Dear Judge Posner, Dahlia, and Emily,
What is most important today is not constitutional theory or presidential politics, but the enormous improvement in access to health care for millions of Americans, including increased access to preventive care such as mammograms and birth control, provisions allowing young people to stay on their parents' health insurance, provisions prohibiting insurance companies from turning down people who have pre-existing conditions or from increasing premiums to unaffordable levels for families who have a child born with a birth defect. Those are the most important winners today.
The Commerce Clause opinion looks pretty narrow. The chief justice basically just says that Congress can do many things, but it can’t create commerce out of nothing (i.e., compelling commerce is not regulating commerce). I don’t believe that is a reasonable characterization of the law, but no matter. His opinion seems limited to actual mandates, which (for obvious reasons) don’t come around very often (i.e., once, ever).
Importantly, there were not five votes for any Commerce Clause opinion. The chief justice wrote only for himself. No other justice joined his opinion. It may be that will limit the precedential effect of the Commerce Clause decision.
Nonetheless, this is now officially the Roberts Court. And Justice Kagan plans to work with him when possible, as demonstrated by her decision to join his Medicaid decision. She will have enormous influence. Both Roberts and Kagan are playing a game of decades, not short-term politics.
There will be much to say about all these opinions, but for now I want to note what the president and the solicitor general said about justifying this as a tax. Contrary to Justice Scalia’s statement at argument that the president had said it was not a tax, what the president actually rejected in the interview with George Stephanopoulos was the suggestion that it was a “tax increase.” The President responded that “… for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.”
The decision is an enormous vindication for Solicitor General Verrilli who argued forcibly that the law could be sustained under the taxing power. He spent the final eight transcript pages making the argument that persuaded the chief justice. The use of the tax power was foreshadowed during the argument over whether the litigation was barred. As I said immediately after the March oral argument in the mandate case:
Yesterday the Chief Justice said that it doesn’t make much sense to say that the mandate is separate from the penalty or the tax. He seemed yesterday to have accepted the government’s argument that there’s a real choice here. If you don’t want to have health insurance that you can pay the tax penalty.
There is much, much more to say after reading and rereading. But I’m most happy for families who will get to see a doctor when they are sick.
Read the rest of Slate’s coverage on the Supreme Court upholding the Affordable Care Act.