You can now read the opinion in National Federation of Independent Business v. Sebelius, the health care ruling, here. This is a complicated ruling, with long-term implications that go well beyond health care. The short version is that the ACA is “upheld,” but that really doesn’t tell the whole story.
On the question of the individual mandate, it’s quite remarkable that former Clinton Solicitor General Walter Dellinger called this cold, with an assist from Brian Beutler:
Over the first two days of arguments, two of the Court’s five conservative justices have expressed sympathy for key parts of the administration’s arguments. And the administration probably only needs one of their votes to fully uphold the law.
That’s the view of former acting Clinton Solicitor General Walter Dellinger, who sat down with me and a handful of other reporters after watching the arguments. Dellinger tamped down on some initial criticism’s of his successor’s performance before the court. And, crucially, he highlighted an exchange that occurred on Monday — one we broke down here — in which Chief Justice John Roberts appeared to reject the cornerstone of the challenger’s argument.
“Yesterday the Chief Justice said that it doesn’t make much sense to say that the mandate is separate from the penalty or the tax,” Dellinger said. “He seemed yesterday to have accepted the government’s argument that there’s a real choice here. If you don’t want to have health insurance that you can pay the tax penalty.”
That’s basically what happened. Roberts found the mandate to be a tax and that saved the mandate. The mandate was found unconstitutional under the Commerce Clause, but the penalty that somebody must pay if they don’t have insurance is upheld under the taxing power.
Then you have an actual limit, the only one in the case, put on the Medicaid expansion. The Court ruled that Congress could not take away existing Medicaid funds for noncompliance with the expansion. “Prospective withholding of anticipated funds exceeds Congress’ spending power,” according to seven Justices. States could still lose new funds for non-compliance.
Let’s put these two together. This is a different reading of the Commerce Clause from what we’ve seen before, with fairly serious limits put on it. The implications of that are unknown. In the short term, it seems that states may be able to reject the expansion and retain their existing Medicaid funds. In the long term, the Constitutional implications for spending, expansion of existing programs, etc., could be profound. That’s the Easter egg in here for progressive governance, but it’s too soon to tell. (For example, would this restrict expanding into Medicare for All? Probably not, given that it’s not a state-federal partnership. But it’s unpredictable.)
Finally, let’s marvel at two facts: Roberts joined in a 5-4 decision, and Kennedy joined the conservatives; and Kennedy read in his dissent that the conservatives WOULD HAVE INVALIDATED THE ENTIRE LAW. This is further than virtually any other lower court went. And it’s completely nuts. The Indian Health Service was reauthorized inside the law. Was that unconstitutional?
…Lyle Denniston: “The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.” This is a big deal. Congress in the future may have to use far more of the taxing power than they are comfortable with. This is still a conservative ruling in many respects.
UPDATE: The slight risk to Medicaid’s state-federal partnership in the ruling is an excellent argument for federalizing Medicaid.