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Kevin ClarkeJune 28, 2012

Decision just announced. Mandate constitutional; ACA survives intact. 

Biggest surprise may be that Chief Justice Roberts voted for the majority, saving Obamacare.

From Scotusblog, reading decision:

"Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it."

From Scotusblog

On the Medicaid issue, a majority of the Court holds that the Medicaid expansion is constitutional but that it w/b unconstitutional for the federal government to withhold Medicaid funds for non-compliance with the expansion provisions.

The key comment on salvaging the Medicaid expansion is this (from Roberts): "Nothing in our opinion precludes Congress from offering funds under the ACA 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."

Could mean some tinkering with the law is forthcoming regarding expanded Medicaid.

If I am understanding the good folks at Scotusblog, ACA "mandate" does not survive under the commerce clause but must be redefined as a tax and falls within the federal government's taxing authority.

Justice Kennedy in dissent declares: "In our view, the entire Act before us is invalid in its entirety."

The decision has been posted at http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

The following statement is being released by Sr. Carol Keehan, DC, president and chief executive officer of the Catholic Health Association of the United States (CHA):

The Catholic Health Association is taking time to carefully read and evaluate the Supreme Court’s decision on the Affordable Care Act (ACA) and may have additional comments once our review is complete.

We are pleased that, based on an initial read of the ruling, the ACA has been found constitutional and will remain in effect. CHA has long supported health reform that expands access and coverage to everyone. We signed onto amicus briefs encouraging the Court to find in favor of the ACA’s individual mandate and the Medicaid expansion.

As the ruling is examined, Catholic-sponsored health care providers will continue to lead health care transformation – finding new and better ways to provide compassionate, high- quality care while strengthening the communities we serve.

In the coming weeks and months we will continue working closely with our members, Congress and the Administration to implement the ACA as fairly and effectively as possible.

U.S. bishops' conference, which took no position on issues before the court, will not join efforts to repeal the law, still urges legislative remedies to "repair" ACA:

First, ACA allows use of federal funds to pay for elective abortions and for plans that cover such abortions, contradicting longstanding federal policy. The risk we identified in this area has already materialized, particularly in the initial approval by the Department of Health and Human Services (HHS) of "high risk" insurance pools that would have covered abortion.

Second, the Act fails to include necessary language to provide essential conscience protection, both within and beyond the abortion context. We have provided extensive analyses of ACA's defects with respect to both abortion and conscience. The lack of statutory conscience protections applicable to ACA's new mandates has been illustrated in dramatic fashion by HHS's "preventive services" mandate, which forces religious and other employers to cover sterilization and contraception, including abortifacient drugs.

Third, ACA fails to treat immigrant workers and their families fairly. ACA leaves them worse off by not allowing them to purchase health coverage in the new exchanges created under the law, even if they use their own money. This undermines the Act's stated goal of promoting access to basic life-affirming health care for everyone, especially for those most in need.

According to the bishops, "The decision of the Supreme Court neither diminishes the moral imperative to ensure decent health care for all, nor eliminates the need to correct the fundamental flaws described above. We therefore continue to urge Congress to pass, and the Administration to sign, legislation to fix those flaws."

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C Walter Mattingly
10 years 9 months ago
This ruling, in which CJ Roberts, the justice Obama opposed and disparaged, saved the president's program, a most interesting event.
Chief Justice Roberts' nomination was opposed by then-Senator Barack Obama, who explained in his no vote that his opposition was based upon his belief that Roberts would align himself against the interests of the general population and with the special interests. Later, President Obama would take the most unusual step of publicly chastizing the Chief Justice and the court in a presidential address, bravely choosing a moment in which they were by courtesy unable to voice a response.
Then, despite the disrespectful ill-treatment by Obama, Roberts, vilified by the left as a member of the rigidly ideological conservative block of the court, literally saved Obamacare for the president by proving with his vote that the supposedly rock-solid 4 member conservative block of voters, in this case joined by the swing vote of Kennedy, was a fiction.
In the contest of the history of the relationship of Roberts and Obama, Roberts looms large in comparison to the disparaging smallmindedness of the president, of a man who walks the talk, and one who does not. 
That was not the case, of course, with the liberal 4 member liberal block, which remained cemented together for the vote. Had one liberal member acted as Roberts did, Obamacare would have been defeated. So the idea of the rigidity of the liberal court block remains cemented in place, while the idea of such rigidity of the conservative block is here disproven.
As Roberts noted, this in no way indicates an approval of what the president and the two branches of the government his party controlled at the time have done, neither in the manner in which it was done nor the contents of the act. This, however, Roberts states is a matter up to the voters, and not the Supreme Court, to decide. 
No Roe/Wade type legislation coming from the Roberts Supreme Court, we can all happily conclude. He has evinced an integrity the citizenry has found wanting elsewhere, our president not excepted.
Amy Ho-Ohn
10 years 9 months ago
"... the idea of the rigidity of the liberal court block remains cemented in place, while the idea of such rigidity of the conservative block is here disproven"

