I did say this yesterday-that I didn't think the Robert's Court would strike down the individual mandate.
"My take is that the SJC is conservative-small c not only ideologically but temperamentally-and would rather not make laws from the bench. Yes they did do Bush-Gore but in that context arguably that was the more conservative choice-otherwise we could have faced a long drawn out legitimacy crisis."
"They know that Americans have never really forgiven that-I know I haven't-and that they are suspected as often being more ideological than judicial. If they strike down the mandate that would throw insurance companies into chaos-they probably would want to avoid that. But to overturn the whole law could start a real backlash against them."
"While they really struck down SB 1070 they left just enough so that supporters have a little something to hang their hats on. They did the thing that was least divisive. In this case letting the ACA stand is least divisive. After all the GOP will at least have it as an issue to flag in the campaign. If it's struck down this could be worse for the GOP. And many states even some Republican ones have already started setting up the exchanges. So if I'm right that they go conservative, ACA should stand."
What's interesting is that after writing the post I read Bush's Attorney General Alberto Gonzalez who totally nailed it. He argued that he knew Roberts-after all it's he who vetted him for Bush and as he understood his style he doubted Roberts would want to create a constitutional crisis. This was also shown in his votes against Arizona's SB 1070 on Monday.
What's more, Gonzales was right that Roberts would argue that the Mandate is a tax-which the government has the power to do.
"I spent a great deal of time vetting Justice Roberts in making my recommendation to President [George W.] Bush that he appoint Chief Justice Roberts to the court," Gonzales said on CNN. "One of the traits I most admired about him, and this is very consistent in his judicial decision making, is to decide decisions on the most narrow grounds possible, to not get to constitutional issues you don't have to in order to dispose of a dispute....So in that respect, I expect Justice Roberts to follow that approach in deciding this case."
"During oral arguments in March, the justices appointed a lawyer independent from the case to argue that a law known as the Anti-Injunction Act bars the court from blocking collection of a tax, like the penalty mechanism the law would use to encourage Americans to get insurance. The Anti-Injunction Act says a tax must be collected before it can be challenged in court."
"At oral argument, none of the justices seemed to think much of that idea, but Gonzales suggested it would be the most consistent with Roberts's judicial philosophy favoring something lawyers call "the doctrine of constitutional avoidance."
"That may mean, that he's going to be pushing the court to perhaps not make a decision on this case, wait until 2015, when the penalties on individual mandate come into play....Perhaps the chief justice is not going to go that way, but I wouldn't be surprised if he did," the former attorney general and one-time Texas Supreme Court justice told CNN.
Gonzalez's prediction was almost perfect. Chief Justice Roberts was the deciding vote-Kennedy went with the conservative opposition in the 5-4 vote-and while he didn't stay it till 2015 he did use the tax argument. While the four liberal Justices argue that it does not violate the Commerce Clause, Roberts says it does, however it's legitimate as a tax that Congress has the power to impose.
"The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”
"But “it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but (who) choose to go without health insurance. Such legislation is within Congress’s power to tax.”
"The law, Roberts wrote, “makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”
He said “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.”
Here we see that Gonzalez's take on Roberts' philosophy is right-that he avoids a constitutional crisis wherever possible:
"He said the Supreme Court precedent is that “every reasonable construction” of a law passed by Congress “must be resorted to, in order to save a statute from unconstitutionality.”
NBC's Pete Williams reported that Roberts reasoned that “there’s no real compulsion here” since those who do not pay the penalty for not having insurance can’t be sent to jail. “This is one of the scenarios that administration officials had considered that if the court did this they would consider it a big victory,” Williams said.
The states did get somethign of a victory in Medicaid payments:
"But in a major victory for the states who challenged the law, the court said that the Obama administration cannot coerce states to go along with the Medicaid insurance program for low-income people."
"The financial pressure which the federal government puts on the states in the expansion of Medicaid “is a gun to the head,” Roberts wrote.
“A State that opts out of the Affordable Care Act’s expansion in health care coverage thus stands to lose not merely ‘a relatively small percentage’ of its existing Medicaid funding, but all of it,” Roberts said.
Congress cannot “penalize States that choose not to participate in that new program by taking away their existing Medicaid funding,” Roberts said
Still in the context of what could have happened this is a big victory and I'm going to celebrate. Anthony Kennedy who is often the swing vote, went with the conservative minority:
"Justice Anthony Kennedy, usually the court's swing vote, dissented, reading from the bench that he and three conservative justices believe "the entire Act before us is invalid in its entirety." In a 65-page dissent, he and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dismissed Roberts' arguments, writing that there is a "mountain of evidence" that the mandate is not a tax. "To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it," they write.
Yeah well I can see why he's not impressed compared to that brilliant broccoli argument. Ladies don't go out alone after dark-or the boogie man will make you eat broccoli against your will
P.S. I'm celebrating-should I go out to eat again? I try not to do it every day but there's always a reason. Today the reason is I got to celebrate the crowning and coronation of ObamaCare as supreme law of the land.
P.S.S. I am vexed however by my spell check-it suddenly isn't working. I hate checking for spelling but now I got an extra job each post till I can figure out the problem. Anyone got any suggestions?
P.S.S. Can't wait to listen to Rush in 20 minutes.
HT: Morgan Warstler