Yes, you read that right!  The Supreme Court upheld the individual mandate provision of the law by a 9-0 unanimous vote.  No way, you say? Let me explain…

You probably heard or read that the decision upholding the Individual Mandate portion of the Patient Protection and Affordable Care Act (commonly referred to as Obamacare, or Obamney care, or for brevity’s sake, the ACA), was a razor thin 5 to 4, with Chief Justice John Roberts bending himself into a pretzel to keep the law in place.

A simple reading of the Syllabus would offer up what we all saw Thursday — an endless parade of mindless repeaters (for you info-geeks, the Syllabus is a sort of highlight version of the opinion of the Court, attached at the head of many important decisions, offered by the Reporter of Decisions — yes, that’s a real title).

The pundits and the bloggers, not to mention the impassioned legislators and partisans, sure had a field day with this decision.  I couldn’t blame you for thinking in one moment that this was the best thing for America, and in the next thinking that this was the end America.  A well-known religious book instructs: We see things not as they are…we see them as we are.  Well, we must be really screwed up!

What’s all the fuss?

To really understand the decision, it never hurts to actually read the decision.  And it seems very few of these commentators did.  Here’s what you need to know.  The individual mandate was the centerpiece of the ACA, the beating heart.  Plain and simple: It mandates that everyone in America have health insurance, a great Republican idea straight out of the conservative Heritage Foundation brain trust.

The soul of the ACA is the regulation of the health insurance industry.  Insurance companies would no longer be allowed to screw the average American by dropping them when they got sick, denying them for pre-existing conditions, jacking up rates after minor claims, setting yearly and lifetime caps on coverage, etc.  Put together, the millions of guaranteed new customers will generate huge revenues for the insurers and it will allow the industry to diversify its risk among a bigger pool of people, and — in theory — costs would be reduced, abuses would be eliminated, Americans would have a semblance of a safety net, and the insurance industry would thrive.

Win- win.

But the individual mandate was the key.  Without it, the whole thing falls.  So when it was challenged by the National Federation of Independent Business (NFIB), a bunch of States, and others, on the grounds that the federal government did not have the enumerated power to force a person into the economic activity of buying insurance, the case found it way to the Supreme Court.

To be sure, there were many issues, large and small, technical and procedural, before the court.   But the main event was the argument whether this statute was permissible under the Congress’ Article 1 Section 8 power to regulate commerce among the several states (the Commerce Clause; some call it the Interstate Commerce Clause).

The Commerce Clause is considered a grant of power, and not an express limitation of power — like the Bill of Rights.  A grant of power is a really big deal.  The Court has, throughout its history, held many positions concerning this clause, but the general trajectory has been to increase the regulatory power of the Congress and to expand the interpretation of the Commerce Clause.  It has been used by Congress to justify regulation of everything from navigable waters, to the New Deal programs, to Civil Rights, and on and on.

You fellas over at Max’s Deli only need glance at the certificates and placards on your walls to see the Interstate Commerce clause, by way of OSHA, at work.

There have been some notable exceptions to this trajectory.  Conservative courts like the Rehnquist court and even this Roberts court have trimmed it at the edges, but the general rule is that if it involves commerce or it affects commerce, then Congress may regulate it.   However, Roberts noted:  “The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated…[T] his Act instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.”  Hmm.

To be fair to Thursday’s losers, while congressional action mandating economic activity is certainly not unprecedented — Congress in 1792, with nearly two dozen Framers on board (and with George Washington among them), enacted a statute requiring all able-bodied men to purchase firearms — Congress rarely mandates such behavior on an individual.   And the most straightforward reading of the individual mandate is that it commands individuals to purchase insurance.

Roberts, to the delight of conservatives, decided the question thus: “They gave Congress the power to regulate commerce, not to compel it.”  The dissenters Justices Scalia, Thomas, Alito  (you can call them the usual suspects if you like) and Justice Kennedy (who has recently begun to show sign of mental exhaustion) agreed.

The court basically ruled 5 to 4 that the Commerce Clause was not applicable and that the Individual Mandate should fall on those grounds.  CNN and FOX News pounced.

The dissenters went on to say that the whole Act should fail since the mandate was the centerpiece, and Congress could not reasonably have intended for the Act to survive without it.  This was the “severability” argument that was also litigated.  Can the Act survive if the beating heart is severed from it?  If you couldn’t compel the people to get health insurance, then compelling the insurance companies into behaving as if their customers’ health mattered was financially fatal. The dissenters agreed — without the heart, the body dies.  Time for happy hour, Scalia’s buying!

To be honest, I am convinced by this portion of the dissent’s argument.  But case closed?  Time for drinks?  Not exactly…Chief Justice Roberts pivoted, “that is not the end of the matter.” Say what?

