No Health Care Rant Here Today

I intended to go on an extended rant today about health care and conservative overreach, but given today's ruling, the planned rant is postponed:

The Supreme Court has ruled 5-4 that the Affordable Care Act meets constitutional muster and can be allowed to continue its slow process of transforming the nation’s health care system.

Thursday’s historic decision, authored by Chief Justice Roberts, was by no means a fait accompli. Though the consensus among constitutional scholars has always been that the law’s insurance mandate did not exceed Congress’ Commerce Clause powers, its opponents erected a counterargument that quickly became an article of faith on the right. In the end, Roberts’ decision upheld the mandate as an exercise of Congress’ taxing power.

The outcome has been a point of tense speculation, hope and anxiety both in Washington and around the country from the moment President Obama signed health care reform into law.

Complicating matters for the law’s supporters, the administration’s top legal advocate, Solicitor General Donald Verrilli, choked in oral arguments before the Supreme Court — out-litigated by the GOP’s star attorney Paul Clement.

And in the days leading up to the decision, a peculiar conventional wisdom took hold — in the media, and among political and judicial veterans — that the mandate, and possibly other key provisions, or the whole statute, would fall.

But during oral arguments, Roberts tipped his hand, and provided the Court a glimpse at his ultimate reasoning. By siding with the Court’s liberal wing, he may have saved the entire law. In the dissenting opinion, Justice Anthony Kennedy, writing on behalf of Justices Samuel Alito, Clarence Thomas, and Antonin Scalia, held that “in our view, the entire Act before us is invalid in its entirety.”

From the moment the law was enacted, most Court watchers expected that the ACA’s fate would hinge on the Court’s interpretation of Congress’ Commerce Clause powers. Conservatives contended that, by ultimately requiring people to enter a market, the health care law would compel idle uninsured people into activity — an arguably novel use of the Commerce Clause and one the challengers claimed exceeded constitutional limits. In the end, the five conservative justices, including Roberts, agreed with this argument. Only Justice Ruth Bader Ginsburg among all nine justices explicitly argued otherwise.

“The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions,” Roberts wrote. “Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.”

But Roberts nonetheless determined that, by allowing consumers to choose between purchasing insurance and paying a penalty, the mandate should be allowed to stand as an exercise of Congress’ taxing power.

“[I]t is estimated that four million people each year will choose to pay the IRS rather than buy insurance. We would expect Congress to be troubled by that prospect if such conduct were unlawful,” Roberts wrote in his controlling opinion. “That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.”

Roberts went on: “Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote, for example, purchasing homes and professional educations. … The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

The ruling ends a Quixotic conservative quest to vanquish Obama’s signature achievement by fiat. It also devastates the GOP’s long-standing appeal to voters that the law exists as a monument to liberal overreach, in defiance of accepted limits on federal power. That Roberts, a conservative emissary to the Court, voted to uphold is particularly devastating.