The Obamacare Ruling: Why Justice Roberts Went Rogue

The Obamacare Ruling: Why Justice Roberts Went Rogue


Expecting the U.S. Supreme Court, stacked 5-4 in favor of conservative Justices, to use their majority to repeal the Patient Protection and Affordable Care Act (otherwise known as Obamacare), we found they ended up doing the exact opposite.

My pre-ruling analysis, although not totally right, in fact hinted to the reason Chief Justice Roberts may have decided to pull off some legal gymnastics by joining the more liberal leaning side of the bench (Justice Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer) against the conservative wing (Antonin Scalia, Samuel Alito, Clarence Thomas, and Anthony Kennedy).

First, quick recap on what the law does.

1. It expands the number of people who could qualify for Medicaid beyond the 60 million currently allowed to have it: low-income children with health issues, and their caregivers, some elderly and Social Security Insurance (SSI) beneficiaries.

2.  It provides health benefits (most notably, stopping insurers from imposing lifetime limits, denying care to children with preexisting conditions, permitting kids 18-26 to stay on their parents’ private health insurance plan and requiring insurance companies to offer a series of preventative screenings and tests for free.)

To fund that expansion, the feds require states to contribute or forfeit some of their Medicaid funding. Currently, the money funding Medicaid comes from payroll taxes and is administered through states and the federal government.

To help pay for the expanded care, free screenings and preventative treatment — as the Act requires — all individuals will have to purchase insurance beginning in 2014 or pay the government a $325 penalty.

Hold on to this word “penalty” because it comes into play BIG in this ruling.

Now back to the ruling.

Justice Roberts, perhaps very aware his Court’s reputation was at stake and that their esteem had been diminishing since the Gore v. Bush decision of 2000, did not want his legacy – The Roberts Court – to be known as a partisan court. He did not want to be the leader of the Supreme Court when it became known as just another cog in the political machine.

The nine justices are selected by Presidents for life and are supposed to be neutral, nonpartisan, above the fray and above politics. They should only rule according to the legal precedent, existing case law and legislation without bringing their own political leanings into their decisions.  A recent New York Times report showed the Supreme Court’s approval rating at 44 percent.  Other statistics show many more Americans with each ruling were beginning to doubt the impartiality of that once very highly regarded body.

Roberts could see the value of his court dropping exponentially and he perhaps used the Obamacare ruling to plug a hole in a sinking ship.  The man is no dummy. He led a very clean and straight and narrow life to the bench and is has a long life ahead of him in the bench.  He knew he needed to harness and reign in the runaway train.

But, to do that, he first had to get over a procedural roadblock.

During oral arguments this Spring, U.S. Solicitor General Donald Verilli argued that even though the language of that actual law calls the $325 fee a penalty – since the Internal Revenue Service would be in charge of assessing that money on people’s annual taxes – it is technically a tax.  If the court would have agreed, another existing law, called the Anti-Injunction Act, would have stopped the court from even getting to the meat and potatoes of the case and from deciding whether the law is in fact, constitutional.  That law prohibits taxpayers for suing a tax until after they pay it.

So to surmount that obstacle, Justice Roberts said the Court will go by the label in the text of the law — which is a penalty.  Then they would move forward with deciding whether the law is valid under the Constitution.

However, interestingly enough, while it needed to call the $325 fee a penalty in that scenario it ultimately upheld it by calling it a tax. And the United States Constitution empowers Congress to tax citizens.

To reach this interesting conclusion, Roberts had to do some twisting and turning in his legal analysis. Being a student of the Federalist papers, he used lots of language from the Constitution and quoted the framers often in the 59 page opinion he wrote on behalf of the other 4 justices who sided with him.  So for those conservatives and Republicans accusing him of turning his back on the Constitution, read the opinion first before talking. He relied on lots of language from the US Constitution to strike the first two justifications the United States tried to make for the mandate.

He did not let the law stand based on the federal government’s authority to regulate commerce in between states because he was not comfortable forcing the public to do something it wasn’t already doing. In a one page dissent, Justice Thomas drove the point that it would be akin to taxing inactivity. Permitting the law to stand based on that authority would open a Pandora box and set up a precedent where the federal government could later come in and force the citizens to purchase many other things.

Before getting to the taxing authority, Roberts also quickly dismissed the government’s second argument that the law was constitutional under the federal government’s Necessary and Proper power.

He concluded that a tax doesn’t make anyone do anything. You don’t have to get insurance if you don’t want it; but if you don’t you will get taxed so Americans are making the choice themselves to pay the tax if they don’t get insurance.

As to the medical exchanges, the majority of justices sided with the states who argued that it was unfair and against the spending power of the federal government to force them to participate in Obamacare via an exchange program or sacrifice their existing Medicaid funding.  The court ultimately said that while the feds could apply it to future funding, it was a violation of federalism to withhold existing money for states not wanting to participate and pay a portion of the cost to expand Medicaid.  Federalism relates to the balance of power between the different levels of government, meaning the framers didn’t want the feds to have too much controlling power over the states.

It seems confusing and complex and really, if he wanted, Roberts could easily have sided with the conservative members who spent the bulk of their joint dissenting opinion explaining why the fee is not a tax but a penalty.

But for the sake of his legacy he, instead, opted to go gangsta on them and went the other way.

And so it was written. History has been made.