It was 5-4, but curiously enough, it was Bush-appointed Roberts rather than Kennedy who broke from the conservative pack. Roberts agreed with the conservatives that to force individuals to engage in affirmative economic activity (instead of mere prohibitions) was a “novel” application of the Commerce Clause (and only Ginsberg actually argued that proposition). But he ruled that by allowing the choice between mandated coverage and a penalty, the act is lawful by virtue of taxing power – the “penalty” constituting a “tax.”
Josh Marshal on why this is a good result even if you support single payer healthcare.
Both Fox and CNN managed to bungle the story this morning, proclaiming that Dewey had won.
Hank has some good stuff.
Republicans are pushing repeal (again). Orrin Hatch twittered:
This ruling doesn’t change the fact that a majority of the people of Utah and across America want this law repealed. #utpol #SCOTUS — @OrrinHatch via Twitter for iPhone
Only, that’s not true.
I will have more to say later.
Addendum: The Nation posted an excellent article on the ruling, explaining Roberts’ decision pretty well, and dismissing concerns about the impact on the Commerce Clause since this was the first law ever to mandate economic activity (usually it simply regulates or prohibits it). And the Medicaid funding issue was explained, and I didn’t get it until I read the article as it has been misreported everywhere all day long.
The other provision challenged conditioned state’s receipt of Medicaid funding on their implementation of the Act’s greatly expanded Medicaid coverage. Where Medicaid initially covered only several discrete categories of persons, under the ACA it extends to all adults earning less than 133 percent of the poverty level. The states argued that threatening them with loss of all their Medicaid funding was a coercive condition on the funding. Seven members of the Court agreed that if the law were enforced to take away state’s existingMedicaid funds it would be unconstitutional, but the majority upheld the provision as a condition only on the funds provided for the expanded Medicaid program. It seems unlikely that states will turn down those funds. Under the ACA, the federal government initially covers 100 percent of all new Medicaid costs, and while the federal contribution diminishes over time, it never falls below 90 percent of the program’s cost, so any rational state will likely take the money and expand its coverage.
I think a few small red states might initially refuse the money, but I doubt that’ll last more than a few years.
And Nation also provides this survey of conservative responses.
So, did this decision render Obama a one-term President? He goes down in history as having fundamentally altered the structure of the health care economy either way, and he did say the first time around that if passing a universal health care measure limited him to one term that he could live with that. But can the rest of us live with three or four Justices being appointed by Romney? I wish we had gotten a public option out of the deal, even though I think it will eventually happen.
I’m not convinced however. Yes, Obama will be outspent thanks to Citizens United, but he does benefit from the fact that his opponent comes across as a dick that nobody really likes. The polls released today look good for Obama. But the GOP will do considerable fundraising over this, and voter suppression is in full swing in some key states. Moreover, the ruling is likely to galvanize the Right through the summer and into the fall. It could even have a negative impact on local elections.
And here are some more conservatives responses. My favorite is the threat to move to Canada.
Second addendum: Here’s more on the CNN/Fox slop-fest, which apparently the President heard first.
By the way, the four conservatives against the law – they would have repealed everything – all 900 pages, for the lack of a severability clause.


45 comments
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June 28, 2012 at 9:06 am
Fred Mangels
Looks to me like this means there’s nothing the government can’t force you to do now.
June 28, 2012 at 9:14 am
scott g
Fred, I mean this in the nicest possible way, but can you freaking read? If you understand what CJ Marshall did in Marbury v Madison, you’ll see that what Roberts did in affirming the constitutionality of the ACA as an expression of Congress’ power to tax — while agreeing with the GOP ultras that Congress has no power to mandate — actually creates a whole new category of things Congress cannot do that did not exist four hours ago. Until the SCOTUS is not run by the far right, we’re going to see lots of things they don’t like tossed in that new hole.
June 28, 2012 at 9:22 am
Eric Kirk
It’s true, although I don’t know what’s on that list. Congress hasn’t passed a whole lot that directly prohibits individuals since the Civil Rights Act and some of the environmental acts. But they usually mandate by requiring that states regulate individual activity, the enforcement mechanism being federal funding that the states can opt out of. Sometimes they do, but to refuse federal money can present political problems, even in red states.
