The More I Read, the Less I Like Chief Justice Roberts

Today I have finally gotten around to actually reading the opinions in National Federation of Independent Business v. Sebelius, the landmark health-care cases from a week and a half ago. So far I'm most of the way through Chief Justice Roberts' opinion, and boy is it a doozy. It starts with a very long, and very boring, civics lesson about the basic idea of "limited government of enumerated powers," and how courts aren't supposed to judge the wisdom policy, etc. etc. Then there's a treatment of the Anti-Injunction Act question, which is all perfectly boring as well, though basically right as far as I can see (basically, since the AIA and the ACA are both creations of Congress, Congress' decisions as to labeling [tax/penalty] matter, whereas they don't for the constitutional question). Then there's the discussion of the individual mandate under the Commerce Clause, and it's just awful. It's not actually true that he doesn't acknowledge the existence of the Necessary and Proper Clause argument, which I consider a slam-dunk case. He mentions the fact that it's the guaranteed-issue and community-rating provisions that necessitate the minimum-coverage provision. But then, approximately a page later, he pretends like he's forgotten about that. My favorite part was where he said that not only would upholding the mandate under the Commerce Clause lead to broccoli mandates (which is apparently the definitive test for what we know not to be true), but upholding it on Necessary and Proper grounds would do so as well. I don't know why; there's a perfectly good distinction between a health-care mandate and a broccoli mandate, which is that the former is necessary not just to make the world a better place in some vague way like making people healthier (which is how conservatives always worry the broccoli mandate will be justified) but specifically necessary to carrying into execution a particular entirely valid use of one of Congress' other powers. So, you know, not impressive.

But the thing that just made me exclaim, "wait, what?!" and that is the occasion for this blog post is the following passage:

"Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage."

Ummm...? Is the entire non-elderly population with income below 133% of the poverty level not a reasonable definition of "the neediest among us"? Okay, sure, it's a broader definition of that group than certain previous ones, and it places more emphasis on the lack of resources to meet one's needs than the presence of particular adverse circumstances, such as disability, blindness, or dependent children. But still, don't people routinely refer to people as "the neediest among us" just because they're, you know, poor? Isn't that typically sort of how the phrase is understood? New Medicaid, just by itself, is clearly doing a very bad job of being a universal health insurance program, if that's what it's trying to be. Now sure, it's true that the rest of the Act includes several other programs designed to fill in the gaps left by the non-comprehensive programs Medicare and Medicaid, and it's also true that it modifies Medicaid in such a way as to shrink those gaps. But that doesn't mean Medicaid isn't still about providing health care for poor people, as it's always been. Seriously, this paragraph is jaw-droppingly bad. To all those liberals out there who are telling pollsters that you like John Roberts, you might want to read this.