The verdict is in, and it's a major disappointment to Obamacare opponents. CNN initially reported that the individual mandate had been struck down under the Commerce Clause, then corrected its reporting: Obamacare has been upheld as a tax. It looks like Obamacare's Medicaid expansion has been limited, but not struck down. Chief Justice Roberts has reportedly joined the Left flank of the Court, authoring the decision (the key bits are on pages 31, 32).
Confirmed: The decision was 5-4, with Justices Scalia, Kennedy, Thomas and Alito dissenting. According to SCOTUS blog, the four dissenters were prepared to strike down the entire law. Wow. Chief Justice Roberts saved Obamacare, plain and simple. Very few people envisioned that scenario. The paper thin silver lining for conservatives is that Roberts limited the seemingly boundless Commerce Clause by writing that it does not justify Obamacare's central pillar. Instead, he ruled, it's legitimate as a tax - precisely what President Obama had explicitly argued was not the case in selling the law to the public. Everything in this law -- from the mandate, to the broad expansion of Medicaid, to all of the rules and regulations -- has been declared Consitutional by the High Court. Here's the inevitable 2009 flashback of Obama telling a nationally televised audience that Obamacare is absolutely not a tax. SCOTUS just disagreed, to the president's benefit:
The only way this deeply unpopular law goes away is through legislative repeal. That only happens, realistically, if President Obama loses in the fall, and Republicans seize the Senate while retaining the House. Even then it will be an uphill fight. Don't buy anyone's spin that this is somehow "bad news" for Obama. Yes, it will fire up conservatives even more and hand Mitt Romney a sledgehammer issue ("middle class tax hike," anyone?), but the president's signature accomplishment has survived. It will be hard -- but not impossible -- to uproot. The "plain English" upshot, via SCOTUSblog:
In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding.
Remember that "paper thin silver lining" I mentioned earlier? Not so fast, says Phil Klein:
RT @PhilipaKlein: Upholding mandate on taxing power grounds grants Congress even more expansive power than if it were upheld on CC grounds.
On the other hand, a top SCOTUS blog analyst dissents from Klein's view: "The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress's authority to pass social welfare laws. Using the tax code -- especially in the current political environment -- to promote social welfare is going to be a very chancy proposition." The four dissenting justices are ripping this decision as "a vast judicial overreaching." Chief Justice Roberts, against whom Obama voted as a Senator, allied with Kagan, Breyer, Sotomayor and Ginsburg to affirm said overreach. Republican leaders are beginning to react, turning today's seismic decision into a rallying cry for full repeal. Sen. Mitch McConnell:
“Today’s decision makes one thing clear: Congress must act to repeal this misguided law. Obamacare has not only limited choices and increased health care costs for American families, it has made it harder for American businesses to hire. Today’s decision does nothing to diminish the fact that Obamacare’s mandates, tax hikes, and Medicare cuts should be repealed and replaced with common sense reforms that lower costs and that the American people actually want. It is my hope that with new leadership in the White House and Senate, we can enact these step-by-step solutions and prevent further damage from this terrible law.”
Let's circle back to the politics of this: Less than an hour after the ruling came down, Mitt Romney had already raised over $200,000 (and counting) online. House leadership has announced that it will hold another vote on full Obamacare repeal sometime on the week of July 9th. As I predicted, GOP officials are already referring to the law as "Obama's middle class tax." The public already detests this law, and a super majority will dislike the Court's ruling. The Republicans' message from now until election day will be, the only way we can rid ourselves of this middle class tax-hiking, patient hurting, rationing-centered, deficit-and-premiums-increasing pestilence is to toss Democrats out on their ears. Former Townhaller and current staffer for Sen. Jim DeMint, Amanda Carpenter, has it exactly right: "If Obamacare was presented as a tax, it would have never passed." Yup. Even with the Democrats' supermajority. This is why Obama and his team had to run around insisting that the law was not a tax. The backlash begins, via the RNC:
Freshman Sen. Mike Lee (a former SCOTUS clerk) offered this assessment of today's developments in a telephone interview with Townhall:
"[The decision is] not as bad as it may seem initially. This is a hollow and temporary victory. SCOTUS expressly concluded that the mandate falls outside of Congress' Commerce Clause authority. This only the 3rd time in 75 years that they've done that. They shoehorned it through as a tax, and the American people won't stand for that. The Court really messed up with that part of their decision -- it isn't a tax, it wasn't sold as a tax, it doesn't have the hallmarks of a tax. I respectfully but forcefully disagree with the opinion. Politically, we have to take this thing down. We're going to win. People are going to show up in droves in November."
Here's McConnell on the Senate floor, moments ago:
Stay tuned for much more as this story develops...
UPDATE - If you're pressed for time, read this handy adbridged version of Robert's decision. Also, check out this analysis of how the Court's Medicaid expansion decision (seven of the justices found it unconstitutional as written) could explode the deficit even further.