June 28, 2012 at 9:49 am
tra
About the best I can say about this decision is that I’m cautiously optimistic that it will help more people than it hurts. But at the same time I am concerned that it may hurt quite a few. Buried deep down in the coverage of this ruling is the fact that the Court ruled that the federal government cannot make the states expand Medicaid eligibility, as the law attempted to do.
So the health insurance industry has got to be pretty happy with the decision: All Americans are going to be required, by Federal law, to purchase their overpriced, shoddy products, and (at least in Red States that reject the Medicaid expansion) the private insurance industry won’t even have to worry about losing any potential customers to Medicaid.
Don’t get me wrong, I fully realize that lots of people are going to benefit from the requirement that companies cover people even if they have pre-existing conditions. And hopefully the insurance exchanges, and some of the other provisions, will be helpful too. But for people who remain uninsured not by choice, but because they simply cannot afford the premiums, they will now (starting in 2014) have to shoulder the additional burden of paying a fine…while still remaining uninsured.
So this law, and this decision, is going to be great for the insurance companies, and great for people with preexisting conditions — well, at least those who can afford to pay health insurance premiums. But it looks like it’s going to suck for working poor people who will end up having to pay the fine for not complying with the mandate…and will still have no coverage.
This is the predictable result of designing a health care reform package that was designed, first and foremost, to prop up and force people to participate in a failed model of for-profit health insurance. But since it will only hurt the working poor, and not some important group like for-profit health insurance companies and their executives and stock-holders, I guess that’s no big deal — the working poor are used to getting screwed, and have little political power and influence in Washington, so why worry about them…right?
June 28, 2012 at 9:58 am
Eric Kirk
TRA – there’s much more in the law which could rein in premium amounts, including the expansion of competition through the exchanges and the mandate that 80 percent of premiums be dedicated to actual health care. But most importantly, it completely restructures the whole concept of health care in this country. It will in fact ulimately result in a single payer system, and this is why some on the right are freaking out.
June 28, 2012 at 10:11 am
tra
“It will in fact ulimately result in a single payer system.”
Well I hope you’re right. Could you explain why/how that will happen?
Because to me it seems more likely that this law will extend the life of the private, for-profit health insurance industry, by mandating tens of millions of new customers do business with them, and by paying billions in federal tax dollars directly to the for-profit health insurance industry, in the form of the subsidies that are supposed to help middle-class and lower-middle class people pay the premiums that they are now mandated to pay.
I don’t doubt that the for-profit model will collapse eventually someday, but it seems like this law will probably forestall that day, rather than hasten it.
So what am I missing here? This is not a sarcastic question — I don’t claim to be an expert on this, and I really would like to believe that you’re right about this law hastening the adoption of some kind of single-payer / Medicare-for-All system. So, please give me some reason for hope!
Thanks,
– tra
June 28, 2012 at 10:53 am
Eric Kirk
Because there will be large numbers of people who can’t afford to pay the premiums, and eventually some sort of public option will be passed in order to enable more people to be able to comply with the law. Because private insurance cannot compete with a public plan, they will lose ground. Or find a way to compete, which is fine with me if they can offer a better service. I don’t think they can.
June 28, 2012 at 11:01 am
Dave Kirby
I think the court decision will actually encourage people to take their first look at the provisions of the act. Up til now we have been inundated with B.S. sound bites concerning the contents. From what I can see so far there’s not a lot of difference between this and the social security medicare deduction. That may be a simplification but Obamacare isnt that different and is certainly better than Bush’s Medicare drug scam.
June 28, 2012 at 11:02 am
Mitch
I’ve looked at some excerpts of Scalia’s dissent, and I’ve got to say that his response to the Obama/Roberts argument that the penalty can be construed as a tax is really interesting. I can’t immediately disagree with Scalia, which is a distasteful thing to have to say.
Eric, I really hope you are right that this ends at single-payer universal health care. I have less faith than you that the existence of “large numbers of people who can’t afford to pay the premiums” will be enough of a concern to win the needed votes in today’s Citizens United houses of Congress.
