Quantcast

«

»

Jun 28 2012

Health Insurance Mandate Upheld

Reports are out that the individual mandate has been upheld by a 5-4 ruling, with Chief Justice John Roberts joining the four liberal members of the court in upholding the mandate under Congress’ power to tax. I’m not shocked by this. The law was written that way on purpose, enforcing the mandate through the tax code because the Constitution explicitly grants the power to tax to Congress. No link to the ruling yet.

Amy Howe at SCOTUSblog offers this key quote from the ruling:

Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

The ruling is now available on the Supreme Court website. Get it before the server crashes. Here’s the key section from the syllabus:

Such an analysis suggests that the shared responsibilitypayment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy healthinsurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance.

58 comments

1 ping

Skip to comment form

  1. 1
    Reginald Selkirk

    Wow, that was quick coverage.

  2. 2
    otrame

    Wow. Just wow.

  3. 3
    YankeeCynic

    I may have to keep my browser set to Right Wing Watch. The psychopathy from some of the Tea Party right is going to go into overdrive, and it’s going to be hilarious.

  4. 4
    rmw1982

    I was unaware that Roberts was one of those “activist judges”.

  5. 5
    Reginald Selkirk

    I wonder if Roberts has concerns about what his legacy will be, after the Citizens United ruling.

  6. 6
    Who Knows?

    I wasn’t so confident and when I checked CNN about 15 minutes ago it said it was struck down, now their site says UPHELD. Breathing easier now.

  7. 7
    Area Man

    So, did Kennedy side with the dissent?

  8. 8
    richardelguru

    I ‘spose it’s good, but the US really needs to have a really socialist healthcare system.

    (I mean Jesus is reputed not to have expected to be paid before healing someone*: and they call themselves Christians.)

     
     
    ___________________

    * nor, I suspect, after healing them

  9. 9
    Ed Brayton

    From SCOTUSblog’s live blog:

    In opening his statement in dissent, Kennedy says: “In our view, the entire Act before us is invalid in its entirety.”

  10. 10
    dean

    So will Scalia explode due to Roberts’ decision in deciding to uphold the plan? That would be an interesting result.

  11. 11
    Mr Ed

    Tonight we will see a wave of tea party activist each riding a Medicare paid for scouter complaining about government health care.

  12. 12
    Tualha

    If Scalia ever explodes, he will make sure to do it when a Republican is president. So, no.

  13. 13
    joachim

    As I understand it, people over a certain age will not be eligible for certain treatments.

    Admittedly, I have not read the whole ACT…of course, as Pelosi said we had to pass it before we could find out what was in it.

    But what this means is that the Government can order you to do anything.

    And a Government powerful enough to do everything for you, is powerful enough to do anything to you.

    We are not Free Citizens anymore.

    Time to get ready.

  14. 14
    Zeno

    I figured that any vote upholding Obamacare with Roberts in the majority would have to be 6-3, but Kennedy dramatically refused to go along and narrowed it to 5-4. Is this a one-time thing, or is Roberts the court’s new swing vote? Don’t know.

    The next step is to keep Romney from getting any Supreme Court nominees. A couple more Obama appointees like Sotomayor and Kagan will keep the court from turning into even more of a right-wing bastion. I hope for the day when Scalia gets replaced by a sane person.

  15. 15
    Michael Heath

    At SCOTUSBlog.com’s live blog thread, Lyle at 10:26:

    Justice Ginsburg makes clear that the vote is 5-4 on sustaining the mandate as a form of tax. Her opinion, for herself and Sotomayor, Breyer and Kagan, joins the key section of Roberts opinion on that point. She would go further and uphold the mandate under the Commerce Clause, which Roberts wouldn’t. Her opinion on Commerce does not control.

  16. 16
    Michael Heath

    Same source as above, except Amy Howe @ 10:32:

    10:32
    Amy Howe: In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

  17. 17
    Who Knows?

    But what this means is that the Government can order you to do anything.

    Bullshit.

  18. 18
    eric

    Joachim:

    But what this means is that the Government can order you to do anything.

    I’d really like to know how you got from “Congress has the power to make you buy healthcare based on its power to levy taxes” to “the Government can make you do anything.”

