SCOTUS rules on ACA

Supreme Court – Who’da thunk? Well, I, for one.

On June 28, I was en route to Washington for the NEA Representative Assembly with a busload of northeastern Ohio delegates when my lovely wife Lynn texted the Supreme Court’s decision to uphold Obamacare (I guess it’s all right to call it that now) to me.

When I passed the word along, the bus erupted in cheers, and people flogged their smartphones with demands for information from MSNBC, CNN, The Plain Dealer, and the oddly-silent Fox News.

It was a long and uneventful ride, so I decided to check out the opinion itself. I recommend reading the opinion itself; it’s surprisingly readable.

I didn’t see the TV news coverage myself, but I understand that analysts were initially confused because SCOTUS ruled against the government on one issue and for the government on another. Evidently there was some skirmishing about whether the Court should rule it completely constitutional (since that would be the effect of the ruling as a whole) or completely unconstitutional, since it ruled against the government’s first line of defense, the Constitution’s interstate-commerce clause.

But evidently–and
as a non-lawyer, I certainly did not know this–it is law settled in
1895 that “every reasonable construction must be resorted to, in order
to save a statute from unconstitutionality”; and so the finding that the
law is constitutional on one instead of two grounds is sufficient.

As I understand it,
the Government failed in its attempt to include health care in
interstate commerce because the Constitution’s interstate-commerce
clause allows the government to regulate existing interstate commerce,
but not to simply create a whole class of interstate commerce. This is
the source of Justice Scalia’s comment that if you can force people to
buy health care, you can force them to buy broccoli; and sure enough, the
ruling mentions broccoli. (Gotta love SCOTUS humor!)

But the Court rightly understood that a tax is different from a criminal
penalty, and noted that since everybody agrees that the government has
the authority to use tax policy to incentivize (for example) education
and home ownership (and, I would add, marriage), then using tax policy
to incentivize a health insurance purchase is within the government’s
legitimate authority.

Or, as the Court put it: “Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance. 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. . . . Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.”

I don’t often have the opportunity to say “I told you so,” but in this
case it appears I can: in fact, I had called it a year previously. On
July 8, 2011, I sent the following in an email exchange with my cousin
Dick: