Thursday, June 28, 2012

Do You Have Any Idea How Close the Affordable Care Act Came to Being Toast?

I expected Supreme Court Justice Anthony Kennedy to vote to toss the individual mandate. I had no doubt the other three conservative justices would want the whole of the Affordable Care Act thrown out.

I also expected the four liberal justices to support both the individual mandate as well as the entire law.

About everyone expected Roberts and Kennedy to vote alike.

If Roberts had gone with Kennedy, that would have been a majority of votes (5-4) to void all 2,900 pages of the Affordable Health Care Act. Not just kill the mandate, but the whole thing. Apparently, just killing the mandate was never an option for this Court--something most of us believed was the most likely outcome!

But Roberts had an opinion of his own. In his mind, like the other conservative justices, the mandate was inconsistent with the Commerce Clause of the Constitution. But, unlike the other conservatives, Roberts believed failure to comply with it triggers a tax. Which it is what it looks like to any regular person outside the Beltway for that matter.

So the law stands.

Four justices to kill it, four justices to keep it, and one justice who saw things dramatically differently than all the rest.

To all my liberal and progressive friends: No more complaining about Citizens United and the "politicized" Supreme Court. Did you notice that the justice your guy did not vote to confirm also sided with liberals to invalidate much of the Arizona immigration law on Monday?

To my conservative friends: Pay the tax or buy insurance and stop your whining. To the extent this is a mandate, it's a pretty tepid one.

This was a hard decision for John Roberts. I like people who think all of this is hard. We need more people who see more than black and white and understand just how hard to solve health care reform--or any of the other of the big problems facing our country--is.

This was an agonizing decision for John Roberts and I think of him as a better person for it.

Except next time, could the Court just skip all the summer falderal making us try to guess which day they were going to grace us with their decision and just tell us which day to be paying close attention?


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