Law
5:09 pm
Thu June 28, 2012

Tight Court Decision Produces Explosion Of Emotion

Originally published on Fri June 29, 2012 9:45 am

Shock, dismay, relief, confusion — all those emotions played out Thursday when the U.S. Supreme Court announced its 5-to-4 decision to uphold almost all of President Obama's health care overhaul.

The ruling, with shifting majorities on different provisions and multiple dissents, covered close to 200 pages and provoked initial confusion. Both Fox News and CNN got it wrong, reporting at first that the individual mandate had been struck down. But when the dust cleared, the law labeled derisively by Republicans as "Obamacare" was largely intact.

Almost no one predicted the legal path to the outcome. Indeed, not one of the more than two dozen lower court judges who ruled on the law reached the same legal conclusion as the Supreme Court.

Court watchers expected Justice Anthony Kennedy to be the deciding vote, but he was among the dissenters who would have struck down the law in its entirety.

Instead, it was Chief Justice John Roberts — appointed by a Republican president, George W. Bush — who cast the decisive fifth vote, crafted an unusual and precedent-setting opinion, and upheld the law, mandate and all.

The Decision

Writing for himself, and backed by a separate opinion from the court's conservatives, Roberts rejected the government's argument that Congress could require the individual mandate under its power to regulate commerce. The federal government cannot regulate individuals who are not already engaging in interstate commerce, he said. And in this case, those who do not own health insurance are not already in commerce. The individual mandate, he concluded, thus cannot be sustained under the Commerce Clause of the Constitution.

But turning to an alternative argument, Roberts said that the government, using its taxing power, could require people to have insurance or pay a penalty. True, he acknowledged, Congress labeled the fee a penalty, not a tax, but it is paid to the Internal Revenue Service and is based on the individual's income. In short, it bears all the attributes of a tax.

Indeed, Roberts noted, "taxes that seek to influence conduct are nothing new." Here, this tax on those who do not own health insurance was no more than a tax incentive to purchase insurance, and is thus a permissible exercise of Congress' tax power.

Finally, seven justices ruled that the Medicaid expansion in the law violates the Constitution by attaching too coercive a condition onto the states to force them to sign up for the program. The coercion, in the court's view, was that those states that refuse to expand coverage requirements would see all of their Medicaid funds cut off, not just the funds for the expansion. That part of the decision represents the first time the court has ever rejected a condition on federal spending as too coercive on the states. But most experts agree that the decision will have little practical effect, since the court majority left the expansion intact for any state that wants to participate.

Reaction

Reaction to the decision was pure astonishment. Georgetown law professor Randy Barnett, the legal architect of the challenge to the law, said all the reaction comments he had gamed out in advance were worthless.

"Nothing that I had in mind in advance worked today," Barnett said. "It is bizarre to have won on the major legal claim that one's been making for over two years and still lose on the outcome because the chief justice decides to redefine this penalty as a tax."

Paul Clement, who argued the case on behalf of the states challenging the law, was almost bemused.

"I can't remember a case where five justices accepted more of my arguments, but nonetheless didn't side with us on the bottom line," he said.

While they were clearly disappointed, conservative thinkers took considerable solace from the court's drawing a line in the sand limiting Congress' commerce and spending clause power.

"It is true that this is the first time Congress did something like this," Stanford law professor Michael McConnell said, referring to the novelty of the individual mandate, "but that's why the decision will have a lot of importance. Because if this had been approved, then the precedent would have been set for Congress to do this in any number of areas. So this nips it in the bud."

Constitutional scholars like Walter Dellinger, who supported the health care law, were quite simply relieved.

"The biggest winners today are all the families who will get to see a doctor when they're sick," Dellinger said, "and that is far more important than the legal theory of the politics of this case, and it's enormous."

Washington and Lee law professor Tim Jost said the bottom line is that the law has been upheld.

"I think there's a very clear message here to the states, that it's time to quit hemming and hawing, and proceed with implementing the statute, unless they want the federal government to implement it in their states," he said.

Jost was referring to the fact that under the law, states are required to set up health care exchanges through which people can have access to insurance packages that meet certain coverage and quality standards.

As to the court's ruling that the Medicaid expansion was too coercive because a state would lose all its Medicaid money if it refused the expansion, Jost predicted the expansion would go forward as intended.

"I just can't imagine that any state in its right mind is going to turn down 100 percent Medicaid financing to insure hundreds of thousand of its residents if the alternative is its people continue to pay taxes for the expansion of the program in other states," Jost said.

Praise, Criticism For Roberts

Chief Justice Roberts won praise from both supporters and from some critics of the health care law.

