And as usual, the pundits were served a big plate of crow. It's instructive to remember how nearly the entire national media reacted at the conclusion of the oral arguments on health reform. CNN's "legal expert" Jeffrey Toobin couldn't come up with wrecking metaphors fast enough. The entire punditry's 'wisdom', if I might not-so-humbly point out, was debunked right here on TPV. So yes, I am going to proudly say it again: we told you so!
I haven't read the full decision in detail yet; that's my project while I'm on the next flight leaving Chicago. When I complete the reading, expect a more detailed piece on the actual decision. But I want to note some basics: the bottom line of the decision, the utter impotency of our media "analysts", and what this will mean going forward.
Judging by reporting from the Washington Post, the majority on the Court - made this time by having the four liberal justices joined by Chief Justice Roberts rather than the usual "swing" vote of Justice Kennedy, held the following:
- The individual responsibility provision is Constitutional under Congress' plenary power to tax. The court essentially said that the fine, the enforcement mechanism for the so-called mandate, amounts to a tax, and Congress clearly has such power.
- In doing so, the Court also upheld the key regulations enacted by Congress on insurance companies, namely the minimum coverage provision (one more time for the Left's critics of Obamacare, under it, insurance companies will not be able to sell overpriced junk insurance).
- In a different majority, also joined by Roberts, the court less consequentially modified the Medicaid expansion by striking the provision that could threaten existing funding to states should they choose not to join the expanded program.
The Washington Post article also makes a mistake in stating that the Administration did not argue for the individual responsibility provision under Congress' power to tax but as a use of its power to regulate commerce. While it is true that the Administration's primary argument - and Congress' primary assertion of power to levy this provision - was based on the commerce clause, General Verrilli made it crystal clear to the Court during oral arguments that while Congress did not expressly claim taxing powers to enact this provision, if the court found that it was justified by the taxing power, then it must uphold it. In other words, he argued that the court must uphold the provision if it could be justified under any of Congress' Constitutional powers, even if it isn't one Congress expressly claimed in enacting that provision. Here's how I explained it in my article about the oral arguments (with link to full arguments):
The penalty for those who can afford but choose not to buy insurance, the Administration argued, arose from Congress' power to tax. Although it wasn't termed a tax, Solicitor General Verrilli said, that it is in the Internal Revenue Code, collected by the IRS and on your tax return, compel the court to accept that the power to levy that penalty indeed comes from Congress' power to tax, or that it at least could, and if it could, the Court must defer to Congress.Seems to me that's exactly what the Court did.
The Roberts Factor that the Media "Analysts" Never Considered
As I said, the makeup of the majority upholding the mandate surprised nearly everyone. It surprised me too, but for a different reason: that Kennedy wasn't part of this majority and chose instead to write the dissenting opinion. What the media never, ever focused on was Chief Justice Roberts' role. When I wrote my analysis of the oral arguments and in other placees, however, I noted a few things about Justice Roberts with regards to this case:
- First, Roberts was receptive to the argument on the individual responsibility provision both as a tax and as a necessary and proper way to regulate how to pay for health care.
- Roberts did not want his court's legacy to be one that threw out the most significant expansion of the social safety net in generations duly enacted by a Congress and a president.
- Roberts is a corporate attorney, first and foremost. He was not going to throw out the law that brings insurance companies tens of millions of new customers.
Because the Jeffrey Toobins of the world are too concerned about "swing votes" - namely, Justice Kennedy. They read some tealeaves that told them that Kennedy was leaning against it (turns out, they were right), and suddenly everything was a train wreck and a plain wreck. In fact, these "pundits" were so confident in their prediction that they literally put up "Dewey Defeats Truman" style headlines:
This decision is not just a vindication for those of us who stuck by health reform from the beginning, despite withering attacks from the Left and the Right. This decision is not just a vindication of President Obama who got health reform done after presidents for nearly a century talked about it. It is not just a vindication for activist, pro-people government. It is not just a vindication for change we can believe in.
This decision is a lifeline to 33 million people when the ACA fully kicks i,. This decision means children who have pre-existing conditions right now cannot be denied health insurance (and that will be the case for everyone beginning in 2014). It means young adults can still stay on their parents' plan until age 26. It means insurance companies are no longer allowed to set arbitrary limits on the value of a life. It means insurance companies are no longer allowed to drop you when you get sick.
It means that beginning in 2014, the largest middle class tax credits (refundable when needed) ever for health insurance will become available. It means millions of people at or near poverty will be able to be covered by Medicaid - the largest expansion of this actual public health insurance program. It means seniors will get prescription drug coverage without the infamous donut hole. It means that for the first time ever, Americans will no longer live one injury or one illness away from catastrophe. It means that annual check-ups and other preventive care will remain copay-free.
Going forward, this is a huge win for President Obama, but it's a bigger win for the American people. It is a bigger win for the governing philosophy that says that when we have power, we must use it to do good, even if that results in the loss of power in the short term. Don't forget that Democrats in Congress bit the bullet and the President put his presidency on the line to get this done. They did it because they believe in an America where mothers no longer have to choose between paying rent and taking their kid to the doctor. They did it because they believe in change. This is change. This is amazing.
Let me end with the President's words:
Thank you for your leadership, Mr. President. It is now our job to give you another four years in office.