    Anything? Really? Have sex with a goat? Jump off a high rise?
    Getting a bit histrionic, aren’t we?

  19. 19
    Michael Heath

    Lyle @ 10:48 [same source as previous two comment posts]:

    For readers of the opinion, a quick look at pp. 31 and 32 of Roberts’ opinion tells you why the Court is sustaining as a tax measure.

  20. 20
    eric

    Actually, after reading @16 its even more limited than what I wrote in @18. Its more like: the courts ruled that Congress has the power to levy a tax on you if you choose not to buy healthcare.

  21. 21
    dean

    Joachim, she did not say (as you imply) that “we need to pass it so we (implying she and her colleagues) can know what is in it” – you seem to be saying they hadn’t read it. She said

    “But we have to pass the bill so you can find out what is in it, away from the fog of controversy.”

    (my emphasis on you).

    If my interpretation of your comment is off I will apologize. However, from the rest of your comment, I doubt will need to.

  22. 22
    slc1

    Re joachim @ #13

    How dare the states be allowed to require someone to purchase liability insurance from a private company in order to obtain a driver’s license.

  23. 23
    dean

    Also, it seems that Roberts is saying he would not have decided to uphold this if it were simply requiring people to buy insurance; it is the qualification of the tax that led to his decision.

  24. 24
    d cwilson

    Admittedly, I have not read the whole ACT…

    But you’re perfectly fine repeating unsubstantiated rightwing talking points.

    The law was passed over two years ago. Educate yourself on what the law actually says before you spout off.

    of course, as Pelosi said we had to pass it before we could find out what was in it.

    No, that’s not what she said. But hey, why let the truth get in the way of a good talking point, right?

  25. 25
    iangould

    Joachim said:

    “Admittedly, I have not read the whole ACT…of course, as Pelosi said we had to pass it before we could find out what was in it.”

    Tell me, Joahcim do you make it a habit to read Congressional bills?

    Did you, for example, read The Patriot Act before it was passed?

    How about the Bush Medicare pharmaceutcial benfits plan which increases the US deficit? (As opposed to the ACA which reduces the deficit.)

  26. 26
    bobaho

    The next step is to keep Romney from getting any Supreme Court nominees. A couple more Obama appointees like Sotomayor and Kagan will keep the court from turning into even more of a right-wing bastion. I hope for the day when Scalia gets replaced by a sane person.

    While I agree that If Romney were elected there would be the possibility of a Republican retiring from the bench. If Ginsburg was considering retirement, I suspect she would do so soon, and so provide Obama with the opportunity to replace her before October. Nevertheless, I wonder why there is this fear that Romney will have so much opportunity to stack the court. Breyer, Sotamayor, and Kagan are not likely to go anywhere soon. Romney, if elected, will likely plunge the US into such a deep recession/depression that his reelection is unlikely.

  27. 27
    Abby Normal

    I’m surprised by this decision. If the bill had applied a health care tax on all citizens then offered an exemption to anyone with health insurance that would have fairly clearly been constitutional. But going in the other direction, taxing people for not purchasing a private service, that’s conceptually different enough that I thought Roberts and Kennedy would balk, even though they’re functionally equivalent.

  28. 28
    slc1

    Re bobaho @ #26

    It is unlikely that Ginsburg, who has health issues, will make it to 2016. Thus, if Romney is elected, he would have the opportunity to replace her with a fascist goat fucker like Scalia. Think otherwise, Robert Bork is his adviser on judicial appointments.

  29. 29
    d cwilson

    I’m surprised that Roberts was the swing vote. Up until now, he’d been the perfect corporate tool. Maybe he finally realized that the entire idea of the insurance mandate (really, a tax on not buying insurance) was actually the conservative solution first proposed by the heritage foundation.

    I’m not surprised by Kennedy’s vote. He’s been drifting further and further to the right as he gets older.

    Okay, now that this battle is over, let’s start the campaign to convert all of the state health exchanges into public options.

  30. 30
    Gregory in Seattle

    To be honest, I oppose the mandate: it is designed to line the pockets of insurance companies and does absolutely nothing to make actual health care affordable. I would much prefer a single-payer non-profit public option.

    Yeah, I’m not holding my breath on that one, not while insurance companies have been given free rein to buy elections.

