Published June 28, 2012
In the words of one Supreme Court justice, Thursday's historic ruling leaves the controversial health care overhaul "largely unscathed" -- but only by the slimmest of margins in the 5-4 ruling that put Chief Justice John Roberts in line with the court's more liberal members.
Though it seemed an odd alliance, with the conservative Roberts ruling that President Obama's signature domestic policy achievement should stand, the court's majority used a highly technical argument. And Roberts offered several notable disclaimers.
The chief justice, while he may take heat from his conservative peers for the ruling, said the decision on the wisdom of the law will ultimately be left to the voters. "We do not consider whether the act embodies sound policies," he wrote. "That judgment is entrusted to the nation's elected leaders."
Roberts went on to say the court's role is to interpret the law, not make policy judgments which is for lawmakers "who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."
The decision to uphold ObamaCare and its individual mandate forcing people to buy health insurance was based on the federal government's taxing authority rather than other powers.
The Roberts majority determined that Congress deserved reasonable deference on the determination of whether the cost incurred for non-compliance with the individual mandate to obtain insurance was a tax or a penalty.
"Congress's authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation -- especially taxation motivated by a regulatory purpose -- can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice," the majority wrote.
Justice Ruth Bader Ginsburg also spoke from the bench in part to say that while she and the other three members of the court appointed by Democratic presidents agreed with the ultimate outcome of the case, they would have preferred to see the decision based on the government's power to regulate commerce.
The four justices in the minority said the entire law should have been tossed.
Justice Anthony Kennedy read the dissent from the court's more conservative members. The nuances of the ruling hashed out by the majority were irrelevant to a more basic point, they argued. "Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs," Kennedy with Justices Antonin Scalia, Clarence Thomas and Samuel Alito wrote in their joint dissent.
In a conference call with reporters after the ruling, lawyer Paul Clement, who argued for the 26 states challenging the law, expressed some surprise about the majority that formed around the taxing power. He said the federal government had three chances to win the case and won with one of those. He said he hadn't had enough time to fully digest the role Roberts played with the ruling but said most people would have been surprised before it came down to learn that Roberts was not part of the strong four-member dissent.
Also on that call was Florida Attorney General Pam Bondi who questioned the public claims made in 2009 and 2010 by President Obama and other Democrats that the law wasn't a tax. She said it was disingenuous of them to make that claim to the American people.
The dissent said the interpretation of the taxing power was inappropriate, though. "To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling," they wrote.
While most of the opinion was split 5-4, only two justices disagreed with the court's determination that the Medicaid expansion of ObamaCare was impermissible. The court ruled that the threat by Washington to take away existing Medicaid funds from states who opted out of the expanded program was coercive.
Bondi said she was happy with that part of the ruling but said it's too soon to know what impact it will have on her state or others. It means for now that states will have the choice to participate in the expansion but that Congress will have to come up with alternative means to encourage involvement.