June 28, 2012 at 11:04 am
Eric Kirk
Oh, it’ll probably be ten years down the road. Nothing productive will pass through this crazy Congress.
June 28, 2012 at 11:09 am
Mitch
What makes Congress better in ten years, if Citizens United remains in place? Or are you anticipating revolution?
June 28, 2012 at 11:16 am
Joe Blow
Some say all the State need to do is opt out and the whole thing will collapse in on itself -dry up and die.
June 28, 2012 at 11:41 am
Anonymous
As will our health care system, Joe.
June 28, 2012 at 11:48 am
tra
“Because there will be large numbers of people who can’t afford to pay the premiums, and eventually some sort of public option will be passed in order to enable more people to be able to comply with the law.
Well there are at least two other possibilities for how Congress will respond to that situation:
(1) They increase the premium subsidies, sending many more billions of Federal dollars down the for-profit health insurance rat-hole, or
(2) They just leave the working poor twisting in the wind, still uninsured, and now further impoverished with an annual fine/penalty/tax (whatever you want to call it).
Sadly, I think we’ll be dealing with some combination of (1) and (2) — probably mostly (2) — for many, many years to come.
If Obamacare does turn out to be fairly successful in increasing coverage for the middle class, this may well end up reducing, rather than increasing, the political will to take any further steps.
With the middle-class placated, and the insurance industry satisfied, the path of least resistance may be to just leave millions of working-poor Americans both uninsured and paying the fine.
June 28, 2012 at 12:40 pm
Anonymous
>>I think the court decision will actually encourage people to take their first look at the provisions of the act. Up til now we have been inundated with B.S. sound bites concerning the contents.<<
Maybe people will also take this opportunity to read our General Plan Update, and get past all the BS sound bites we have been inundated with from Estelle/HumCPR and Bonnie/CLMP concerning the contents.
It is a really good General Plan, with a lot of protections for our impaired watersheds.
June 28, 2012 at 4:29 pm
Joel Mielke
Insurance companies should be very happy with this.
June 28, 2012 at 5:38 pm
Anonymous
I think the whole thing is intended to be confusing as fuck and the bottom line is everybody’s going to pay more either way. Costs up, compensation down…across the board. Business as usual. The federal government doesn’t want us to associate the healthcare fiasco with their other adventures in spending…or the education fiasco or the transportation fiasco etc. etc. I am not fooled.
June 28, 2012 at 9:04 pm
Eric Kirk
What makes Congress better in ten years, if Citizens United remains in place? Or are you anticipating revolution?
Nah. Anticipating the cyclical nature of politics.
June 28, 2012 at 9:53 pm
Eric Kirk
Andy Courtier ventured out of intentional living to politics briefly to comment on the importance of the events.
http://adifferentkindofluxury.blogspot.com/2012/06/with-real-health-assurance-there-is.html
June 29, 2012 at 6:15 am
Anonymous
Romney’s claim that he will repeal “Obamacare” on day one is another piece of evidence why CEO’s are not suited to be president. As CEO he can hand down decrees on company policies, but as president he is bound by the constitution and its separation of powers. He is either severely confused about the powers of the president or lying about repealing it.
June 29, 2012 at 7:32 am
Twigs
Insurance companies will take the cream of the crop and create very high end services. That is what for profit companies do and that is what managers will do to keep their big pay rolling in. If an insurance company can take a big enough share of the low income folks and pool them into a profitable market then we will see premiums fall. But those have to be healthy poor people. So the most likely scenario is that a lot of insurance companies are about to bite the dust. But watch the premiums for other services insurance companies hold you captive for rise in the meantime. It will also be covering everyone on this thread if, “god-forbid”, you lose your prime spot in society as someone with health insurance and suddenly find yourself in need of care without enough money or any money to cover it. Of course we all know it couldn’t possibly happen to you… but.
The tax part of it comes from the idea that it is forcing people who are healthy and wealthy who would forgo insurance to enter the pool. The Supreme Court went this route possibly to avoid upholding the commerce argument which would have strengthened Federal power over State’s Rights, if I’ve got it right. That is something S. Hum should be very happy about considering the battle over medical marijuana.
