UPDATE at 11:59 a.m.: The president is expected to comment on the ruling at 12:15 p.m. One wonders how his remarks will square with White House talking points from the Obamacare debate, such as:
What President Obama is proposing is not a tax, but a requirement to comply with the law.
People are required to obey the speed limit and have to pay a penalty if they get caught speeding? Does anyone consider that a tax?
People are required to have car insurance and can be fined if they are caught without it. Is that a tax?
In one of the court’s other decisions today, United States v. Alvarez, the justices upheld American’s First Amendment rights to lie about receiving military honors. In the Obamacare ruling, the majority upheld politicians’ First Amendment rights to lie about their policies. Not that anyone thought that kind of lying would ever stop.
UPDATE at 11:42 a.m.: At first blush, any cheers for the court’s declining to uphold Obamacare based on the Commerce Clause should not be too loud.
Writing for the majority, Roberts says, among other things:
People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures — joined with the similar failures of others — can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.
Sounds pretty strong, huh? Maybe even strong enough to place a firm limit on congressional powers under the Commerce Clause?
Maybe so. My guess, however, is that Congress will simply rely less on its Commerce Clause powers in the future and resort to its taxing powers, because Roberts shortly makes clear that this limitation applies only to “police powers” — that is, Congress cannot criminalize inactivity.
Turning to Congress’ taxing powers, Roberts seems to undercut everything he wrote about regulating inactivity:
Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. … That, according to the [Federal] Government, means the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. (emphasis added)
Viewed in the lens of taxation, then, inactivity is “just another thing,” like … wait for it … activity. So, everything Roberts wrote about Congress’ inability to regulate inactivity amounts to this: Congress can’t throw you in jail for not doing something, but it can take away your personal property for not doing something. This is hardly a comforting limitation.
UPDATE at 11:05 a.m.: The coalitions of justices on various parts of the ruling are a bit tricky to follow, but the bottom line is that Chief Justice John Roberts, appointed by President George W. Bush, voted to uphold the law in its entirety, while Justice Anthony Kennedy, a Reagan appointee and the supposed swing vote of the court, voted to throw it out in its entirety. So, while Kennedy had been seen as the one who would decide the law’s fate, he went right and the court went left. That’s one of many ways this precise ruling — not the broad outcome, but how a majority of justices reached it — is completely unexpected.
UPDATE at 10:55 a.m.: Finally have the ruling. It’s pretty clear why CNN blew it — and, oh, did they blow it, reporting first that the mandate was struck down. From page 2 of the summary:
CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause.
But then you turn to page 3 …
CHIEF JUSTICE ROBERTS concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.
And page 4 …
CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.
So, it’s a tax. Which is exactly what the Obama administration said it wasn’t while it was trying to pass the bill, and then reversed itself and said it was once the law got to court. That distinction may also have implications for repealing the bill.
More to come.
The Supreme Court has upheld Obamacare as constitutional; beyond that, I can’t say much yet. There have been so many contradictory reports — including about the size of the majority — that I’m not going to comment further until I’ve read the opinion myself.
– By Kyle Wingfield