The judicial judo of Obamacare

The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors' benefits was in the 1930's. In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments.

Justice Ginsburg at 2.

In a surprising judgment in National Federation of Independent Business v Sibelius, Secretary of Health and Human Services, delivered on 28 June 2012, the Supreme Court came within a wet liberal's whisker of destroying perhaps the key decision of Congress in President Obama's first term. In a complex and divergent decision, the Court fundamentally upheld the constitutionality of the Obama Administration's important Patient Protection and Affordable Care Act 2010(PPACA).

Opinions of the Court were variously divided and surprising alliances were formed including the usually conservative Chief Justice Roberts lining up with the liberal bloc of the Court composed of Justices Ginsburg, Breyer, Sotomayor, and Kagan to save the core of the legislation. The other three arch conservatives, Justices Scalia, Thomas and Alito, remained true to type, with the occasional swing man, Justice Kennedy, remaining this time firmly in the far-right fold.

Background

The PPACA represents the Obama Administration's comprehensive overhaul of the American health care system. It was enacted by Congress in 2010 to decrease the overall cost of health care and to increase the number of Americans with health insurance coverage. One of the key provisions, central to this case, is the individual mandate which enforces universal health insurance coverage (s 5000A). The mandate requires most Americans to maintain "minimum essential" coverage or be forced to make a "shared responsibility payment" to the Internal Revenue Service (IRS) along with their taxes as a "penalty" for non-compliance. The mandate is essential to the Act because, the PPACA does away with an insurer's ability to factor an individual's health characteristics into their insurance premium, making near universal coverage essential.

The other notable provision considered in the case, was the Medicaid expansion under section 1396c. The PPACA expanded the scope of the Medicaid program from federally funding States to assist certain specified in need categories of people to requiring and funding states to provide assistance to all adults whose incomes do not exceed 133% of the federally determined poverty level.

Chief Justice Roberts & the Majority

Chief Justice Roberts delivered the lead judgment of the Court. Roberts and the four conservatives, Scalia, Kennedy, Thomas and Alito formed the majority in finding that the individual mandate was not supported by the commerce head of power in the Constitution, essentially, on the basis that inaction in failing to purchase health insurance could not be construed as a "commercial activity".

Justice Ginsburg strongly and persuasively dissented on this point and was joined by the other three liberal Justices, Breyer, Sotomayor and Kagan.

However, Chief Justice Roberts abandoned his conservative colleagues to join in agreement with Justices Ginsburg, Breyer, Sotomayor and Kagan to find that the mandate was supported by Congress's taxation power. This decision by the Chief Justice has caused an earthquake within conservative politics in the US.

On the Medicare question, a new larger majority formed. Only Justice Sotomayor stayed with Justice Ginsburg to support the proposition that it was permissible for Congress to threaten to withdraw all Medicaid funding to a state if that state did not accept the additional funding and the obligation to provide the additional coverage. The other seven justices, conservative and liberal, found that the terms of the Medicaid expansion were impermissibly coercive upon the States given them no effective choice whether to accept the monies offered. Importantly, the four liberal Justices joined with the Chief Justice to hold that that the new Medicaid provisions could be severed and were not fatal to the validity of the rest of the PPACA.

The Joint Dissent

Conservative Justices Scalia, Thomas and Alito were joined by the occasional swing man, Justice Kennedy, in a judgment that would have effectively shredded the 900 page PPACA, deciding against the mandate on both the commerce and taxation point and finding the rest of the Act to be non-severable.

The Taxing Power Argument

The joint dissenters held that the individual mandate is neither a constitutional exercise of Congress' power under the Commerce Clause nor under the Tax and Spending Power. On the tax and spending power, the concern was not that Congress could not have achieved its objective under that head of power but the form in which Congress couched its words in a form which suggested a penalty.

The Commerce Clause Argument

The point on which the dissenters joined with the Chief Justice was in concurring that inaction in failing to purchase private health insurance could not be construed as a commercial activity able to be regulated under the commerce power. This concurrence of opinion, despite being of little effect in this case, maintains the need to fear the conservatives on the Supreme Court. It would indicate the likelihood of more decisions in the future like the 2010 decision of Citizens United v Federal Election Commission whose unrealistic confusing the spending of large sums of money with the exercise of free speech tore apart a long consensus on regulating election spending in the United States and is currently ensuring that those large sums of money are doing their best to distort the electoral discussions now underway in the United States.

The four dissenting conservatives (in a majority with the Chief Justice on this point) ignored the reality of the market which was to be regulated and declared that, if regulation of inactivity were deemed Constitutional, the power of Congress would excessively extend to making "mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity" (at 3).

Justice Ruth Bader Ginsburg and Constitutional Common Sense

Justice Ginsburg, with the agreement of her liberal colleagues, expressed the common sense view of the commerce power about which one might have been forgiven for thinking all controversy had been removed. The "inaction" distinction of the five conservative justices brings back memories of the conservative majorities which cut a swathe through the popular policies of the New Deal in the 1930s and brought President Roosevelt to the brink of embarking upon stacking of the Court.

Justice Ginsburg pointed out that the approach taken by Congress was one that preserved active involvement of private enterprise and the States. Congress could have legislated for a tax that allowed the government to completely take over the role of providing and funding healthcare.

Justice Ginsberg also set out the significance of the free riding of healthy, well off young people who would avoid medical insurance until their later years thereby placing a burden on the rest of the community by failing to make a contribution. Because of its free riding nature and its extraordinary effect on the health and health insurance markets, Justice Ginsburg pointed out that those refusals to buy medical insurance were as much part of the market as the subsequent actions of the same people to buy both insurance and health care when it suited them.

Justice Ginsberg referred to the Chief Justice's "narrow" reading of the Commerce clause as "rigid" (at 2), "crabbed" (at 2) and "disserving future courts" (at 35) and accused him of employing "specious logic" in accepting the "broccoli argument" (which her Honor refers to as the "broccoli horrible" at 30). The broccoli argument concerned an analogy that taking a realistic view of a refusal to buy health insurance until middle age was the same as penalizing a shopper for refusing to buy "healthy" broccoli at the supermarket.

In a nice piece of ideological prose, Justice Ginsberg accused Chief Justice Roberts of using the commerce clause against the interests "of those who labor to sustain it", that is, the bulk of the populous, working class Americans.

Waning Popular Approval of the Court

As a result of his switch stance and novel argument Roberts has been pilloried by the right and fallen out of favour with conservatives. But it is the conservatives that have given the Court a bad name in recent times, with public approval at an all-time low. As the New York Times reported:

More than half of Americans said the decision in the health care case was based mainly on the justices' personal or political views. Only about 3 in 10 of them said the decision in the case was based mainly on legal analysis.

The legitimacy and integrity of the Court has been called into question in recent history. As well as the decision in the already mentionedCitizens United decision,the court has been perceived as acting in a partisan manner in the Bush v Goredecision. This has led some to speculate that getting back in touch with the people was the motivation for the Chief Justice to side with the liberals upholding the key aspects of Obamacare.

Conclusion

The real question for the future is whether this decision signals a changing attitude and a new majority on the Supreme Court or whether it will be back to normalcy with only Justice Kennedy's occasional liberal moments to save the United States and the rest of the world from the four extreme conservatives on the court? The world can ill afford continuing conservative attacks on the sensible operation of democratic processes in the United States.