SCOTUS to US: “Look, We’re Politically Neutral!”

Four days after the historic health law decision, and news outlets have already moved on to speculations about winners and losers, the next political battlegrounds against the law, and the impending fall of Medicaid (and why it won’t happen).

However, let’s backtrack a bit; for those of you who didn’t rush to download the 193-page decision as soon as it was available, here are the take-away points (as well as political points):

  • The individual mandate does not regulate existing commerce, but instead compels individuals to become active in commerce. In this manner, it is NOT constitutional under the Commerce Clause. (+1 Republicans) This is likely what caused a number of news outlets to erroneously report that SCOTUS had struck down the law, causing mass confusion.
  • However, the mandate is functionally equivalent to a tax. Therefore, it IS constitutional under Congress’ power to tax. (+1 Democrats) This is, of course, in spite of the fact that a few paragraphs up, the Justices had just rejected the applicability of the Anti-Injunction Act (which prevents a ruling on taxes before they are collected) because “the Affordable Care Act describes the payment as a ‘penalty,’ not a ‘tax.’”
  • The Medicaid expansion clause of the ACA (Huh? This was an issue?) is NOT constitutional despite the federal government’s offer to pay for 90-100% of the expansion, because the threat to withdraw Medicaid funding from states that fail to comply becomes unreasonably coercive. (+1 Republicans)
  • However, this “constitutional violation is fully remedied” as long as the government does not execute said threat. (+1 Democrats)
  • Justice Kennedy, the expected swing vote, sided with the Conservatives in a rather scathing accusation of “vast judicial overreaching” (+1 Republicans). Chief Justice Roberts, long believed to be likely to side with the conservatives unless Kennedy swung liberal, actually turned out to be the key vote in upholding the law (+1 Democrats).

The whole decision reads like a blow-by-blow boxing match, with almost equal attention given to both sides of the political aisle. Particularly surprising was the convoluted method of justifying the mandate, validating conservatives’ concerns about regulating so-called “economic non-activity” while in effect delivering a victory to Obama. Perhaps Obama’s warning of “judicial activism” three months ago was hanging rather heavily over their heads.

The fact that the Justices couldn’t tell the difference between health insurance and broccoli means one of two things:

  1. They actually didn’t understand Solicitor General Verrilli’s argument (which is not unimaginable, given his oh-so-impressive eloquence). This is the same argument made by many economists, that a mandate to purchase insurance isn’t compelling people to purchase a good, but rather regulating a way to pay for health care, which everyone is already in the market for. As Cornell University economic professor Robert H. frank writes, “[the Justices’] interpretation will strike many economists as a misreading of the mandate’s purpose. It isn’t that people should buy health insurance because it would be good for them. Rather, failure to do so would cause significant harm to others.”
  2. They were throwing a political bone to the Republicans.

Given the convoluted rationale for the ruling on the health law, including a number of arguments that seem to fly in the face of the expectations of experts, I am led to believe that here is a case where the Justices tried everything in their power to maintain an image of political neutrality for the court. As Santa Clara University law professor Bradley Joondeph stated, “The court avoided, despite an enormous amount of pressure to invalidate this law, staining itself as excessively partisan.”

Which, ironically, reveals just how cognizant of political pressures the court actually is.

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