The government lawyers who defended the Patient Protection and
Affordable Care Act (PPACA) before the Supreme Court probably began
to fear that its “minimum coverage provision” was headed for the
mortuary when Justice Kennedy, from whom they had hoped to receive
a reprieve, said the requirement that all Americans buy health
insurance “changes the relationship of the federal government to
the individual in a very fundamental way.” They must have
known it was a goner when Kennedy followed up with this
lethal injection of reality: “Do you not have a heavy burden of
justification to show authorization under the Constitution?”
The Solicitor General, Donald Verilli, fended off that
apparently deadly thrust with the absurd claim that the mandate
wouldn’t affect the government’s relationship to the citizen as
profoundly as Kennedy had suggested: “[A]ll this minimum coverage
provision does is say that, instead of requiring insurance at the
point of sale, that Congress has the authority… to ensure that
people have insurance in advance of the point of sale.” This
argument was so weak and its delivery was so poor that most of the
law’s supporters sank into slough of despond. CNN’s Jeffrey Toobin
called Verilli’s performance a “train wreck” and all but pronounced
the PPACA dead.
But the death of Obamacare and its much-reviled mandate was, as
it turns out, greatly exaggerated. In an utterly Orwellian
opinion authored by Chief Justice Roberts, the majority held
that the mandate was not a tax for purposes of applying the
Anti-Injunction Act (AIA), but that it was constitutional because
it falls within Congress’ taxing powers: “The Affordable Care Act
describes the ‘[s]hared responsibility payment’ as a ‘penalty,’ not
a ‘tax.’ That label is fatal to the application of the
Anti-Injunction Act.… It does not, however, control whether an
exaction is within Congress’s power to tax.” So, sometimes it’s a
tax and sometimes it’s not.
Chief Justice Roberts had to use two definitions of “tax”
because AIA forbids legal challenges to taxes before they go into
effect, and the mandate doesn’t take effect until 2014. For the AIA
to apply, then, the mandate had to qualify as a tax. When the first
legal challenges to Obamacare were litigated, the government tried
to argue that the mandate was indeed a tax, but couldn’t find any
buyers because Congress had gone out of its way to avoid
characterizing it as such. In all of the many courts that
considered the legal implications of “reform,” only a single judge
in the Fourth Circuit Court of Appeals took the tax argument
seriously.
And Roberts also rejected that argument — until it came time to
deal with the central question of the Obamacare challenges: Is it
within the legitimate power of Congress to command individuals to
purchase health insurance? To answer this question in the
affirmative the Chief Justice had to change his method of defining
the word “tax” in midstream. Notwithstanding the contortions
Congress went through to avoid associating the “T” word with the
mandate, Roberts followed “a functional approach, ‘[d]isregarding
the designation of the exaction, and viewing its substance and
application.’”
The Court also upheld the rest of the law, except for part of
its Medicaid provision. In all, the justices considered four
questions to arrive at this ruling. The first involved AIA. The
second concerned the mandate. A third question involved
severability: Was the Court required to strike down the entire
statute if it deemed the mandate unconstitutional? Obviously, the
ruling rejected the jurisdictional issue raised by AIA and the
severability question was rendered moot when the mandate was
upheld. The final question considered was the claim, made in
Florida v. HHS and NFIB v. Sebelius, that PPACA’s
expansion of Medicaid was unconstitutionally coercive.
On this Medicaid question the majority took a different view
than was taken by the lower courts, where the plaintiffs had a
tough time selling the coercion argument. Even U.S. District Judge
Roger Vinson, who struck down Obamacare in its entirety in early
2011 and started Florida v. HHS on its long road to the
Supreme Court, wrote that
the states “always have the option, however impractical, to
withdraw from Medicaid.” Today, the Court ruled that the federal
government cannot withhold all matching funds from a state that
does not agree to expand the joint state-federal program as PPACA
dictates.
Needless to say, some of the justices disagreed with the
majority. Justice Kennedy, whom everyone expected to be the swing
vote, was particularly succinct as he read his dissenting opinion
from the bench: “In our view, the act before us is invalid in its
entirety.” Kennedy went on to point out the glaring inconsistencies
between the “reform” law itself and the way it was characterized in
the ruling: “What Congress calls a penalty, we call a tax …
Congress went to great lengths to say it was a penalty … In short,
the court imposes a tax when Congress deliberately rejected a
tax.”
Thus Chief Justice Roberts saved Obamacare and its egregious
mandate. He cast the deciding vote with the Court’s liberals,
justices Kagan, Ginsburg, Breyer and Sotomayor. Then, he wrote a
majority opinion containing enormous logical and semantic
inconsistencies to justify that vote. He used two conflicting
definitions of “tax” and, as Kennedy pointed out, ignored the
actual text of the statute. So the country will have to go on
living with the the grotesque morass of bad ideas and corrupt
bargains that constitutes Obamacare, despite countless surveys
showing that Americans wanted the Court to overturn all or part
of the monstrosity.
As to the effect of the ruling on the industry Obamacare
purports to “reform,” it will be minor. Health providers have been
preparing for the advent of Obamacare’s major provisions for two
years, in areas ranging from quality of care to information
technology to reimbursement to regulatory oversight. Most health
care insiders I have talked to never believed that the potential
demise of PPACA was going to change our lives very much. The
consensus was that most of Obamacare’s provisions would have been
imposed on us by government fiat, no matter what the Court decided
in Florida v. HHS or NFIB v. Sebelius.
And the patients? They will continue to receive the best health
care available on the planet. This law was never about health care.
It was about power and money. Today’s ruling just confirms that, in
the end, it’s up to the voters. If we want to rid ourselves of this
monster, we can’t rely on divine intervention from the Supreme
Court. The justices of that august institution let the beast off
the hook today. If the voters want to kill it, they will have to do
so at the ballot box in November.
