Special Commentary – Health Care Reform in the United States – Part IX:
The Law of the Land
On June 28, 2012, two dozen colleagues were gathered in a Washington conference room to await the Supreme Court’s ruling on the constitutionality of the Affordable Care Act. There were Democrats, independents, and disaffected Republicans gathered together in the knowledge that history was to happen in the next hour. A few friends of the group had gained access to the Courtroom, but their electronic devices were locked up in security, unable to flash messages to the rest of the world.
As each in the room would agree, often for differing reasons, ObamaCare isn’t perfect, but it does represent the evolution of work and ideas over a span of years. It is built on a political and policy consensus that combines Democratic health-care initiatives from government with Republican assurances of personal responsibility in a private insurance market. People who, years earlier, had drafted the Clinton-era proposals were joined around the conference table with those who had been part of the opposition. There was, to say the least, anticipation.
Shortly after 10 in the morning came the newsflash from CNN. The Individual Mandate is not Constitutional. The anchor reads the headline as it flashes in the chyron across the bottom of the screen.
“This is a dramatic moment,” intones Shock-and-Awe Wolf Blitzer, who first came into the lives of all those around this table two decades earlier as bombs rained on Baghdad.
Wolf passes the story off to John King for instant analysis. “This is a direct blow to President Obama. This is a direct blow to the Democratic Party.”
The reaction is no surprise, given CNN legal analyst Jeffrey Toobin’s unequivocal insight into the case during oral arguments. He claimed Solicitor General Donald Verrilli’s presentation had been “a train wreck.” Though this is not a phrase found in the Constitution, it was sufficiently incendiary to reside at the bottom of CNN’s screen for the entirety of an afternoon in March.
Yes, ObamaCare was going down and CNN saw it coming.
There wasn’t much movement around the conference table as the news sunk in. Then a voice from an adjoining room shouted, “SCOTUSblog says the law is upheld in its entirety! It says the individual mandate is upheld under the Congress’s authority to tax!”
Back on CNN, Blitzer softens. “We’re getting widely different assessments,” he claims.
In the end, it was a simple glitch. CNN went live with a story after only reading two pages of the decision. Lyle Denniston, the SCOTUSblog reporter who has been covering the Supreme Court for fifty-four years, kept reading through page four and beyond and got the story right. For Jeffrey Toobin’s part (likely hoping to preserve whatever commercial credibility he can for a forthcoming book on the titanic struggle for the future of the republic between President Barack Obama and Chief Justice John Roberts), he tipped his hat to the Solicitor General, acknowledging “Verrilli’s argument won the case.”
In that Washington conference room, we all take a breath. There is applause as many reflect on a lifetime’s work. It’s not a perfect victory as Chief Justice Roberts brought two liberal justices (Breyer and Kagan) into a coalition with the conservative four, forming a 7-2 opinion rejecting the federal government’s power to withhold existing payments to states that do not comply with the ACA’s Medicaid expansion. Still, despite that limitation on enforcement power, the Patient Protection and Affordable Care Act, all ten titles, is now the law of the land.
Wolf says no, but someone’s laptop says yes! That’s a moment that will live in the memories of those around that conference table for a very long time.
CNN apologized for the error in reporting. Fox made the same mistake, but presumably felt that the Court, not the network, got it wrong. There’s an important lesson to take, however, from the fifteen minutes of confusion. As the political and policy discussions of 2012 proceed, our nation has evolved an incredibly distorted system of public communication. In cable news, speed tops accuracy with a certainty sufficient to label the bottom of the screen with wholly incorrect information. Two networks, Fox and MSNBC, add the ideological spin necessary to lock-in the commercial loyalties of their audiences. The memorized recitation of pre-tested talking points by campaign surrogates and the outright distortions of billion-dollar-advertising buys from the campaigns and SuperPacs have wholly abandoned nuance, placing honesty and even reality on the ropes. Within that distorted information flow, the Court’s decision, itself, is a delight for the patient reader.
Reviewing the issues framed earlier in our series, the Court unanimously agreed that the Anti-Injunction Act of 1867 did not preclude hearing the case prior to 2015, when the first penalties for non-compliance with the individual mandate would be paid. To reach that decision they held that while Congress may have intended the avoidance of the individual mandate (known in the language of the law as the “shared responsibility payment”) as a penalty (and thus not precluded by the Anti-Injunction Act), the label that the Congress applied through the language of the bill still can’t control whether it really is a tax. This may have been Robert’s wink, given what was to follow.
Question number two was whether the individual mandate was permissible under the commerce clause of the Constitution. As we’ve noted earlier, most legal scholars assumed that this was well within the historical interpretation of the federal government’s power to regulate interstate commerce. This was challenged by the plaintiffs whose argument boiled down to, “If I never buy insurance in the first place, how can the government regulate that activity?” This was followed by, “If they can force me to buy health insurance, then they can force me to buy broccoli!”
Chief Justice Roberts (along with Scalia, Thomas, Alito and Kennedy) agreed on that point, observing that, “The Framers knew the difference between doing something and doing nothing,” and “ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers.”
Thus, the mandate, can’t be sustained under the Commerce Clause. That was what the Court wrote on page two of his decision. Then, with one of the most profound head-fakes in American Constitutional history, Roberts looked right, let the conservative-four touch the ball, then pulled it back and drove left to the basket.
Remember Roberts’ wink in the opening lines of the decision. Congress may not label the payment a tax but, “following a functional approach . . . [i]t may also be read as imposing a tax on those who go without insurance.” Thus, the “. . . mandate may be upheld within Congress’s power under the Taxing Clause (of the Constitution).”
As it turned out, Justices Breyer, Kagan, Ginsburg, and Sotomayor agreed. Final score for the individual mandate: five to four.
The third question we considered in recent installments is severability. There was concern that if the individual mandate were struck down, then the requirement for insurance companies to provide coverage without the ability to deny for preexisting conditions or to place payment caps on individuals would also have to be struck down. That point became moot with the mandate upheld. As their dissent made clear, had the decision gone the way of the conservative four, the entire law would have been overturned.Page 1 of 2