June 28, 2012
SCOTUS sidesteps the Commerce Clause, reaches to hang hat on Power to Tax--and upholds ACA. You wild man, John Roberts.
Fancy if surprising footwork there, John Roberts. And it was interesting to everyone to see how SCOTUS got there. Today by a 5-4 vote the U.S. Supreme Court surprisingly upheld the constitutionality of the Affordable Care Act passed by Democrats in 2010. And it did that with a ruling penned by Chief Justice Roberts which--to the Court's credit--did not create commerce when none existed to even regulate under the Commerce Clause. Bad constitutional lawyering by Roberts was avoided by his reaching to uphold ACA under the Power to Tax. The decision has a long-term effect on SCOTUS practice (and to a much lesser extent on constitutional law) and powerful short-term effect on, of course, the 2012 elections. CNN, by the way, had first reported that the ACA's mandate to make people buy insurance (clearly if unfortunately unconstitutional under the Commerce Clause, in our view, and the biggest problem with the ACA) had been struck down--but finally got it right. Excerpt:
The most anticipated Supreme Court ruling in years allows the government to continue implementing the health care law, which doesn't take full effect until 2014. That means popular provisions that prohibit insurers from denying coverage for pre-existing medical conditions and allow parents to keep their children on family policies to the age of 26 will continue.
In the ruling, the high court decided the most controversial provision--the individual mandate requiring people to have health insurance -- is valid as a tax, even though it is impermissible under the Constitution's commerce clause.
"In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance," Chief Justice John Roberts wrote in the majority opinion. "Such legislation is within Congress's power to tax."
Posted by JD Hull at June 28, 2012 02:54 PM
When you have nothing else better to do, take a look at the last case (not decided) yesterday, the First American case, where cert was denied, after oral argument in Nov., as improvidently granted.
Notice the case was on Art. III standing and was a slam dunk 5/4 for Scalia to really screw Congress.
However, if the Court said there was no standing in First American there would have been no standing in the "Romneycare" case.
Add to that all the comments on the Net about how the opinions are re-writes, that Roberts changed his vote, etc. and one has pretty good circumstantial that Roberts told the fascist four, at the last minute, we are not going to write a second Dred Scott opinion.
Posted by: Moe Levine at June 29, 2012 03:38 PM
..."we are not going to write a second Dred Scott opinion..." I think you have that one, right, Moe--and it's the impression I have, too. Think Roberts is a bit of a wimp sometimes--but this made me reevaluate him.
I am convinced that Scalia's writing was the original majority op.
Posted by: Hull at June 29, 2012 05:20 PM