The Magazine

Undoing the Damage

The (legal) case against Obamacare.

Dec 23, 2013, Vol. 19, No. 15 • By TERRY EASTLAND
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As we know, the fact that the mandate failed under the commerce clause did not mean that the ACA was struck down. As Blackman relates, Roberts, stating that the Court must resort to “every reasonable construction .  .  . in order to save a statute from unconstitutionality,” read the mandate as imposing not a penalty but a tax, and, as such, as a valid exercise of the congressional power to levy taxes. In sum, you either have insurance or you don’t—either being a valid option—and if you don’t have insurance, you pay not a penalty but a tax increase. The Court’s four judicial liberals—all of whom believed the mandate was constitutional under the commerce clause—joined Roberts in this part of his opinion, thus creating a tax-power majority of five for saving the mandate. 

Roberts also addressed the constitutionality of the other provision in the ACA designed to expand health care coverage, which was focused on those not able to buy insurance. Under the so-called Medicaid expansion, states could receive new funding under Medicaid if they provided more insurance for more people. Failure to comply with the law’s conditions meant, however, that a state could lose not just the new funding for the expansion but all of its Medicaid money. 

While the states had not won on this issue in the lower courts, Roberts agreed with their argument that the threat of withholding served “no purpose other than to force unwilling states to sign up for the new program.” That was a serious threat—“a gun to the head,” he wrote—and as such it triggered the Constitution’s prohibition against unlawful coercion, a view shared by the two judicial liberals who joined this part of his opinion (Justices Breyer and Kagan) and by the four justices in agreement with Roberts on the commerce clause. 

But Roberts, as Blackman writes, “reached yet another compromise position. .  .  . Congress could offer new funding to states agreeing to participate in the Medicaid expansion .  .  . [but] it could not take away all of the funding from states that chose not to,” a remedy embraced by the four judicial liberals. Roberts thus “had found a way to save the mandate—and the Medicaid expansion.”   

Roberts’s saving efforts drew vigorous objection from Scalia, Kennedy, Thomas, and Alito, who wrote an unusual “joint dissent.” They would have held the ACA invalid in its entirety. They would not have saved the mandate by framing it as a tax, nor would they have remedied the constitutional problem with the Medicaid expansion by reframing the statute and changing its design. The Court “saves the statute Congress did not write,” wrote the dissenting justices. “The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to vast judicial overreaching.”

Argued March 26-28, 2012, NFIB was handed down on June 28. Three days later, relying on unnamed sources, Jan Crawford of CBS reported that Roberts “initially decided [with] four Justices to strike down” the individual mandate on commerce clause grounds. The implication was that, at some point after the post-argument conference of justices, Roberts had changed his vote or fully made up his mind. Crawford also said that Justice Kennedy had led a “month-long, desperate campaign to bring [Roberts] back to his original position,” and that Kennedy “didn’t give up until the end.”

Hoping to advance Crawford’s story, Blackman reached unnamed sources close to the Court to see what more could be reported; there was not much. Blackman also looked outside the Court, to public statements made after the case was argued by President Obama and other Democrats making clear, as one veteran Supreme Court reporter told Blackman, “that striking down the law would throw the Court into a partisan fight.” Noting Crawford’s observation that Roberts, in his capacity as chief, is “keenly aware of his leadership role on the Court” and also “sensitive to how the Court is perceived by the public,” Blackman concludes that “we may never know for sure whether [the Democrats’ statements] had an impact on the chief justice.”

Later in the book, Blackman notes that Crawford said of her sources: They “flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the president,” but instead “believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law.” Blackman basically accepts this view: “[Roberts] apparently chose to save the law in the short term in order to preserve what he believed to be the best interests of the Court in the long run.”