John Roberts, perhaps remembering the oath he took upon taking the bench, or the oath before his nomination hearing, at which he famously claimed that he would behave much like an umpire calling ball and strikes, decided to actually follow the law.   He quoted Justice Oliver Wendell Homes: “[T] he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”

MSNBC reported.

The Government had smartly put forth a plan-B argument that this mandate and penalty could also be considered a tax, since it was designed to be collected by the IRS in the regular course of taxation.  Roberts reasoned: “Under the Government’s theory, the mandate is not a legal command to buy insurance.  Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”  Just another thing the government taxes.  Ouch.

{For tax laypersons, just think of it in the inverse, as a tax credit for having health insurance, much like a tax credit for buying solar panels or an electric car, or some other behavior the government wants to encourage.  You don’t get the tax credit (or exemption) if you don’t have health insurance.  This isn’t at all accurate, but it serves to simplify the concept of the tax.}

Roberts continued: “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.  As we have explained, ‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’”  In plain speak–the Court has to give the Act every benefit of the doubt before it strikes it down.

I hope my ex-girlfriend is reading this.

The dissenters ruled that the Individual Mandate must fail on the grounds that it is antithetical to the Commerce Clause. Fine, but how did they feel about allowing it under the tax argument?  Here’s where things get interesting.

They all agreed that it may be considered a tax, but, a very big BUT, since it was not presented as tax, or written as a tax, or argued as a tax, then the Supreme Court was rightly powerless to rewrite the legislation to accommodate the mandate as a tax.  The writing of legislation is the job of the legislative branch, they reasoned.  They were, in effect, unwilling to agree to Roberts’ interpretation of centuries of jurisprudence that the law should be given the benefit of the doubt.

Roberts’ and the Courts’ opinion vigorously cited instances from liquor and lottery “fees,” to waste shipment “surcharges,” to child labor violation “penalties,” and emphasized that the Court had not allowed the constitutional question to be controlled by Congress’s choice of a label.  This is settled law he argued: “’Magic words or labels’ should not disable an otherwise constitutional levy.”

Preach it, brother!

The grumpy dissenters responded that, yes, Congress could do this as a tax, but since it was not called a tax, it was called a penalty, they were not budging — case law and precedent be damned. “We cannot rewrite the statute to be what it is not.”  The dissenters were playing politics.  They had a certain outcome in mind, and their dissent would hang the future of the country on a couple of technicalities.  They were putting spikes on the road to progress.

This, I believe, may have been what firmed Roberts’ position.

Roberts poked at the dissenters: …“because Congress did not ‘frame’ it as (a tax)…In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels.”

In case you didn’t recognize it as such, that was a bitch-slap in jurist-speak!

He continued: “In passing on the constitutionality of a tax law, we are concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it.”

The dissenters would not be persuaded.   In their own opinions, they agreed that the Congress may have the authority to issue an Individual Mandate “tax,” but insist that the Act be struck down in its entirety and that the Congress and the President could then go back to the drawing board, or laptops in this case, and “find and replace” the word “penalty” with “tax”, print it out, pass it through both houses of Congress again, sign it back into law, and then all would be cool.

Yep, that is basically what the usual suspects — these privileged, job-for-life, angry, old men in black robes — are demanding. But for these technical matters, that are really, really important to them, (that in the grand scheme of things amount to basically crossing t’s and dotting i’s), they are okay with the tax in principle.

And there you have it.

Roberts’ majority opinion, joined by Ginsberg, Breyer, Sotomayor and Kagan upheld the constitutionality of the Individual Mandate, under the Congress’s taxing authority.  Note that Ginsberg, Breyer, Sotomayor and Kagan would have also held the Act constitutional on Commerce Clause grounds — that’s just how they roll.

So, that’s 5 in favor.  How did I get to 9-0?

Did I lose you somewhere?  Here comes a really long (but important) sentence: Applying the majority reasoning and ample precedent that the Act should not fail based on improper labeling (tomatoe/tomato, let’s NOT call the whole thing off), and remembering that the law requires that “every reasonable construction must be resorted to in order to save a statute from unconstitutionality,” and then taking the dissenters at their word that this is doable as a taxing matter, we are forced to disregard their petty “redo” argument.   As such, all 9 Justices agree — for different reasons — that this is constitutional as a taxing matter.

The Court upholds the Individual Mandate 9 to 0!

What’s all the fuss?

**Apart from a few quotations used for emphasis purposes, all quotations are direct from various published Supreme Court decisions.

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  1. Vince says:

    Of course it was me. John Roberts didn’t stand a chance against my pithy daggers. This is an incredibly popular and influential blog, where the brave come to re-group, where the weak come to be pushed over the edge, where debutantes troll for sex, where frat boys get in touch with their feminine side, where politicians take lessons in leadership, where some lucky publisher will find the pot of gold at the end of the rhetorical rainbow. It’s constitutional to care, bitches!

