Here Comes Obamacare, Unless…

Today, the Supreme Court of the United States narrowly upheld that the Affordable Care Act, known to most of us as Obamacare, is Constitutional. The decision (which you can read in PDF form here), written by Chief Justice John Roberts, is plain and easy to read and I recommend you block off a little time this weekend to do just that.

I’ve spent a bit of time going over the Roberts opinion, which I can sum up with a Keanu Reeves style “Whoa”. Here are the high points.

1) The “individual mandate” is unconstitutional under the Commerce Clause.

2) The “individual mandate” is unconstitutional under the Necessary and Proper Clause.

3) The “individual mandate” is Constitutional because it is very possible to see it as a tax with a number of built in exemptions and carve-outs.

Okay, let’s go back and cover that last bit of ground in more detail. Justice Roberts explained that the Court has to give as much deference to Congress as possible. If there is a reasonable way to interpret a law such that the law is constitutional, the Court must do so. Roberts then went back to one of the original arguments for Obamacare, that the “mandate plus penalty” part of the law was actually a tax on those who did not have health care. he found that even though Congress used the word “penalty” often, the penalty actually acted like and was enforced like a tax. So, if it waddles like a tax and quacks like a tax, we can reasonable consider it a tax. And if we do that, then Obamacare is Constitutional, because Congress has very broad taxing powers.

The only problem with that part of the decision is that it becomes difficult to explain why, if the mandate is really a tax, it’s not subject to the restrictions of the Anti-Injunction Act. That is the law that requires a person actually pay the tax before they can challenge it in court. Roberts interpreted the AIA narrowly to decide that if the word “tax” doesn’t show up, then it’s not really a tax. Slippery? Sure, but we’re talking about legal matters here. Slipperiness is baked into the cake.

There is another interesting part of the decision I think may end up as more important than the tax/no tax argument. Roberts, again writing for the majority, held that the federal government could not threaten to cut off a state’s Medicaid funding if it failed to comply with Obamacare’s immense expansion. The worst Washington could do was not give the states more money — it can’t hold back money it’s already giving as a punishment. That means that states can opt out of the Medicaid expansion — which would cover everyone up to 133 percent of the poverty line — regardless of age, financial status, or health. Obamacare, as written would not have fully funded the expansion and Democrats relied on the huge unfunded mandate to make the law seem less expensive than it really will be. If more than a few states decide they can’t afford the increase in costs without end that Obamacare will bring, then the federal government will have to foot that bill. I imagine that will change the cost numbers quite a bit, and in ways that most Americans will not like even a little bit.

Here are a few early reactions to the decision: Ben Domenech at the Heartland Institute, Erick Erickson at Human Events, the Editorial Staff of National Review, and Ilya Shapiro at the Cato Institute. I think they represent a good mix of where the responsible government, “ending spending” type folks have come down on the decision today.

It’s a sure bet that we’re not done with Obamacare. Justice Roberts, it seems, has put the matter squarely into our hands to settle through Congress and the ballot box.

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