June 29, 2012 at 8:20 am
Eric Kirk
Colbert and Stewart had some fun with CNN and Fox.
http://tpmdc.talkingpointsmemo.com/2012/06/colbert-cable-news-supreme-court.php?ref=fpblg
http://tpmdc.talkingpointsmemo.com/2012/06/jon-stewart-cnn-supreme-court.php?ref=fpblg
June 29, 2012 at 9:38 am
HUUFC
Stop with the Citizen’s United baloney, Obama will raise one billion dollars for hiself.
June 29, 2012 at 9:57 am
Anonymous
Of all the media coverage, I have not once seen or heard a genuinely simple break down, because it’s not intended to be comprehensible in those terms. The viral youtube video supposedly explaining it in layman’s terms is anything but. The whole thing is a ruse, and if you humor the idea that it’s a ruse, it becomes obvious just how easy it’s been to keep the ruse going.
“What a broken leg will cost you today, what a broken leg will cost you tomorrow with and without the new mandates…broken down by income.”
“What your prescriptions cost you today, what your prescriptions will cost you tomorrow with and without the new mandates…broken down by income.”
“The cost of having a baby today, the cost of having a baby tomorrow with and without the new mandates…broken down by income.”
etc. The whole thing is nonsense. Everybody’s costs are going up…patient, doctor, medical supplier…all will pass the buck, people with the least money will have to carry even more weight as usual.
June 29, 2012 at 10:55 am
tra
Compared to a single-payer system, Obamacare is certainly bound to be a less effective, less efficient, and more complicated, convoluted, and fractured way of trying to achieve greater coverage for more people, at a more affordable price.
But by the same token, Obamacare may in fact be a big improvement compared to our current , unwieldy, complicated, convoluted, fractured and extremely inefficient and ineffective so-called “system,” under which more and more people are finding themselves unable to get any coverage, and many others are paying ridiculous sums for lousy coverage.
Despite its somewhat Rube Goldbergesque architecture, Obamacare does have a lot of important benefits contained within it — people with pre-existing conditions can get coverage, people can’t have their coverage taken away when they get sick, etc. Hopefully the health care exchanges will turn out to be useful, and the expansion of Medicaid and the provision for subsidies for lower-income folks will be funded well enough that most working poor people will actually be able to get coverage, rather than have to pay the tax penalty while remaining without coverage. If all goes well, I can see how it could end up working out fairly well for most people. I can also see numerous ways it could fall apart, but I don’t think it’s fatally flawed in the sense that it’s sure to fall apart.
I’m not at all happy that we’re going to be shoving federal funds, in the form of subsidies, to for-profit insurance companies, but that was the grand political bargain that was struck — the private insurance companies get mandated customers and government subsidies, government gets increased power to set the underlying rules for what kind of plans can be issued, what kind of factors can be used to determine premiums, and how much of each premium dollar must be spent on actual medical care vs. administration and profit, and so on.
I think the bottom line is that even a rather inefficient system like the one created through Obamacare, may still turn out to be a whole lot better than the extremely inefficient, highly dysfunctional, rapidly failing mess of a system, which is what we have now.
At any rate, the battle is certainly not over…in some ways it is just beginning. Now that there is, in fact, some kind of real federal health insurance “system,” we can expect attempts from all kinds of folks, to change it in all sorts of ways, some good, some bad, and some ugly. What happens from here forward will probably prove to be just as important to the success or failure of this initiative as what has taken place up to this date.
June 29, 2012 at 11:06 am
Eric Kirk
The battle is certainly not over. I hadn’t considered this, but as the penalty has been deemed a “tax increase,” it may be that it can be repealed with a simple 51 vote majority in the Senate, and there are a few Democrats facing tough races in swing states.
June 29, 2012 at 11:42 am
tra
Of course if Obama wins the presidential race, the Republicans (and any Democrats who side with them) would have to have a veto-proof majority to successfully repeal the mandate.
If they do succeed in repealing the mandate, that could be a problem for the overall system. But if the mandate is maintained, while at the same time funding for the low-income subsidies is slashed, or totally eliminated, that could leave the working poor in a real bind.
