The Opinion was surprisingly written, for the most part, by Chief Justice Roberts, joined in various parts by Justices Sotomayor, Kagan, Breyer and Ginsburg (the latter of who wrote the concurring opinion. Roberts opinion said:
The Affordable Care Act is constitutional in part and unconstitutional in part. 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. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.
Seems to me that it makes more sense as a Commerce Clause enactment, but if he wants to call it a tax, that’s OK with me. I liked Justice Ginsburg’s comment in the concurring opinion:
When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically,would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. …Yet no one would offer the “hypothetical and unreal possibilit[y],” … of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”). But see, e.g., post, at 3 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.) (asserting, outlandishly, that if the minimum coverage provision is sustained, then Congress could make “breathing in and out the basis for federal prescription”).
(It’s kind of ironic to see Robert Bork cited in there, but hey, you take your humor where you find it.)
It’s still an imperfect piece of legislation. Most people will acknowledge that, but in what manner and to what extent cannot be known until it’s actually implemented, which presently will not really take off in earnest until 2014. It will take years of experience to see what works and what doesn’t, and what will need to be tweaked.
I’m happy that I was able to put my son back on my office provided insurance plan almost immediately, last year, because he wasn’t a full time student then. It remains to be seen whether costs for insurance will actually come down. I won’t hold my hopes out on the latter, since health care delivery is still driven by the profit motive of private corporations and the medical profession, but one can hope.
I will be interested to see how this shapes the political campaign. Romney has already said that he will repeal the law (not if Democrats win more seats, though). I’m sure the wing nut base are already gearing up to declare Roberts a traitor, who has gone to the Dark Side, when all he did was be judicial, and exercise judicial
restraint modesty, something he actually promised to do when he was asked during his confirmation hearings. If only Justice Alito did the same thing, I might have a higher regard for him too.
Justice Thomas, on the other hand, clearly voted against the Act, joining in the dissent. He should have recused himself, given his wife’s involvement, and economic interest, in the movement to repeal the Act. Frankly, that’s grounds for impeachment, but don’t hold your breath on that one either.
Back to Romney. I see his campaign position being made that much harder to justify when the Supreme Court has ruled that the Act stands. Coupled with the fact that the Act is actually modeled on the somewhat successful Massachusetts statute that was passed under Romney, which he took credit for, I would think that the issue will be shunted to the background by the Republicans. Why they would want to continually harp on it after this would be anybody’s guess, unless they enjoy the feeling of putting a bullet or two in their political foot.
If they had any brains, they’d take to calling it RomneyCare from now on.