  2. Vince says:

    The above is what Greg wrote on the last blog at the end. It needed to be repeated.

    • Gregor says:

      Anderson Cooper: “The fact is, I’m gay.”

      Greg Morelli: “The fact is, I’m great.”

      Both quotes are queer. But queer good.

  3. Vince says:

    Edwardo, you forgot to mention, in your book, that Roberts wrote 75%of the dissent and 100% of the majority. This is probably a first.

  4. Peter says:

    Pedro, Edwardo, Juan, el capitan, Jesus, or whatever your name is, you just don’t get it. Roberts saw that the only way to get the party moving and to beat the shit out of commies was to to let them win this. If Oprah care was killed, everyone wouldn’t give a shit. Take your Spick ass back to Guatamala and suck a horse dick, you fucking toad.

  5. Johnny Gray says:

    I’m a fan of anyone who’s into sucking horse dicks. Horses need love, too. But I wouldn’t go so far as calling Edwardo Ross a “Fucking Toad.”

    At least he thought about the ruling, going so far as to actually read the ruling. How many people can say that?

    Not me. Wish I could say otherwise. But it makes me typical. I need to work on changing that.

    • Don says:

      Just because Ed said he read the opinion doesn’t mean he read read it. Maybe Ed read an op-ed or listened to a talking head. If I could read what he said, by staying up late in bed, and getting an ache in my head, I’d be better off dead. Far too much was said. War and Peace was shorter. Enough said, Ed.

  6. Steven says:

    first off i might be for a mandate if i trusted the money was going to make things better.Just like i might give money to charity if i believed the money was going to get to the people. Id rather give a homeless guy money for beer than give to charity.At least I know he will get some enjoyment out of it.The heath care problem is this. When i have insurance i go to the doctor and the insurance pays the doctor maybe 70 dollars and i have 50 dollar co-pay. At times I have not had insurance and the doctor would charge me at least double psychiatrists triple for the same care. So if you do not have health insurance or poor enough for medicaid, then thats where the trouble is. Insurance companies get money for nothing to do with health. They distort the price of services where nobody without insurance can afford it. If there was no insurance then doctors could not charge so much because nobody would able to pay. Obama had secret meetings with the pharma companies (there were no so secret since the press reported this) and also had the insurance companies on board. Just think back when Hillary tried this and the resistance she got from the insurance companies. I do not think i saw one commercial from either big pharma or big insurance companies opposing this bill. This is going to force people to buy insurance and will increase the bottom line of companies like aetna. Obama could have expanded medicaid to maybe up the income of people making 35,000 and would have solved the problem, but then he would have got resistance from corporations. if there was true supply and demand only major surgery insurance would be needed and thats the function that insurance is suppose to be for, not managing healthcare. also most people that do not have health insurance make between 17000 and 45000, else you can probably afford it. So we are forcing people that are to poor to now face harrassment from the IRS, or I guess they are going to be offered government healthcare..Then why create all this when you already had a system in place called medicaid?? But of course if you have a predisposition to believe that Obama is very altruistic and cares about poor people than you are more likely to disregard these facts. Just like if you believed Bush would never do any harm you would be more likely to believe that steel frame buildings can fall at the speed of gravity without being hit by a plane like,or if your in love like i am now you really don’t give a shit about this anyway

  7. Gregor says:

    Glad to hear you’re in love, Steven.

    The trick is to be in love, and drift away to the far-off shores of Lovey Dovey, while still having the adult perspective to stay engaged the the issues of our day. Easier said than done.

    I don’t think President Obama is “altruistic.” He’s too ambitious to give everything away. On that level, I could stand to learn a thing or two.

    You happen to be correct: Medicaid or Medicare For All was the ideal solution. But we live in a democracy. It’s sloppy. No one gets everything they want, unless they’re appointed by the supreme court, in which case, they aren’t beholden to the people. It’s too neat and tidy to sneak your way to the top. I prefer the sloppiness of actually winning an election.

    What’s up with you, Steven? You’d make the perfect the enemy of the practical, wouldn’t you?

    The Affordable Care Act is merely the first step in getting America to universal health care. Getting everyone on board was the only way to go, at the time. Otherwise, President Obama would have painted himself into the victim corner, where he could’ve thrown himself a pity party, hosted by your pal, Ron Paul.

    Civil Rights wasn’t perfect when it passed. Voting rights had to be added. Can you imagine? We had to add the right to vote? But it was the same thing with Women’s Suffrage. We had to add what should’ve been obvious. But that’s how you negotiate with crooks.

    Don’t kid yourself, Steven. We know they’re crooks.