Law is less like politics than like math. If Roberts agrees with the four "liberals" that two plus two is four while the four "conservatives" obdurately insist it's five, that hardly disproves the "rigidity" of the latter.
C Walter Mattingly
10 years 9 months ago
Amy (18),
I'm no lawyer, so I stand to be corrected, but my understanding is that 2+2=4, cut and dried issues rarely get to the SC, that most issues the court considers are subject to constitutional arguments from either side. Yet for whatever reason, the decisions of the 4 judges of the so-called liberal "block" are perceived commonly to support the liberal, democratic agenda, while the other 4 support the conservative, usually republican agenda. Accordingly both the liberal and the conservative press pundits predicted that the swing vote, Kennedy, would decide the issue, with the vote split between the two blocks. The fact that Kennedy voted against Obamacare and it nonetheless passed was due to the vote of Roberts, who thereby fractured the myth of the conservative voting block. 
The liberal block of 4 voted as expected, and therefore retain their credibility as such in the eyes of the public, whether this "block" issue, maintained and abetted by the press, is valid or merely cartoonish. 
Robert Dean
10 years 9 months ago
I'm replying to my own comment #4 of yesterday.  On further reflection, I can't help but wonder if Mr. Chief Justice Roberts voted the way he did to provide fuel for a further firestorm for "political" "debate" about this law.  Maybe I've just become too cynical.
Michael Appleton
10 years 9 months ago
I will not have an opportunity to read the entire decision until this weekend, but do have some preliminary observations.  First, I am one of what appears to be a minority of lawyers who believed that the ACA would be held constitutional, but I was convinced that it would be upheld under the Commerce Clause.  Second, Justice Roberts' unwillingness to accept the Commerce Clause argument suggests to me that he retains a desire to impose limitations on federal authority to regulate commerce and senses  danger in supporting constitutional jurisprudence that affords commercial "inactivity" a seat at the table.  Third, his reasoning on the Taxation and Spending Clause appears somewhat stiff and artificial, as though he only grudgingly resorted to it based on a perception that he needed to find a way to uphold the legislation.  Why he might have that perception will be much debated, but I believe that he anticipates many more years on the bench and does not want his legacy to be inextricably intertwined with that of Justice Scalia, who is developing a reputation as an ill-tempered and arrogant political partisan.  Moreover, Justice Roberts is keenly aware of the severe damage done to the Court's reputation in the years following Bush v. Gore and may well have felt that an adverse decision in this case, given the magnitude of its social, economic and political importance, would produce such further erosion in public respect for the Court that he would have to spend the rest of his career attempting to restore confidence in the judiciary.
Tom Maher
10 years 9 months ago
Kent  Dent # 20

Your "cynical" afterthoughts may be much more accurate in evaluating the motivations and impacts of Jusitce Roberts decision than your original first and second impressions in # 4 above.

 I hope it is not too harsh to say that what happened is not explained by Justice Roberts desire to be bipartisan, or demonstrate his decency and common sense that you expect.  Justice Roberts was serving other interests such as a number of basic Constitutional principles which he wanted to preserve becasue they worked so well for the last 237 years.

It would probably be too boring and tedious for both of us for me to cite what these Consistutional pricinples are and why they are important today.  But Chief Justice Roberts motivations deserves the benefit of the doubt that he knew what he was doing and was acting honorably. 

It should have been immeadiately apparent that Justicer Roberts has not done President Obama or Obamacare any favors such as "saving" Obamacare as if that was his motivation and purpose. 

On its face why would one assume that Justice Roberts wanted to save Obamacare or help President Obama?  

