The details of what happened are as follows. The Court faced four questions, of which the most important was the constitutional validity of the minimum coverage provision of the law, and on that question the Court held, 5-4, for the government. Roberts' majority opinion said that, for these purposes anyway, the so-called individual mandate was a valid exercise of Congress' taxing power, and the four liberals agreed with him; however, Roberts also opined that this provision was not a valid exercise of the Commerce Clause power, even extended through the Necessary and Proper Clause, in doing so agreeing with the Court's four dissenting conservatives. Since the mandate was not struck down, all the questions regarding severability were moot. Meanwhile, despite upholding the mandate under the taxing power, the Court rejected the argument (which neither party was making) that it was a tax for the purposes of the Anti-Injunction Act, which requires anyone suing to challenge a tax to wait until that tax is collected before doing so. Finally, the Court more or less upheld the expansion of Medicaid contained in the Act, though it said that states must be given the opportunity to accept or deny only the additional funding that would accompany said expansion. Congress could not, in other words, force states to accept the expansion or lose all their existing Medicaid funds.
The Court's four liberals, Justice Ruth Bader Ginsburg writing for herself and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, agreed with Roberts that the mandate was valid, and that it was valid under the taxing power, but not really about much else. (Well, except for the whole Anti-Injunction Act thing, which was pretty much unanimous.) They would've upheld it as a mandate directly, under the Commerce Clause. Two of them, Ginsburg and Sotomayor, also took issue with Roberts' limitation of the Medicaid expansion, though Breyer and Kagan sided with the Chief on that issue.
The dissenters, namely Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, and Clarence Thomas, would have thrown out the entire law. Basically, they rejected all of the arguments in favor of upholding the mandate, and also found the Medicaid expansion unconstitutional, and from there they simply found that those provisions were not severable from the rest of the law, or even that some sort of line could be drawn around those provisions and those directly related to them.
So, what do I think? Well, as usual, I'm with Ruth Bader Ginsburg, who is almost certainly the Justice on the Court right now whom I trust the most to reach the correct result in any given case. At the very least, in my opinion, the minimum coverage provision is necessary and proper to bringing into execution a completely valid regulation of interstate commerce, namely the guaranteed-issue and community-rating provisions preventing insurance companies from denying coverage to or giving discriminatory prices to those with pre-existing conditions, into effect. I'm not sure whether it's valid solely and directly under the Commerce Clause, but to my mind the Necessary and Proper case is a slam dunk.
As for the Medicaid expansion, as Matt Yglesias says, the logic used by Roberts, Breyer, and Kagan to limit the Medicaid expansion (which, by the way, wtf Breyer and Kagan?) is a pure invention of the moment with no foundation whatsoever in the text of the Constitution. Medicaid is a valid exercise of Congress' spending power. It has long been held that Congress may say to the states, here's some money, and here are some conditions regarding how you have to use this money, and if you don't follow those conditions then we'll take our money back. That's one of the foundations of state-federal cooperation, and has been for basically ever. The idea that, because states rely rather tremendously on Medicaid funding, Congress mayn't change the conditions attached to Medicaid is just absurd. Yeah, states rely on Medicaid funding. But surely Congress could just take that funding away, despite that reliance? And if it could do that, why can't it threaten to do that if the states don't go along with the ways in which Congress wants them to spend its money? This is not a case like South Dakota v. Dole, where Congress threatened to take away some of the highway money states relied upon if they didn't enact various policy changes, specifically a drinking age of at least 21, that Congress wanted. Oh, and the Court upheld the National Minimum Drinking Age act in that case. This should be easier still, since it's all about Congress telling the states how to spend the very dollars Congress is giving them. The idea here seems to just be that, well, this would put the states in a tough position, and hey, we like states, so it's not cool. But that's just something the Court is reading into the Spending Clause from scratch.
Finally (because I don't see much point discussing the Anti-Injunction issue), we reach the question of severability. It wouldn't be relevant if I were writing an opinion in this case, since I wouldn't strike down any of the law, but since the dissent discussed it I'll address it as well. To do so, I must (unfortunately) quote a bit of Scalia:
Some provisions, such as requiring chain restaurants to display nutritional content, appear likely to operate as Congress intended, but they fail the second test for severability. There is no reason to believe that Congress would have enacted them independently. The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which.Now, my understanding of the "would Congress have enacted them independently?" test is quite different from the one Scalia uses here. Suppose, for instance, you take seriously the notion that the various regulations of private insurers would, in the absence of an individual mandate, create a death spiral. In that case, it's reasonable to think that Congress wouldn't have enacted the regulations if it knew the mandate wouldn't be there; there wouldn't be any point. Scalia seems, on the other hand, to be not considering Congress as a kind of abstract political institution but rather to be psychoanalyzing the details of the political compromises, log-rolling, etc. that went into passing the bill. He doesn't think, in other words, that it's very likely there would've been the votes for the law if you took out the bits he thinks are themselves unconstitutional. Or, as Yglesias puts it in his post on this same subject, the legitimate parts of the Act are deemed invalid because Antonin Scalia thinks they were "part of some kind of unseemly horse-trading."
Like I said, I would analyze this in terms of whether Congress, the institution, presumed to be basically sort of rational, would have had any plausible reason to desire to pass the law if it knew that a certain part of it was unconstitutional and would be struck down. After all, the necessary majority of both Houses did vote to enact every single provision of this law, and the President signed every single provision of this law; in my opinion, we have to take that at its word, and it's impossible to meaningfully second-guess the actions of those 270 actual human beings. And in this case, the invalidity of the minimum coverage provision would have no bearing on the reasons for which Congress might've wanted to enact, say, funding for community health centers. They're just separate policy questions.