  31. 31
    Trebuchet

    Does Congress have to take action to amend the bill so it reads as a tax rather than a penalty? That, of course, will never happen with the current congress, so Roberts may have just struck down the individual mandate without actually striking it down. The good thing is that at least the concept is upheld.

  32. 32
    Gregory in Seattle

    @d cwilson #29 – Roberts remains the perfect corporate tool, thus his support of the ACA.

    The meat of the package is the individual mandate. The mandate was put into place to placate the insurance companies on the other issues: sure, they will lose on some provisions, but forcing every American to buy insurance whether they can afford it or not will more than make up for the losses.

    The only thing that Roberts’ vote shows is that he is not a Tea Party tool as well.

  33. 33
    d cwilson

    I wonder why there is this fear that Romney will have so much opportunity to stack the court. Breyer, Sotamayor, and Kagan are not likely to go anywhere soon.

    No, but as you noted, Ginsburg is likely to retire soon due to her health. If she retires before the election, you can bet the GOP is going to filibuster any nominee Obama names in order to push the final selection back until 2013. And that’s all Romney would need. Another Scalito clone would give the GOP an almost unbreakable 6-3 lead, which would virtually guarantee a conservative win on every case, even if one of the GOP appointees occassionally defects.

  34. 34
    d cwilson

    Does Congress have to take action to amend the bill so it reads as a tax rather than a penalty?

    No. It was always set up as a de facto tax. That’s why it was handed the IRS for collection, even though the bill makes it virtually impossible for them to do so.

    They just didn’t call it a tax because that would have been political suicide.

  35. 35
    YankeeCynic

    @13: What do you think about the Selective Service Administration? By federal law you’re mandated to enroll, with the expressed purpose of slapping a uniform on you and sending you to war and keeping you there? How is that any less invasive than mandating that people should be financially responsible for a service they will use throughout their lives? Hell, what about paying taxes?

    Do you even listen to yourself talk?

  36. 36
    sailor1031

    How interesting; obviously the concurring justices paid attention to Scalia’s concurring opinion in Gonzales v. Raich, while Scalia himself ignored his own opinion. Has the man NO ethical standards whatsoever?

  37. 37
    drr1

    I’m still reading the opinions (nearly 200 pages!) and will need some time to consider it carefully, but my initial impression is that the Roberts opinion is very Marshall-esque. By that I mean that it brings to mind Chief Justice Marshall’s opinion in Marbury v. Madison, where the Court handed the Jefferson administration a win in the battle over judicial confirmations, but Marshall managed to win the much larger war over judicial review.

    Without a doubt, this is a big win for the Obama administration and Democrats on health care. But Chief Justice Roberts also said (his opinion is controlling, as the Court split 4-4, with the Chief as the “swing” vote [and to respond to a comment above: no, I don't think this means that Chief Justice Roberts is the new swing vote]) that Congress lacked the power to impose the mandate under the Commerce Clause. The conservative bloc of the Court has been itching for years to dial back the commerce power (Raich notwithstanding), and for them this was a moment to be seized. The arguments against the commerce power were and are exceptionally weak, but clearly that did not matter. Chief Justice Roberts was willing to lose the healthcare battle to win the Commerce Clause war, so to speak.

    Again, all preliminary thoughts, as I’m working through the opinions.

  38. 38
    eric

    Gregory in Seattle:

    To be honest, I oppose the mandate: it is designed to line the pockets of insurance companies and does absolutely nothing to make actual health care affordable. I would much prefer a single-payer non-profit public option.

    Well, but its not SCOTUS’ job to weigh in on the question of whether this health care policy is good or whether there’s a better health care policy alternative. Its just their job to determine whether this one is constitutional or not. As Justice O.W. Holmes said, “If my fellow citizens want to go to Hell, I will help them.”

  39. 39
    Childermass

    But both CNN and Fox News reported it was struck down.

    There might just be a small problem of writing your news stories before you know what actually happened.

  40. 40
    Dennis N

    I think the interesting question will now be which wingnut states are going to opt out of Medicaid expansion, even when it is a sweet financial deal for them. And whether they will face any electoral consequences for it (I doubt it).