    Unfortunately, since the beginning of our democracy, the crooks have held all of the fucking cards. And they’re unwilling to give away their cards simply because the president is black and has a beautiful smile (which he happens to have, by the way).

    Anyway, back to the far-off shores of Lovey Dovey. I hope to visit you there, one day. Preferably one day soon. But for me, right now, I seem to be banished to the Island of Push-Ups & Porn.

    How else do you get through the humiliation of it all, and still manage to walk away with your chin up?

  8. Vince says:

    Funny thing. I don’t read what you idiots say any more. I just comment. You idiots have a lot to say. But who the fuck cares. It’s not a question. It’s a fucking statement.

    Have something to saesaeeayyyyyyyyeeheuuuuyyyy!

    Keep it to your self. You are meaningless. A comma in life, of that.

    • Johnny Gray says:

      The good news, Vince, is we’re reading you, which I find to be illuminating, with a refreshing sense of humor.

      I must admit, there has been a tendency, in this particular blog, for lengthy commentary. But there’s too much over-simplification going on.

      Don’t worry, Vince, I’m not going to use my last sentence as a launching-off point for a soliloquy.

      But I would like the conversation to be more lush, especially so we can try to understand the historical context for passing The Affordable Care Act.

  9. Vince says:

    Let’s call it Obama care, please. ACA would have been fine before the Supreme Court decision. Now, it’s Obama Care. He earned it.

  10. Edwardo Ross says:

    Dear Don,

    I provided a legal analysis of a 187-page Supreme Court decision (on perhaps the most important legislation in our generation) and condensed it into roughly 2000 words, and that was too much for you? There’s a pill for that, it’s called Adderall. OR you can just stick with USA Today and their cute color coding and snappy headlines. In any event, good luck with the nursery rhymes.


  11. Edwardo Ross says:

    Mr. Gray,

    Not sure what you mean by …” clearly overdosing”. And, I’m pretty sure there’s no pill called “Self-Importance,” at least not according to WebMD (I even tried looking it up without the hyphen). The thing is that I spent nearly 30 hours reviewing the ruling, and researching relevant case law, and I took great care to write up a new and original take on the subject. Although I did not expect anybody on this blog to actually address anything that I wrote, as evidenced by comments on previous articles, it is always unpleasant to read your critics, especially the mindless ones. After a couple of weeks removed from the decision, and having discussed it with countless friends and acquaintances, the only thing that I have learned is that exactly 100% of the people that I’ve spoken with have NOT read the opinion. I find that remarkable. People are so damned opinionated and yet so damned lazy. I don’t feel that there is any “self-importance” on my part, just general frustration with the shallowness that pervades the response section of this blog (with the obvious exception of the rambling Steven who is so deep, that he’s left us all in the dark as to what he is actually saying; and of course the deeply entertaining Vince). I can only guess that that comment by you was an indignant reference to the swipe that I took at the USA Today crowd. You seem to have some abnormally finely tuned heart strings. I know there is definitely a pill for that.


    • Johnny Gray says:

      Apparently, the only thing potentially longer than your blog posts are your comments, Mister Ross. Fair enough, you’re obviously a man with lots to say who hasn’t learned the power of saying less with more. Interestingly enough, your lack of brevity is refreshing in this 24/7 news cycle of pithy daggers.

      It’s easy to have an opinion: simply open your mouth and let your ass do the talking. It’s hard to develop an opinion, since it requires putting ideas in your head which haven’t already found a comfortable place to hide.

      Let people off the hook. They don’t have to read the opinion. Facts aren’t really facts. Opinions aren’t the be all end all, especially opinions drafted by spoiled men and women in robes who have left behind them the ongoing terror of facing unemployment, at some point in their life. That said, I thank you for taking the time to read the opinion of Justice Roberts, and break it down for the rest of us lazy mortals.

      I look forward to your next blog. Please don’t wait so long between posts. Regards (whatever the fuck that means).

  12. Edwardo Ross says:

    It’s called Xanex.

  13. Vince says:

    Ed, how do you think Roberts will vote when a woman’s right to privacy is tested in abortion? The Court ruled that a right to privacy under the due process clause of the 14th Amendment extended to a woman’s decision to have an abortion, but that right must be balanced against the state’s two legitimate interests in regulating abortions: protecting prenatal life and protecting women’s health.

    Roberts was Rehnquists clerk, and was against it. Scalia has written in recent years that a woman’s right to abortion is not protected by the 14th amendment. What say you?

  14. Don says:

    I like this Edwardo guy. Seems like a total bullshitter like me. I bet he gets all the chicks, like me. Edwardo, how many was the most chicks you banged in the same day? I got 4 once. I pulled a trio and then later that day, tired and out of juice, I managed to see this little hottie and I had to have her. She was quickly under my spell. if I didn’t nut, does that count though.

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