Now, if it were well-known in a certain case that there was a specific deal made, where one faction agreed to vote for this provision in exchange for another faction voting for that provision, things might be a little different. But that's not what's going on here. There might've been a few such deals around the mandate, but not extending through the entire law. Rather, the law had a considerable omnibus aspect, with its bulk consisting of a whole bunch of little reforms to the nation's health care system that lots of people thought were a good idea. In fact, from my memory of the political debate around the Act's original passage, Republicans kept saying that, well, you know, 80% of the stuff in this law is stuff we all agree about, it's just the 20% that's causing controversy. And that 80% was the community health centers, and the dentist deregulation, and the requirement that restaurants display nutritional information. The 20% was the mandate, and perhaps also the details of the subsidies and the regulations of private insurance companies. So an actual examination of the details of the political process suggests that, far from provisions that would only have been acceptable given the mandate, all this stuff was itself the sweetener, that people might not have been able to swallow the mandate and the complex of regulations around it without.
So, basically, Scalia's wrong. Very, very, wrong. But what else is new?
EDIT: Since I haven't actually read any of the rulings, except Justice Thomas' two-page dissent, I missed this gem from Roberts regarding the Medicaid expansion:
"Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system....Spending Clause programs do not pose this danger when a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds. In such a situation, state officials can fairly be held politically accountable for choosing to accept or refuse the federal offer. But when the State has no choice, the Federal Government can achieve its objectives without accountability."I hate this kind of analysis. I think right-wingers love it. I think similar kinds of thinking are behind the so-called "non-delegation doctrine," this idea completely unsupported in constitutional text that "a delegated power may not be delegated," and so Congress can't tell the President to determine the appropriate law on some topic. And I think it's a load of bunk. The mechanisms of political accountability are spelled out in the text of the Constitution. Everyone has to be elected. It's up to the people to keep proper watch on the goings-on of their government, and it is emphatically not the province of the judiciary to police the government to make sure things don't get too complicated for us little folk to understand.
The argument in this case is that, since the federal government isn't enforcing the policies Congress has passed (states are), and since the states didn't pass the policies they're enforcing (Congress did), voters won't know whom to blame if they don't like the results. In particular, since acceptance or denial of funding is not a serious choice if Congress can take away all Medicaid funding in the case of a denial, the state government never really makes a clear choice. If the choice is serious, if denial is not met with a "gun to the head" but rather just with a continuation of the status quo, then people can fairly hold state officials politically accountable. That's the theory, anyway.
But, first of all, that's completely irrelevant, and second of all, it's wrong on the facts. I'm pretty sure that people know Medicaid is a national program. The fact that state governments do the enforcing doesn't leave people confused about what's really going on. If people don't like the Medicaid expansion in the PPACA, they'll punish Congress, and maybe also the President. And, oh look, a whole bunch of Democratic Congressmen who voted for the PPACA lost their seats in the first Congressional elections thereafter. Clearly, this state-coercing trickery made it just impossible for anyone to figure out whom they ought to blame. And that sort of gets at the point, that it's ridiculous for a Court to try and tell when an arrangement like this will make it hard for voters to know what's going on. Especially since it's not in the Constitution whatsoever, it's just some notion of fair play that Justices often like to enforce.
The truth is that Congress has the power to give money to the states, under its spending power. Obviously, it also has the power not to give that money to the states. Therefore it has the power to give money to the states if and only if the states promise to use that money in ways Congress likes. In fact, I probably think Congress has the right to give money to the states if and only if any condition regarding the state's policies are met, though that's not even important for this case. Given this ability to give money with strings attached, the idea that Congress can't change the strings attached seems patently absurd. One good way to tell that Roberts' analysis is flawed is by noticing the phrase "...States' existing Medicaid funds..." in this part of his opinion. There are no existing Medicaid funds, except in that Congress keeps appropriating funds to be given to the states as part of Medicaid.
So part of what we've got going on is inaction bias*, the assumption that any decision to not act isn't really a decision at all. But the past should be irrelevant; spending in the present should either be valid or be invalid, based on what that spending will do in the present. Congress is constantly deciding to provide the states a certain amount of Medicaid money with certain strings attached; it may at any point decide to provide a slightly different amount of Medicaid money with slightly different strings attached. So long as the new strings would be themselves constitutional if they were applied from scratch, the change in the strings should be constitutional as well.
SECOND EDIT: One thing I should add to this analysis is that there was one part of Chief Justice Roberts' opinion that I liked a whole lot. I once got into an argument with Randy Barnett, the libertarian constitutional scholar who sort of led the charge against the PPACA, about whether the fact that Congress, in writing the bill, went rather far out of its way not to call the individual mandate a tax should be controlling in determining whether or not it is a tax and therefore valid under the taxing power. Barnett said it was controlling, among other things on similar (though arguably even worse) "accountability" grounds as those I discussed above. Congress called it not a tax in order to avoid a political liability, he said; now they have to pay the price for that. Otherwise you could go around not calling things taxes that really were, and having it be okay, and then everything would just be horrible. I'm paraphrasing slightly. I, of course, said that if it acts in the real world like a tax, the Constitution shouldn't care what label has been stuck on it.
And that's where John Roberts came down. His opinion includes a nice little segment about how the way something's described in legislation just doesn't control whether or not it's within the ambit of the taxing power. That's a nice bit of anti-formalism, of looking beyond the words to see what's really going on, and I'm very pleased to see it
*Oh, and of course it's worth mentioning that the entire conservative argument against the mandate's validity as a Commerce Clause power sort of thing, which Roberts endorsed, was based on a giant pile of inaction bias. The idea that there's some great and terrible distinction between "regulating activity" and "regulating inactivity" is silly enough; the idea that such a distinction is recognized in the Constitution, which makes no reference to that concept anywhere, is even more ridiculous.
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