To me, the mandate is only (grudgingly) acceptable if there are generous enough subsidies to make sure most working people can actually afford coverage.
June 29, 2012 at 12:17 pm
Sonia Baur, M.D.
I agree with tra. On the whole, at least it gets us on the way toward universal healthcare (healthcare as a right because you exist). I understand Robert’s decision (he comprehends that the insurance companies are going to get 30 million new customers).
From personal experience I know that the Medicare (parts A & B) insurance that I have had for 8 yrs. is a wonderful insurance program to cover healthcare costs.
Healthcare itself is another matter. When medical people are paid per visit, procedure or treatment, their financial advisers are encouraging them to do more visits, procedures or tests. Actually we should only be concerned with the outcome, in terms of both social or financial rewards.
I credit the long survival of my parents, who are still “on their feet” to the Kaiser Healthcare Insurance system. Just because you can pay for high priced brand-name or exotic medicine doesn’t mean that it is the best for your health.
June 29, 2012 at 12:29 pm
Sonia Baur, M.D.
I agree with tra. On the whole, at least it gets us on the way toward universal healthcare (healthcare as a right because you exist). I understand Robert’s decision (he comprehends that the insurance companies are going to get 30 million new customers).
From personal experience I know that the Medicare (parts A & B) insurance that I have had for 8 yrs. is a wonderful insurance program to cover healthcare costs.
Healthcare itself is another matter. When medical people are paid per visit, procedure or treatment, their financial advisers are encouraging them to do more visits, procedures or tests. Actually we should only be concerned with the outcome, in terms of BOTH social or financial rewards.
I credit the long survival of my parents, who are still “on their feet” to the Kaiser Healthcare Insurance system. Just because you can pay for high priced brand-name or exotic medicine doesn’t mean that it is the best for your health.
June 29, 2012 at 1:14 pm
Ernie Branscomb
Whoopee, now we have healthcare. According to to Green Change “Experts estimate that a staggering 98,000 people die from preventable medical errors each year. More Americans die each month of preventable medical injuries than died in the terrorist attacks of Sept. 11, 2001.
Medical care is the number ONE cause of accidental death in the United States.
Now the middle class afford to die from medical care just like the poor and the wealthy.
June 29, 2012 at 1:18 pm
Eric Kirk
I received an email from someone criticizing the “Obamacare” title. She argues that Romney came up with the plan first and so he deserves the name.
I expect that Obama will be hammering on that point over the next few months. He should invoke the Bush line against Kerry – did he vote for it before or after he supported it?
June 29, 2012 at 2:05 pm
Low Fi
I tried commenting on, Heraldo’s site regarding this but everytime i post…tra deletes me . He’s doing his hardest to hide his identity Of course he ” didn’t know he could delete posts ” . L.O.L.
June 29, 2012 at 2:07 pm
Low Fi
tra doesn’t know he can delete posts . Remember that one, tra ? Hee He he
June 29, 2012 at 3:57 pm
Mitch
Eric 1:18,
Well, TPM has an item about Rick Perry (remember him) stumbling and referring to Obamneycare just recently. That may tell you what the people he talks with think.
June 29, 2012 at 3:59 pm
Eric Kirk
I don’t think Perry will be Romeny’s VP candidate.
June 29, 2012 at 5:37 pm
tra
I have never been able to delete comments on this site or Heraldo’s site, and I still can’t. Your paranoid delusions are continuing to get the best of you. It’s kind of sad.
If you’re making comments to this site that don’t show up right away, or don’t show up at all, perhaps it’s because you’re using so many different screen-names (while, ironically, you falsely accuse me of doing so). I think on Heraldo’s site comments made under new names show up right away. But I think Eric uses a different setting, where the first time you post your comment goes into “moderation” until he notices it and approves it. But I think as long as you’re using the same screen-name, and provided an e-mail address, and you’ve posted comments before, they will generally go right through without moderation.
So, pick one screen name and one e-mail address, and stick to only posting under that name/address, and I’ll bet your comments will sail right through. That’s what I do, and rarely find that one of my comments goes to moderation (I think one other reason they can end up in moderation is if you post too many links in one comment).
