Individual Mandate Upheld Under Taxing Power

| Thu Jun. 28, 2012 9:09 AM EDT

10:08: The individual mandate has been struck down but survives as a tax. Say what? More in a moment.

10:10: Wait a second. SCOTUSblog says the mandate is constitutional, with Chief Justice Roberts joining the court's commies. The Medicaid provision is "limited but not invalidated."

10:13: From SCOTUSblog: "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read."

10:15: CNN reads a piece from the decision, written by Roberts. Says the mandate is upheld under Congress's taxing power.

10:16: CNN now agrees that the entire law has been upheld.

So I wonder what the decision says about Congress's Commerce Clause power? Did they define some kind of limiting principle? Or just punt? More in a moment.

10:19: So apparently this is a 5-4 decision, with Roberts voting to uphold Obamacare and Kennedy voting to overturn. Who would have predicted that?

10:22: SCOTUSblog excerpts this from the section of the decision on Medicaid expansion: "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."

10:24: Sure enough, CNN confirms that it's Roberts and the liberals voting to uphold, with Kennedy and the conservatives voting to overturn. Everyone figured that Roberts might jump to the liberal side if Kennedy also did so, in order to make it a 6-3 decision and give himself the job of writing the decision. But no. This should be good for about a million words of Kremlinology.

10:28: Time's Michael Crowley tweets: "Friend who worked in House D leadership chuckles at memory of how hard Dems strained to ensure mandate was not seen as a tax."

10:30: Wow. Apparently the minority believes the entire act is unconstitutional, lock, stock and barrel. Maybe that's why Roberts defected. He might have been up for overturning the mandate, but not the entire law.

10:33: Amy Howe of SCOTUSblog summarizes the ruling: "The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding."

10:34: Needless to say, this ensures that Obamacare will be a gigantic political football during campaign season. That will definitely electrify the tea party base, which I guess is good for Romney. Not sure yet what the other political implications are.

10:38: From a friend: "Man, the right is going to turn on Roberts now. He's going to be the new Souter." No kidding. Roberts is about to become Public Enemy #1 on Fox News.