  41. 41
    D. C. Sessions

    If Roberts had swung towards the minority decision, we would have been staring at a green light to overturn:

    The EPA
    Medicare
    Medicaid
    “One Man, One Vote” limits on gerrymandering
    The Civil RIghts Act
    The Voting Rights Act
    All legislation supporting workplace rights
    All legislation supporting womens’ rights
    Social Security

    “Radical” isn’t the word. This would have been more radical than almost anyone but Ron Paul could stomach. The voting backlash this November would have been epic — and the Supreme Court would have lost any credibility it might still have as a nonpartisan body.

    Roberts’ decision was, simply, to save the Court and the Republican Party from his own radicals. A purely political decision.

    Credit, by the way, to Robert Reich. He called this one.

  42. 42
    Michael Heath

    Gregory in Seattle:

    To be honest, I oppose the mandate: it is designed to line the pockets of insurance companies and does absolutely nothing to make actual health care affordable.
    [emphasis mine - MH]

    This is far out there as joachim’s absurd comments. The mandate increases the population of people being insured. This increase disproportionately comes from younger healthier people; that in turn spreads the cost of less healthy people’s insurance claims across a more diverse group than themselves. From this perspective younger people will be paying a higher premium than their class but when they’re older, they’ll also be paying a marginally smaller premium relative to their class. The mandate is a critical factor in making insurance affordable. I think a government single-payer model is what we should work towards, which Obamacare works towards with its expansion of Medicaid, but denying the math on how insurance pools work is not a valid argument against the mandate.

  43. 43
    dingojack

    I confess I find this whole debate perplexing.
    Here, everyone who gets paid a wage pays a percentage of their taxes toward Medicare (1.5%, I think). This pool of money then is used to fund the healthcare needs of those who can’t afford it (it’s means tested). Thus everyone is healthier, more productive and able to work. It’s cheaper per patient, has better health outcomes and lowers health premiums for those who can afford more cover (poor people tend to have more health issues). Everyone wins.
    Dingo
    —–
    As I mentioned before: thnks to Medicare my Dad’s hip replacement cost a modest sum, not his whole leg.

  44. 44
    magistramarla

    I’m wondering if this leaves an opening for instituting a single-payer system, paid for by taxes, like other civilized countries. I would much prefer to pay higher taxes to insure that everyone has decent healthcare.

  45. 45
    eric

    magistermala – that opening existed before this ruling, and still does.

    Its beyond question that the US government can constitutionally set up a system that uses a tax to provide people with government health care. That is what Medicare, Medicaid, and the VA already do.

    The reason Congress and the President did not do that has nothing to do with constitutionality. It has to do with GOP resistance to adding new goverment services and the tax base to support them (in fairness, some Dems might not have supported it either).

    This system creates the illusion of no new tax, even if having to buy X is economically similar to being taxed to get X.

  46. 46
    Reginald Selkirk

    I’m wondering if this leaves an opening for instituting a single-payer system, paid for by taxes, like other civilized countries.

    Which would also neatly negate such nonsense as religious employers whining about having to fund various portions of their employees’ health care.

  47. 47
    savagemutt

    joachim’s comment reminded me of a bumper sticker a friend of mine had in the 80s, right after my state passed its mandatory seat belt law. It had a picture of a hammer and sickle next to the phrase “Seat belts are only the beginning!”

    I’m sure we’re all aware of how identical our nation is now to the late USSR. But I fear now I’ve said too much and the secret police are on their way.

  48. 48
    rx7ward

    Gregory in Seattle: “forcing every American to buy insurance whether they can afford it or not”

    It is my understanding that people with incomes below a certain level will be exempt from this requirement … so, not so much.

  49. 49
    Gregory in Seattle

    @Michael Heath #42 – There is nothing in the ACA that lowers the cost of premiums: the closest it gets is to require insurance providers to spend at least 80% of received premiums back to the people it covers. I cannot speak for other states, but here in Washington, providers have been exploring ways to fulfil the letter of the law while still being able to post record profits and jack rates up by double digits every year. Another problem with the mandate is that the ACA does not set co-pays, deductibles and other additional costs. The strong expectation is that providers will offer “affordable” plans with very high co-pays and absurd deductibles, resulting in families being forced to by coverage that will never actually kick in. Even with the insurance marketplace idea, most states have very few health insurance companies that are licensed to do business: it will be easy to legally collude to keep benefits low and premiums high.

