Obamacare: Is Chief Justice Roberts a Hero or Traitor?

[JeanWTPUSA]

In 2010, Congress enacted the Patient Protection and Affordable Care Act in order to increase the number of Americans covered by health insurance and decrease the cost of health care. If you haven't read the ACA, you may read it here: http://www.healthcare.gov/law/full/

Twenty-six States, several individuals, and the National Federation of Independent Business brought suit in Federal District Court,challenging the constitutionality of the individual mandate and the Medicaid expansion.

Today, the Constitutionality of two key provisions were ruled on by the United States Supreme Court. In a Split decision SCALIA, KENNEDY, THOMAS, and ALITO dissenting, the court addressed the following provisions. 

1. Is the "individual mandate" which requires most Americans to maintain “minimum essential” health insurance coverage or pay a "penalty" Constitutional? (26 U. S. C. §5000A)

    Yes. The individual mandate can be sustained as a tax under Congress’ taxing power.

----AND

2. Can the Federal Government "cut off"  ALL Medicaid funding to individual States that choose not to comply with the Medicaid expansion and other requirements set forth under the ACA?

     No. The Medicaid expansion is unconstitutionally coercive if states are threatened with loss of all their Medicaid funding if they don’t comply with the expansion. With that threat stripped from the statute, it survives review.

If you haven't read the Supreme Court Opinion on the Constitutionality of the Affordable Care Act please read it here: http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

These holdings mean that the ACA – including all provisions relevant to hospitals and their regulatory environment, with some exceptions relating to Medicaid – survive.

In regards to the "individual mandate," the Federal Government made THREE arguments to support their legal and regulatory authority and here is what Chief Justice Roberts wrote in his opinion about each of the Feds arguments.

Argument 1. The Feds have the authority to regulate "health insurance activity" under the Commerce Clause. Robert's writes: 

"The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce

power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce."

"Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

Argument 2. The Feds have the authority to regulate "health insurance activity" under the Necessary and Proper Clause Robert's writes:

"...the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. E.g., United States v. Comstock, 560 U.S. ___. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.

Argument 3. The Feds have the authority to "penalize" individuals for "non health insurance activity" under the theory that that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1. Robert's writes:

"In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32."

"the individual mandate may be upheld because it is within Congress’s power under the Taxing Clause, even though the The Affordable Care Act describes the “shared responsibility payment” as a “penalty,” and not a “tax.” In the opinion he states, "this Court follows a functional approach,“[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287,294. Pp. 33–35. Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance. See New York v. United States, 505 U. S. 144, 169–174. Pp. 35–40"

In regards to why Roberts may be a "hero" for concluding that the Feds arguments in 1 and 2 were overreaching, let's look to some of the statements made by Justice Ginsberg in her dissenting opinion on the applicability of the Commerce Clause: Ginsberg-"Our decisions thus acknowledge Congress’ authority,under the Commerce Clause, to direct the conduct of an individual today"...."Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion."

What Roberts wrote in his opinion, however, concerning Argument 3, regarding the Feds power to "tax" is not what the legislature intended. The pResident sold the ACA to the American people by calling it a "penalty or a shared responsibility." The ACA would have never passed if the Congress called the individual mandate what Roberts said it is, a "tax."

Now, thanks to Roberts, American's can face a "tax" on any non-activity. After all, it's "precedent." Whatever Roberts wrote in his opinion regarding the Feds Commerce and Necessary and Proper Clause arguments that may make him a "hero" to some conservatives, it is negated by the fact that he has just given the Federal Government the power to "tax" individuals on any type of behavior on non-action the Feds determine may be "good" for us.

Roberts opinion will have far reaching consequences that will give the Feds more power under the "tax" clause. What's to stop the government from imposing a "gas gusseling tax" for those who drive an SUV vs. an electric car? If you don't retire your SUV for something more fuel efficient, you pay a tax. Or-if you don't by an electric car, you pay a tax. Where will it end?

In regards to "medicaid expansion," the Federal Government made the following argument to support their legal and regulatory authority for the ACA's massive medicaid expansion program.

Argument: The Feds claimed that the Medicaid expansion in the ACA was merely a "modification of the existing program." They argued that because the States agreed that Congress could change the terms of Medicaid when they (the States) signed on to it in the first place, that they (the States) were not only aware of the clause which expressly gives the Feds the “the right to alter, amend, or repeal any provision” of that statute. 42 U. S. C. §1304, but they were in "agreement" with it.

Here is what Chief Justice Roberts wrote in his opinion about the Feds arguments:

 

“..if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.” Pennhurst, 451 U. S., at 17. A State confronted with statutory language reserving the right to “alter” or “amend” the pertinent provisions of the Social Security Act might reasonably assume that Congress was entitled to make adjustments to the Medicaid program as it developed. Congress has in fact done so, sometimes conditioning only the new funding, other times both old and new. See, e.g., Social Security Amendments of 1972, 86 Stat. 1381–1382, 1465 (extending Medicaid eligibility, but partly conditioning only the new funding); Omnibus Budget Reconciliation Act of 1990, §4601, 104 Stat. 1388–166 (extending eligibility, and conditioning old and new funds)."