What has happened is that a firestorm politcal issue of Obamacare that has been continuously in disfavor by most Americans has been kept alive going into a Presidential elections and will become a major campaign issue.
Tony Podlecki
10 years 9 months ago
Hooray for the Catholic nuns; boo for Catholic bishops, except in so far as they see the moral imperative of extending AHA to all immigrants and (so-called) illegal.
Robert Sherman
10 years 9 months ago
The Affordable Care Act is neither affordable or caring.
Lawyers were rewarded by creating 50 state monopolies on insurance overseen by a federal bureaucracy.
To raise rates, insurance companies will have to make 50 separate filings for 50 separate subsidiaries creating hundreds of thousands of lawyer jobs.
Ditto filing for policy inclusions and commenting on 50 sets of state regulations to accompany the federal ones.
The penalty tax is the most regressive tax created since poll taxes were voided. Young people, starting off their own businesses are especially hard hit to subsidize what many would consider people who thrive on milking government assistance programs to the maximum.
The system which unfairly taxes people in different cities and states at different rates to support medicaid was perpetuated. New York City residents pay the highest rate in the company to support multitudes. There is no equity or fairness in this.
The extra capital gains will penalize people saving for retirement and is regressive. The $250,000 limit does not take into account regional cost of living differences. It cost a heck of a lot more money to be middle class in New York City and Boston than it does in Atlanta.  We already pay a disproportinate share of Federal income taxes.
It steals $50 billion a year from the billions paid into the Medicare Trust fund by wage earners over the last 35 years, cuts the amount it pays doctors and drives them into rejecting medicare. Three of our doctors in NYC had to opt out of the system. So Obama was right, you can keep your doctor as long as you are willing to pay him or her directly.
It continues a very questionable system where HHS oversees government bureaucrats who run medicare who hire outside contractors based on questionable criteria (since it isn't readily available or publicized) to process claims that it pays so little on. Why is a union oriented insurance company in the midwest processing medicare claims for New York?
How come the medicare recipient, the actual customer, not able to ask a question about the status of a claim?
There is no readily available breakdown of where the money goes. Apparently very little for actual patient care.
The so called death panel includes nurses, who can be nice people but are not doctors, and the doctors on the panel don't seem to have actual patient practices. They appear to all be university professors.
What is the scientific efficacy of making so called life and death decisions based on 'studies of studies' of questionable validity.
How could America magazine endorse in any way an act where the government feels emboldened to decide what is or is not a religious organization and then order religious organizations to provide services against its core beliefs?  Why is the morning after pill referred to by anything other than its actual purpose, abort life if it exists?
You are so very disappointing.
Thomas Rooney OFS
10 years 9 months ago
Color me very, VERY surpirsed.
Rick Fueyo
10 years 9 months ago
Very surprised.  Printed out the 193 page decision.  Will have to wait till tonite to read.  Scanned the opening page of dissent.  It essentially states that all the New Deal Constitutional decisions were wrong.  Less obvious is that it disagrees with all of what Bruce Ackerman has called the de facto Constitutional Convention that followed the Civil War. 

Always the logical flaw in that jurisprudence, not to mention the Industrial Revolution.

John Roberts may need Secret Service protection.  He will certainly be ostracized from the DC social scene
Juan Lino
10 years 9 months ago
I am definitely surprised. Like Rick, I've downloaded the decision and will read it tonight.

It's interesting that they decided to call the individual mandate requirement a "tax". 
Robert Dean
10 years 9 months ago
Just when I'd about given up on the prospect of anything bipartisan happening in DC, Chief Justice John Roberts, of all people, goes and renews my faith in common sense and decency.  I'm not qualified to speak to the legal aspects of the decision, but I do know that Mr. Chief Justice Roberts saved ACA.  Well-done, sir, and thank you.
Joshua DeCuir
10 years 9 months ago
"John Roberts may need Secret Service protection.  He will certainly be ostracized from the DC social scene"

But liberals have been telling me since March what an unhinged, right-wing activist justice he is pushing the Court further to the right than it ever has been in its history!

- I'd say whatever damage to Roberts' legacy has been done by those obviously slanderous statements.
David Pasinski
10 years 9 months ago
 as a Consumer Health Advocate, I am delighted that this is upheld, b ut troubled abut the Medicaid decision. Moe than half a glassfor sure and I wold have lost a bet on thi slso, but am glad to see Justice Roberts independence. Now idf Scalia will resign... (!)
Tom Maher
10 years 9 months ago
The "suprised" are your typical intellectually cloistered Catholics with very shallow understanding of the Constistution and the Supreme Court is all about and no appreciation  or insights of the deeper and real Consistutional priciples at play in deciding the Constitutionalality of laws for 237 years.  The intellecually cloistered are as always great moralizers imagining huge political conspiracies by imaginary dark forces.  Their rigid moraliztic preconceptions completely miss the blessing, power and utitlity of the Consistutuion in resolving what the basic law of the land is,  how are laws should be interpreted and how our legal system has served the nation so well in resolving legal conlicts. 