"This [is] now officially the Roberts court. He has controlled the outcome in the case. He has done so in a way that actually advances a relatively conservative jurisprudence," Dellinger said.

McConnell, a former federal appeals court judge appointed by the second President Bush, has been a critic of the law. But he called the Roberts opinion "masterful" because it adopted principled limits on congressional power, while at the same time avoiding the charge that the court "was merely being political."

But some conservatives were outraged by what they saw as a betrayal. On Twitter, Rep. Jack Kingston, R-Ga., lamented that with the ruling, "I feel like I just lost two great friends: America and Justice Roberts."

"This was an activist court that rewrote the law to make it even more ineffectual, and even more expensive," Rep. Michele Bachmann, R-Minn., said. "So this is a sad day."

Conservative talk show host Rush Limbaugh did not mince words: "Our freedom and choice just met its death panel: the Supreme Court."

How They Voted

This was the somewhat confusing lineup of Thursday's decision: Roberts' opinion on the Commerce Clause was for himself only. The four dissenters — Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Kennedy — wrote separately, using language that would have more broadly limited congressional power and would have invalidated the law in its entirety. The court's four Democratic appointees — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — would have upheld the law under the Commerce Clause. But they joined Roberts' opinion to sustain the mandate on tax grounds instead.

And as to the Medicaid provision, Breyer and Kagan joined Roberts and the four conservatives in saying the conditions imposed by Congress were too coercive. But they agreed with Roberts, as did Ginsburg and Sotomayor, that the expansion should be upheld, so long as states are free to reject the new expansion without forfeiting their other Medicaid funds.

The four conservative dissenters co-wrote a joint opinion that expressed a view of a tightly limited federal government. They said the government's interpretation of the Commerce Clause would make it "a font of unlimited power," and they warned that allowing some states to opt out of the Medicaid expansion — while still requiring everyone to pay federal taxes that fund that expansion — creates a "destabilizing political dynamic, so antagonistic to a harmonious Union."

"The court today decides to save a statute Congress did not write," said Justice Kennedy, reading part of the joint dissent from the bench Thursday. "In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty."

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

MELISSA BLOCK, HOST:

This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block.

AUDIE CORNISH, HOST:

And I'm Audie Cornish. The Affordable Care Act has passed the ultimate legal test.

PRESIDENT BARACK OBAMA: The highest court in the land has now spoken.

CORNISH: President Obama marked the occasion by calling the Supreme Court's decision a victory for people all over this country whose lives will be more secure, and the president said it's time to move forward.

OBAMA: We will continue to implement this law, and we'll work together to improve on it where we can. But we what won't do, what the country can't afford to do is re-fight the political battles of two years ago or go back to the way things were.

BLOCK: That was decidedly not the view among Republicans.

MITT ROMNEY: This is a time of choice for the American people.

BLOCK: Republican presidential candidate Mitt Romney said his mission is clear.

ROMNEY: If we want to get rid of Obamacare, we're going to have to replace President Obama. My mission is to make sure we do exactly that, that we return to the American people the privilege they've always had to live their lives in the way they feel most appropriate.

BLOCK: And House Republican leaders also scheduled to vote to repeal the Affordable Care Act just two weeks from now.

CORNISH: We're going to delve now into the ruling itself. This morning, there was shock, dismay, relief, confusion. All those emotions played out as the Supreme Court announced its five-to-four decision to uphold almost all of the Obama health care overhaul. The written decision with shifting majorities on different provisions, plus dissents, was practically book length. It covered close to 200 pages. Initially, both the Fox network and CNN got it wrong, reporting that the mandate had been struck down. More on that later in the hour. Now, to NPR's legal affairs correspondent Nina Totenberg, who was in the courtroom for the historic announcement.

NINA TOTENBERG, BYLINE: Nobody, no expert, government official, law professor or pundit, nobody predicted this outcome. Indeed not one of the more than two dozen lower court judges who ruled on the health care law reached the same legal conclusion as the Supreme Court. Everyone expected Justice Anthony Kennedy to be the deciding swing vote, but he was among the dissenters who would have struck down the law in its entirety. Instead, it was the chief justice, John Roberts, appointed by President George W. Bush, who cast the decisive fifth vote, crafted an unusual and precedent-setting opinion and upheld the law, mandate and all.

Writing for himself and backed by a separate opinion from the court's conservatives, Roberts rejected the government's argument that Congress properly enacted the mandate under its power to regulate commerce. Congress does have vast power to regulate commerce, he acknowledged, but it does not have the power to compel it. The individual mandate, he concluded, thus cannot be sustained under the Commerce Clause of the Constitution.