"The Medicaid expansion, however, accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly, and needy families with dependent children. See 42 U. S. C. §1396a(a)(10). Previous amendments to Medicaid eligibility merely altered and expanded the boundaries of these categories. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire non elderly population with income below 133 percent of the poverty level. It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage. Indeed, the manner in which the expansion is structured indicates that while Congress may have styled the expansion a mere alteration of existing Medicaid, it recognized it was enlisting the States in a new health care program. Congress created a separate funding provision to cover the costs of providing services to any person made newly eligible by the expansion. While Congress pays 50 to 83 percent of the costs of covering individuals currently enrolled in Medicaid, §1396d(b), once the expansion is fully implemented Congress will pay 90 percent of the costs for newly eligible persons, §1396d(y)(1). The conditions on use of the different funds are also distinct. Congress mandated that newly eligible persons receive a level of coverage that is less comprehensive than the traditional Medicaid benefit package. §1396a(k)(1); see Brief for United States."

As we have explained, “though Congress’ power to legislate under the spending power is broad, it does not include surprising participating States with post acceptance or ‘retroactive’ conditions.” Pennhurst, supra, at

25. A State could hardly anticipate that Congress’s reservation of the right to “alter” or “amend” the Medicaid program included the power to transform it so dramatically.

And, lastly, "The threatened withholding of “existing Medicaid funds” is “a gun to the head” that forces States to acquiesce. Ante, at 50–51 (citing 42 U. S. C. §1396c)."

Again, one only has to look to the circular reasoning of Justice Ginsburg to validate why Roberts again formulated the correct opinion. Ginsburg-"...this expansion is no different from the previous changes to Medicaid, such that “a State would be hard put to complain that it lacked fair notice.” Post, at 56.  and suggests that "the States can have no objection to the Medicaid expansion, because “Congress could have repealed Medicaid and, thereafter could have enacted Medicaid II, a new program combining the pre-2010 coverage with the expanded coverage required by the ACA.” Post, at 51; see also post, at 38."

The Dissentors: SCALIA, KENNEDY, THOMAS, and ALITO,  dissenting, the court addressed the following provisions.

"Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection and Affordable Care Act (Affordable Care Act or ACA) go beyond those powers. We conclude that they do."

"The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying non consenting States all Medicaid funding. These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative."

You may read more on the rationale for the dissenting opinion here http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

So what really happened?

Roberts accepted the “coercion” doctrine – i.e., the principle that if Congress offers the states inducements to regulate that are impossible to turn down, that amounts to a direct command that violates the Constitution.  (That idea got seven votes, so the “coercion doctrine” is now the law.)  But he held that, in this case, the problem can be solved by forbidding Congress to take away all Medicaid funds from a state that refuses to expand Medicaid as ordered by the ACA.  Congress instead can only threaten the states with loss of new funds provided by the Act.

Robert made these points: 

“Nothing in our opinion precludes Congress from offering funds under the Affordable Care Act to expand the availability of health care, and requiring that States accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.”

“Section 1396c gives the Secretary of Health and Human Services the authority to do just that. It allows her to withhold all ‘further [Medicaid] payments . . . to the State’ if she determines that the State is out of compliance with any Medicaid requirement, including those contained in the expansion. In light of the Court’s holding, the Secretary cannot apply §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion.”

But here's the question we all need to be asking....

WHAT can the Feds mandate, compel, coerce, fine, surcharge, regulate, etc. in regards to the PCA?  

Keep in mind that Roberts only stated that the Feds can't take away all of the states medicaid funding. He did not say that no coercive measures can be used to get the states to implement the ACA as the pResident intended.
The ACA already gives the Feds permission to set up health insurance exchanges in states that do not set up exchanges. So, what's to stop the Feds from requiring the states to pay back the Feds for implementing or administering these programs. What if the Feds decided to "tax" each of the states citizens to pay for the cost of the states "non activity." What if the Feds "held a gun to the states head" and told them that they choose not to set up or administer an exchange, the Feds will charge the state a 2 Billion dollar surcharge to set up and administer the change for them?

The Feds can already charge states hefty fines "not doing something." States that do not comply with "No Child Left Behind" pay a Federal fine. The Feds can require States to pay into various funds. They can require the "proper disposal" of nuclear waste or issue a "fee" or "surcharge." So what's to stop the Feds from imposing a fine, fee, penalty, surcharge, etc. on States that do not implement ACA's medicaid expansion requirements? Nothing!

No child left behind: http://www.chron.com/news/houston-texas/article/Texas-fined-444-000...

Nuclear Waste: http://www.mcclatchydc.com/2012/04/30/147207/states-seek-court-acti...

Also, we all know the Feds are already targeting businesses. What's to stop them form imposing additional fines, fees, taxes, etc. for any business that doesn't comply a laundry list of requirements that Department of HHS's deems necessary. If the Feds can fine schools for selling sugary soft drinks, whats to stop them now from fining, penalizing and "taxing' anything else? Soda Fines: http://www.theblaze.com/stories/utah-school-fined-15000-for-acciden...

Remember, the power of Congress is just not limited to it's power to "Tax." It is Congresses' power to "Control" that we all should be extremely concerned about.

[McFixit1]

It might be a good idea to start calling the affordable care act the Unaffordable Obamacare/ Tax Act of 2010 so the people start getting used to the fact they have been abused by the Obama Administration and the Socialist Democrats that rammed it through and act accordingly in November..