The consistutional conflict had a simple resolutions.  None of the justices accepted the individual mandate as being authorized under the commerce clause as the adminstration agured in its oral arguments.  Instead the court recognized ,not the mandate,  but the apenalty for not purchasing insurance as a tax.   The court took off the politcal mask of a "mandate" and called it what it really is a tax.  - a tax on everyone, something that no politcian want to admit to but Congress does have the power to tax. 

Also the Court ruled that existing medicare funding could not be revolked from states who did not want to expand medicare as required by the new health care law.  This preseves the Constistutional principle of state sovereignty.

The final resolution of the new Health Care law is now in the hands of the people to decide. Politically this is will be in at least in Congress will be a furhter reenactment of what happened in the elections of  2010 when the Republican opposition gained 65 seats in the House and a near-majority  in the Senate due to the majority public demand to repeal the Obama health care law.  The numerous unresolved politcal issues remaining should be resolved by the entire public in a few months in the fall 2012 elections. 
Thomas Rooney OFS
10 years 9 months ago
Tom Maher writes -

"The "suprised" are your typical intellectually cloistered Catholics with very shallow understanding of the Constistution and the Supreme Court is all about and no appreciation  or insights of the deeper and real Consistutional priciples at play in deciding the Constitutionalality of laws for 237 years..."

Wow - that's quite a broad brush to be painting with there, Mr. Maher.  I merely expected the ruling to go 5-4 the other way  - Chief Justice Robert surprised me.  How that defines me as an "intellectually cloistered", overly-moralizing conspiracy theorist with no clue how our government works or how to read a Supreme Court ruling honestly baffles me a bit.  Would you care to expound once the enlightenment from your "Good Government 101" lecture dies down a tad?

None of the justices accepted the individual mandate as being authorized under the commerce clause as the adminstration agured in its oral arguments.

Justice Ginsburg supported the commerce clause authorization argument.


ed gleason
10 years 9 months ago
Congress called the mandate fee a penalty. Roberts et al calls it a 'tax' . The ACA law will still have it written as a penalty... because SC does not write laws only interperts. And  I always thought the Cons didn't want Justices to 'write' laws!
Some Single, employed, young and healthy who would rather wait till they car crash to buy insurance. will cry,  calling it robbery.  
Juan Lino
10 years 9 months ago
Tom (#7) - Wow, talk about being judgmental! I’ve often disagreed with others who comment on this blog but I don’t think I’ve slammed their character the way you just did.
Wouldn't it have been more intelligent to ask why we were surprised?
I'm with Mr. Rooney - Chief Justice Roberts was a real surprise.
Tom Maher
10 years 9 months ago
Thomas Rooney OFS # 8
Juan Lino # 10

Pardon me.  Surprise?  Even great surprise?   Are you prepared to recognize  your surprise speaks volumes? 

Aren't you surprised because you would not have predictied what just actually happened in the Supreme Court decision?   And why is that?   Does that no suggest some kind of disconnection or remotness to explainations to what is going on?  

Or Rick Fueyo another "very surprised" person.  Rick Fueyo states "John Roberts may need secret service protection."  And  further "He will be ostracized from the DC social scene."   What basis does Rick Fueyo's have for these statements? 

And pardon me further.  But deos this exposed a beleif not found in reality?  And isn't that a pattern that repeats itself again and again where one asks what are they talking about? ??? ?
Joshua DeCuir
10 years 9 months ago
"The "suprised" are your typical intellectually cloistered Catholics with very shallow understanding of the Constistution and the Supreme Court is all about and no appreciation  or insights of the deeper and real Consistutional priciples at play in deciding the Constitutionalality of laws for 237 years."

Wow; who, exactly, are the "intellectually cloistered Catholics"?

What an arrogant statement.
Jim McCrea
10 years 9 months ago
Tom:  you've been called out by someone who usually is a fellow traveler.

Take your lumps and give it up.
Carlos Orozco
10 years 9 months ago
The Emperor knows best, he's a doctor.
Crystal Watson
10 years 9 months ago
Good news, except for the Medicaid part.

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