightening discussion.

  2. Tom Kamenick

    This decision engenders a massive expansion of the scope of federal power. Congress can now mandate or prohibit all kinds of activity it had no authority over before, so long as the penalty it attaches to such activity or non-activity is called a tax. Well, it doesn’t even actually have to be called a tax, it just sort of has to look like one.

    My satirical take on this –

  3. Nick Zales

    A legal analysis of this ruling would be interesting if that was the court’s basis for its decision. But it was not. As with Bush v Gore and Citizens United, these decisions are simply matters of raw politics dressed up with legal citations. Where was this “tax” issue at oral arguments? I do not recall any discussion of this law being a tax. Likewise, corporate citizenship was not an issue in the lower courts in Citizens United. The court simply made it up out of thin air and asked for briefs. That constitutes a gross abuse of power.

    This is the danger no matter how one feels about the court’s decisions. They are not based on precedent and rules of law but on who has the political power to impress the members of the court to vote their way.

    A court unhinged from the law is a dangerous thing for everyone. It is exactly why the public’s faith in the court is at an all time low. The people see its decisions are based on politics and not objective rules of law.

  4. Justin Webb

    “In this decision, the Court has upheld Obama’s First Amendment right to lie to the people. To my way of thinking, at the federal level with a few execptions, the terms “liar” and “politician” are now synonyms.”

    Incorrect. You are getting lost in semantics, without seeing the larger picture. From the fact that the Supreme Court found it to be a tax it does not follow that the original label was a sham. The President intended it to be an exercise of power under the Commerce Clause; this was held to be unconstitutional. However, giving deference to the legislature, the court found another way to uphold the law – by divining, right or wrong, that penalty really means tax in a functional sense. The court’s choice of resolving the case on these grounds does not transform the President’s original intention into that of deception. Because the eat your broccoli argument lost, Obama must now become a tax and spend democrat? The fallacy is that the argument always existed – the Act has not changed since enactment – so to rail on the tax issue is by proxy admitting your #1 strategy to undermine the law failed, and you have moved to the backup. Sort of like the Supreme Court’s decision.

    If you think federal politicians are liars, then seize the Constitutional means to change that – vote.

  5. Tom Kamenick

    Nick, the entire first day of oral arguments was devoted to the question of whether this was a tax. Most observers thought the court’s questions were so skeptical of that argument that it didn’t have a chance. Looking at contextual clues, I’d be willing to bet it wasn’t a winning argument at the original straw poll among the Justices, either.

    Of course, there’s also this whole question of how the penalty can be a tax for congressional power purposes but not be a tax for Anti-Injunction Act purposes.

  6. Nick Zales

    Thank you, Tom. I missed the oral arguments. After that I never heard anyone mention that this was a tax. I foresee a day when politicians in D.C. tax people for being born.

    As for Justin’s comments, I do vote. But when the choices are between mickey and mope, it’s time to vote third-party. Obamacare is the worst of all worlds.

    Our country has far greater problems than Obama and Romney, really two peas in a pod. Obamacare was based on Romney care. So it is ironic to see Romney blasting it.

  7. Selva Salerno

    The decision in my view is valid, but is it good for the image of Obama? What do you think about it? I’m from Brazil and I’ve been following some actions of your president. I believe him, but the season was not very good. Does a tax or something similar help in your country the current situation? How is this seen? It is good for us — we have the largest number of taxes in the world, one more or one less would not matter, but your culture is different.

  8. Steven Cochran

    As long as Wickard v. Filburn & Ashcroft v. Raich are still deemed valid exercises of power under federal law. . . ANYTHING can be rationalized backwards by the courts to justify whatever federal powers Congress wants to exert.

    Recessions and depressions seem to lead to major losses of freedom for society, under the guise of greater security.

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