Judicial thunderbolts from on high....
Supreme Rulings. In National Independent Business v. Sibelius Chief Justice Roberts surprisingly sided with the four liberal justices, and delivered the opinion of the Court, affirming part of O-Care and reversing part of the law.
Anti-Injunction Act: Can a taxation provision can prevent a court challenge to the law now? Held, 5-4: the case is "ripe" for decision now. For this part of the case, the Court accepted the government's argument that the mandate is not a tax, so that the case could be heard now, instead of waiting until 2014, when taxes are actually levied and must be paid.
Individual Mandate: Can Congress force individuals to make purchases in interstate commerce? Held, 5-4: constitutional as a tax. That the President said it is not a tax, and Congress did not pass it as a tax, did not stop Roberts from joining the liberals. The government switched its argument in midstream--clearly an expedient gesture--and got bailed out by the Court. The Court allowed this because the government argued that under the A-I Act--a statute--O-Care is not a tax, but that under the federal Constitution it is. Put another way, the government said "not a tax" on Monday so it could get into court before 2014, and then said "is a tax" on Tuesday, to have the law upheld.
Medicaid Funding: Can the Congress force the states to spend more on Medicaid, and threaten them with loss of reimbursement if the states do not comply? Held, 7-2: Congress cannot penalize states for declining to participate in Medicaid expansion, by taking away benefits already given to coerce acceptance of the new law. Charles Lane writes that liberal justices agreed to a first-ever Court holding that a federal-state spending program is unconstitutionally coercive, as the price of getting Roberts to uphold the mandate as a tax. He notes that Justice Ginsburg said that half a loaf is better than none--indicating that a deal had been struck, a move Lane archly (correctly, too) notes justices routinely deny making. The financial numbers tell the tale: Medicaid comprises 20 percent of the typical state's budget, with the feds covering 50 to 83 percent of the state's costs; add in other sources of federal funds, and the feds contribute 37.5 percent to the typical state budget, a full $3 out of every $8. Projections are that for 2010 - 2019 the feds will shell out $3.3 trillion to cover state Medicaid costs--before the expanded program created by O-Care. Medicaid was originally designed to cover four groups: disabled, blind, elderly and needy families with dependent children. O-Care would have expanded it to cover all non-elderly whose incomes are below 133 percent of the poverty line.
Severability: Can provisions of the law found unconstitutional be severed from the constitutional parts of the statute, or must the entire law fall? Held, 5-4: The law is severable, despite the lack of a severability clause, with a small portion of the Medicaid provision being struck down. Justice Scalia's dissent notes that there is no constitutional warrant to sever part of the government's Medicaid expansion from the rest, and thus either the entire Medicaid provision should be invalidated or else the entire provision should stand. He noted that the truncated O-Care left by the majority created a law Congress did not write. Scalia would have invalidated the entire law (as would the three justices who joined his dissent (Thomas, Alito & Kennedy).
Overall Winner. Clearly President Obama. He may win come November, and his signature law will then remain on the books, mostly intact. Had he lost in Court, even if "O" won the election, given changes in the balance in Congress he very likely could not get O-Care passed a second time.
The Lie That Won. Michael Carvin, lawyer for the small business litigants, neatly summed up as to Obama & the Court: "What the Obama Administration… thought they were doing was completely unconstitutional; what they lied to the American people about was constitutional.… Unfortunately they got away with that bait-and-switch. A fraud has been perpetrated on the American citizenry."
Roberts, Carvin said, rewrote the statute, making a penalty into a tax. Charles Krauthammer sees a Roberts finesse--finding a way to uphold the law and thus preserve the Court's reputation as non-partisan--thus avoiding a 5-4 Republican-Democrat split. The NRO editors see a missed opportunity: Congress could have offered the uninsured a tax credit to buy insurance--in effect, rewarding those who choose to enter, in lieu of penalizing those who do not enter. George Will sees the ruling resuscitating popular concern about constitutional limits on powers of Congress, which the likes of Nancy Pelosi do not recognize.
Jonah Goldberg at NRO sees Roberts as a modern "haruspex"--the ancient Roman readers of sheep entrails to determine what crops to plant. He notes Scalia's calling the majority's formulation "{carrying] verbal wizardry too far, deep into the forbidden land of the sophists.” Also at NRO, Mona Charen sees a loss for truth in labeling--the decision rewards duplicity by lawmakers who denied that O-Care is a tax.
Roberts gives the gambit away on the last full page (44) of the part of his opinion covering the mandate, when he writes of the mandate being treated as a tax:
It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute so as to save it, if fairly possible, that [the mandate] can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction. (Italics mine.)
In other words, it is only because the Court rejected the government's argument that Congress had legal authority under the Commerce Clause to impose the mandate, that Roberts interpreted the mandate as a tax. But if the mandate is a tax under the Constitution, it is a tax, period. Surely the Constitution cannot be made to mean that the mandate is only a tax if the Supreme Court wants to save a statute from being struck down. Except, that is, in the world of John Roberts.
Scalia's dissent (pp. 25-26) tartly notes: (a) that "no federal court accepted the implausible argument that [the mandate] is an exercise of the tax power; (b) the government devoted all of 21 lines of its reply brief and that at oral argument before the Court the longest statement on the tax issue was all of 50 words; and thus, (c) "One would expect the Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression."
The Legal Principle Not Invoked by the Court: Estoppel. American law generally tries to prevent litigants from, in plain-speak, having their cake & eating it too. This is what estoppel does. A litigant takes one position, and then later takes the opposite position, when it suits his convenience. Courts frown on this, as well they should. The ninth print edition of Black's Law Dictionary contains 27 varieties of estoppel. Someday the Supremes should take notice.
Bottom Line. If ever there was a result that could not be predicted, this was it. No one can safely prognosticate the Supremes. They constrained federal interstate commerce regulatory authority, but expanded an already immense federal taxing power. What our robed lords giveth with one hand, they taketh away with the other.
Letter from the Capitol, LFTC, Economy, Conservative Politics
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