    @rx7ward #49 – As we see time and time again, there is always a large no-man’s land with regards to income-based exemptions: people who are technically too wealthy to get it but too poor to get by without it. Since the ACA became law, there have been plenty of reports showing that many families will face financial collapse if they buy the mandated insurance, and that millions of families will find it more feasable to pay the fines and take their chances than to buy insurance. These are not good situations.

  50. 50
    Gregory in Seattle

    And lest my position be misunderstood….

    I strongly support a public option: let’s take Medicare and extend it to all Americans. Premiums could be taken either as a payroll assessment, or as a line-item calculation in federal income tax. The national health insurance would provide a baseline of services with no co-pay and a minimal deductible. Private insurance providers can offer supplimental policies that offer services above the base line.

    I am trying not to be a concern troll. Most of the ACA I like and support fully. The mandate, however, I have issues with, for the reasons I outlined above.

  51. 51
    Homo Straminus

    @48: Ah, comrade, you forget! In soviet Russia, the mutt savages YOU!

  52. 52
    ildi

    Since the ACA became law, there have been plenty of reports showing that many families will face financial collapse if they buy the mandated insurance, and that millions of families will find it more feasable to pay the fines and take their chances than to buy insurance.

    Citations, please?

  53. 53
    leni

    To me it doesn’t seem substantially different than not getting tax breaks for being unmarried and childless. That hardly means the government is forcing me to have children.

  54. 54
    raven

    Re joachim @ #13

    How dare the states be allowed to require someone to purchase liability insurance from a private company in order to obtain a driver’s license.

    Naw.

    It was before that. When they started requiring you to get a LICENSE to drive a car. Then they make it illegal to drive drunk!!!

    It was all downhill from there. In some places, they even make you get a license for your dog!!!

    We are truly a fascist state. Any day now, we will all be herded ito FEMA concentration camps by the Space Reptiles.

  55. 55
    raven

    joachim:

    And a Government powerful enough to do everything for you, is powerful enough to do anything to you.

    Those who can believe in absurdities, can also commit atrocities. Voltaire.

    Joachim has the believing in absurdities down pretty well. I hope he doesn’t live around us.

    The fact is, the USA is the only developed country without some sort of national health care. Last I heard, they were as stable and prosperous as we are, Canada, the UK, Germany, Scandinavia, Japan.

  56. 56
    meg

    @Dingo

    With you on that one.

    Had a conversation with a sister last night re various costs of medical bills. A friend of hers gave birth to twins at 26 weeks. As she was admitted as an emergency patient, total cost, with 3 months neonatal intensive care (one baby unfortunately died at 1 month) and home visits, $0.

    While we whinged about our health covers, we both agreed we were lucky to be live here, and not in the US. The idea that the govt WON’T help you stay healthy is foreign.

    And it’s economic sense. For me, recent illness meant I did have to spend some money, but the bulk was covered by medicare. The result – I’m going on a holiday next month. Spending money in the local economy. If I’d had to pay the full cost of those bills, there’s no way I could have afforded it.

  57. 57
    dsmccoy

    Good comments @37 and @41 on just how conservative the ruling actually is.

    This ruling represents a huge “get out the vote” opportunity for the radical right to attempt to muster enough votes in congress to repeal ACA.

    So it’s really good news short term, but not clear whether this will hold as good news for the long term or not.

  58. 58
    democommie

    “Scalia himself ignored his own opinion. Has the man NO ethical standards whatsoever?”

    Is that what they call oneathem rhetorical questions?

    Tony Ducks is a liar, a bully and a ReiKKKwing hack. Why people continue to talk about his legal expertise is beyond me. We have village judges in my neck of the woods and they can be very corrupt. I would take my chances with most of them over being tried by an asshole like Scalia.

  1. 59
    The Court’s Ruling: ACA Upheld Under Tax Clause (So, the Battle Will Remain) | bettysanto

    [...] summary of how the ACA was ruled. Short and sweet. #ACA Ruling freethoughtblogs.com/dispatches/201… [...]

Leave a Reply

Switch to our mobile site