jj-
06-28-2012, 09:10 PM
The Supreme Court was asked whether the mandate was Constitutional. It said it was because Congress had the power to tax. If the law was written explicitly as a tax, it would been found Constitutional even more easily. In Scalia's words (who voted to strike down the mandate and the entire law):
The federal government could have simply said, without all of the rest of this legislation, everybody who doesn't buy health insurance at a certain age will be taxed so much money
Note that using the taxing power to impose penalties is not really something new because tax credits already exist. A tax credit for any activity is equivalent to a tax penalty for not doing that activity. So the real innovation of Robert's ruling is that if Congress passes a penalty that would have been upheld had the penalty been a tax, then the court will interpret that the penalty is a tax.
Implications:
1. The real judicial innovation of this case is that Congress can mess up the language and the Court will fix it. This innovation is out of thing air and shouldn't be too difficult to overturn in future courts, especially if Congress repeals Obamacare.
2. Since the mandate is a tax, it can be repealed through reconciliation. It's not filibuster-proof. So the mandate should be very easy to repeal, if Republicans have balls. It just takes 51 Senators. That will create chaos because the insurance companies would still have to insure people with preexisting conditions, which will create an opportunity to repeal the whole law.
3. The Court upheld that the mandate cannot be justified with the Commerce Clause. So it's one of the few times where the SC says that something can't be justified using the Commerce Clause. Unfortunately it was a 5-4 decision which can be reversed by changing just one Justice.
4. The Roberts Court is freer to repeal other laws without looking partisan. I don't care about the PR fight, but I don't rule out that this PR win might be useful.
Judicial Repeal vs. Congressional Repeal
If the Republicans repeal the mandate with 51 Senators and a house majority, that will not automatically of course get rid of the mandate insurance companies have to cover people with preexisting conditions. That will teach them a lesson for supporting a law that undermines the basic freedoms of the American people. They would not have had this lesson had the Court repealed the whole thing, but if Congress does repeal it, it would be even better than the Court striking it down over not writing the word tax instead of penalty.
The federal government could have simply said, without all of the rest of this legislation, everybody who doesn't buy health insurance at a certain age will be taxed so much money
Note that using the taxing power to impose penalties is not really something new because tax credits already exist. A tax credit for any activity is equivalent to a tax penalty for not doing that activity. So the real innovation of Robert's ruling is that if Congress passes a penalty that would have been upheld had the penalty been a tax, then the court will interpret that the penalty is a tax.
Implications:
1. The real judicial innovation of this case is that Congress can mess up the language and the Court will fix it. This innovation is out of thing air and shouldn't be too difficult to overturn in future courts, especially if Congress repeals Obamacare.
2. Since the mandate is a tax, it can be repealed through reconciliation. It's not filibuster-proof. So the mandate should be very easy to repeal, if Republicans have balls. It just takes 51 Senators. That will create chaos because the insurance companies would still have to insure people with preexisting conditions, which will create an opportunity to repeal the whole law.
3. The Court upheld that the mandate cannot be justified with the Commerce Clause. So it's one of the few times where the SC says that something can't be justified using the Commerce Clause. Unfortunately it was a 5-4 decision which can be reversed by changing just one Justice.
4. The Roberts Court is freer to repeal other laws without looking partisan. I don't care about the PR fight, but I don't rule out that this PR win might be useful.
Judicial Repeal vs. Congressional Repeal
If the Republicans repeal the mandate with 51 Senators and a house majority, that will not automatically of course get rid of the mandate insurance companies have to cover people with preexisting conditions. That will teach them a lesson for supporting a law that undermines the basic freedoms of the American people. They would not have had this lesson had the Court repealed the whole thing, but if Congress does repeal it, it would be even better than the Court striking it down over not writing the word tax instead of penalty.