But turning to the government's alternative argument, he said that the government, using its taxing power, did properly require people to have insurance or pay a penalty. On this, he was backed by the court's four liberals. True, he acknowledged, Congress labeled the fee a penalty, not a tax, but it is paid to the IRS, and it's based on the individual's income. In short, like many tax provisions, it is meant to encourage people to take certain actions - in this case to get health insurance.

And finally, the court by a seven-to-two vote ruled that the Medicaid expansion in the law violates the Constitution by attaching too coercive a condition on the states to force them to sign up for the program. It was the first time the court has ever rejected a condition on money given to the states as too coercive. But most experts agreed that the decision would have little practical effect, since the court majority left the Medicaid expansion intact for any state that wants to participate.

Reaction to the decision was pure astonishment. Georgetown law professor Randy Barnett, the legal architect of the challenge, said all the reaction comments he'd gamed out were worthless.

RANDY BARNETT: Nothing that I had in mind in advance worked today because it's just all this - it's weird to win and lose at the same time. It's bizarre to have won on the major legal claim that one's been making for over two years and still lose on the outcome because the chief justice decides to redefine this penalty as a tax.

TOTENBERG: Paul Clement, who argued the case on behalf of the states challenging the law, was almost bemused.

PAUL CLEMENT: You know, I can't remember a case where five justices accepted more of my arguments but nonetheless, you know, didn't side with us on the bottom line.

TOTENBERG: While they were clearly disappointed, conservative thinkers drew considerable solace from the court's drawing a line in the sand limiting Congress's commerce and spending clause power. Stanford Law professor Michael McConnell said that limiting the scope of the Commerce Clause is particularly important.

MICHAEL MCCONNELL: It is true that this is the first time Congress did something like this, but that's why the decision will have a lot of importance, because if this had been approved, then the precedent would have been set for Congress to do this in any number of areas. So this nips it in the bud.

TOTENBERG: Constitutional scholars, like Walter Dellinger, who supported the health care law were quite simply relieved.

WALTER DELLINGER: The biggest winners today are all the families who will get to see a doctor when they're sick, and that is far more important than the legal theory of the politics of this case, and that is enormous.

TOTENBERG: Washington and Lee law professor Tim Jost said the bottom line is that the law has been upheld.

TIMOTHY JOST: I think there's a very clear message here to the states that it's time to quit hemming and hawing and proceed with implementing the statute, unless they want the federal government to implement it in their states.

TOTENBERG: That's a reference to the fact that under the law, states are required to set up health care exchanges where people can have access to health care insurance packages that meet certain coverage and quality standards. As to the court's ruling that the Medicaid expansion was too coercive because a state would lose all of its Medicaid money if it refused the expansion, Jost had this to say.

JOST: I just can't imagine that any state in its right mind is going to turn down 100 percent Medicaid financing to insure hundreds of thousands of its of residents if the alternative is its people continuing to pay taxes for the program for expansions in other states.

TOTENBERG: Chief Justice Roberts won praise from both supporters and from some critics of the health law. Walter Dellinger is a supporter.

DELLINGER: Well, this is now officially the Roberts court. He has controlled the outcome in the case. He has done so in a way that actually advances a relatively conservative jurisprudence.

TOTENBERG: Professor McConnell, formerly a federal appeals court judge appointed by the second President Bush, has been a critic of the law, but he sees the chief justice's opinion as adopting limits on congressional power in principle.

MCCONNELL: And he does it in a way then that avoids the charge that the court was merely being political. And so if what you care about is constitutional principle, this was a really masterful decision.

TOTENBERG: But some conservatives were outraged by what they saw as a betrayal. Here, for instance, is Rush Limbaugh followed by Stu Bregier on "The Glenn Beck Show."

(SOUNDBITE OF TV SHOW, "THE RUSH LIMBAUGH SHOW")

RUSH LIMBAUGH: Our freedom of choice just met its death panel: the Supreme Court.

(SOUNDBITE OF TV SHOW, "THE GLENN BECK SHOW")

STU BREGIER: Why can't we appoint justices on our side that actually do the things they're supposed to do?

TOTENBERG: The lineup of today's decision on the mandate is as follows: Roberts' opinion on the Commerce Clause was for himself only. The four other Republican appointees - Scalia, Thomas, Alito and Kennedy - wrote separately using language that would have more broadly limited congressional power. The court's four Democratic appointees - Ginsburg, Breyer, Sotomayor and Kagan - would have upheld the law under the Commerce Clause, but they joined Roberts' opinion to uphold the mandate on tax grounds instead.

The four conservative dissenters who would have struck down the law in its entirety were Justices Scalia, Thomas, Alito and Kennedy. They wrote a joint opinion. Reading from the bench this morning, Kennedy said the court today decides to save a statute Congress did not write. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.