By the way, for those keeping track, I’ve so far been accused of being Mitch, Heraldo, Tom Grover, Estelle Fennell, and Charlie Custer (as well as a few others I can’t recall right now).
June 30, 2012 at 11:54 am
Low Fi
Don’t feel bad, Heraldo…er, tra, i have been accused of being, Arnold Swarzenegger, Jerry Droz,Sylvester Stallone, Albert Einstein and a host of others . Anyways, stick to one name & one email address and posting only under that name and then it or you won’t be viewed as having names .
June 30, 2012 at 12:01 pm
Low Fi
i meant…multiple names . Another thing, try not to post at the same time as, Heraldo, Mitch, Tom, Estelle, Charlie and anonymous & don’t post using identical vocabulary . Just to let you know i don’t believe your all these people .
June 30, 2012 at 12:27 pm
Eric Kirk
John Cole isn’t afraid of the great conservative revival.
http://www.balloon-juice.com/2012/06/29/you-just-keep-on-pushing-my-love-over-the-borderline/
They are now in disarray. Half of them feel betrayed by Roberts, the other half feel betrayed by life in general. The message for liberals should not be to move on from this victory, but to press the advantage. Obviously, Obama wants to move on and talk about jobs and the economy, but for those of us in the rank and file, this decision is an unlimited ammo dump. Keep pressing the advantage, keep talking about the benefits that consumers will experience under the law, keep mocking the “socialism” and “unconstitutional” claims, and keep moving forward. Remember, this is easy turf. A couple years ago Republicans were arguing that crushing a child’s testicles was constitutional. Now they want to argue that denying your child health care when he has leukemia is constitutional. Go in for the fucking kill, liberals.
June 30, 2012 at 12:29 pm
tra
Well, you may be dim-witted and a bit paranoid, but at least you’re persistent. I guess that counts for something.
June 30, 2012 at 12:31 pm
tra
Just to be clear, my 12:29 comment was in response to “Low Fi.”
June 30, 2012 at 12:34 pm
Eric Kirk
Whew!
July 1, 2012 at 1:26 pm
Read the federalist papers
How stupid can you LIEberals get? Maybe when Obummer is out of office we will pass a law that forces all of you to buy Hummers and call it a tax!
You do not even realize that you just started a civil war!
July 1, 2012 at 1:41 pm
Eric Kirk
Some interesting notes in the Sunday morning yack show fallout.
Chuck Schumer, while happy about the results, says that Justice Roberts broke his word on the Commerce Clause ruling.
http://tpmdc.talkingpointsmemo.com/2012/07/chuck-schumer-john-roberts-broke-promise-commerce-clause-health-care-wickard-filburn-gonzales-raich.php?ref=fpb
The Republican leadership is dodging questions about whether Romneycare was a tax.
http://tpmdc.talkingpointsmemo.com/2012/07/romney-complicates-gop-push-to-label-obamacare-a-tax.php
Mitch McConnell says that the 30 million lacking coverage are “not the issue.”
http://tpmdc.talkingpointsmemo.com/2012/07/mcconnell-coverage-for-30-million-uninsured-not-the-issue.php?ref=fpb
I have no idea why it would work this way, but support for the law is actually up since the ruling came down.
http://livewire.talkingpointsmemo.com/entries/poll-support-for-obamacare-up-after-supreme-court?ref=fpb
CBS reports that Roberts went back and forth before settling on his position. He was under intense pressure from the conservative block apparently.
http://www.cbsnews.com/8301-3460_162-57464549/roberts-switched-views-to-uphold-health-care-law/
And some are wondering if Justice Roberts is the new Souter.
http://www.nydailynews.com/news/national/wrath-cons-chief-justice-john-roberts-bashed-traitor-casting-key-vote-uphold-health-care-law-article-1.1104064
July 1, 2012 at 2:15 pm
tra
And then there’s Paul Ryan, who says we should repeal Obamacare because it’s an insult to God Almighty.
http://livewire.talkingpointsmemo.com/entries/paul-ryan-bashes-obamacare-because-rights-come-from