Will Wilkinson Nails It

Wow. Will Wilkinson wrote this before the Supreme Court’s ruling on the health care insurance mandate was released and it pretty much nails exactly what happened. I said at the outset that I wouldn’t be shocked if they upheld it under the taxing power, but I certainly didn’t come this close:

The court will uphold the constitutionality of the individual mandate. Roberts, writing for the majority, will offer a hyper-causuistical decision that discovers in standing commerce clause precedent principled grounds for ruling in an insurance mandate while ruling out congress’ power to mandate purchase of any goods and services that don’t begin with an “i” and end with an “e”, and aren’t ice or iodine. To brighten the dashed hopes of conservatives, the “Why there can never be a broccoli mandate” section of Roberts’ decision will on the whole narrow Congress’ commerce-clause regulatory powers. However, in their very great relief, and schadenfreude over bitter conservative disappointment, liberals will largely miss the minor revolution contained in Roberts’ sly scholasticism.

Spot on. The commerce clause analysis really does set the stage for greater limits on congressional authority in future cases, despite the outcome in this one.

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  • Randomfactor

    Which makes the next few SCOTUS appointments even MORE critical.

  • David C Brayton

    I was pleasantly surprised. While I favor universal health care, I came to the conclusion that it was unconstitutional under the commerce clause. I never paid attention to the tax and Spend arguments.

    It seems that J-Rob and I were of the same mind. But his analysis under the tax and spend area was a bit daft. I suspect that his analysis will in the future, be treated as binding precedent but most other laws will be distinguished.

    But his thoughts regarding the commerce power were much more persuasive. He got a substantial change in the commerce power jurisprudence (limitation) yet the mandate was still upheld.

    Twenty five years from now, as Americans, we’ll think “how could we have been the richest country in the world and not had universal health care?”

    Who woulda thunk it? J-Rob is a results-oriented jurist! Some things are just too important to let that Constitution get in the way.

  • d cwilson

    I always thought the taxing argument was the stronger one than the commerce clause argument. It is, after all, like the child-dependent deduction in reverse. Instead of getting a lower tax for having children, you pay a higher tax for not buying insurance.

    I must admit, I did not see Roberts supporting it or using it as a chance to chip away at Congress’ powers under the commerce clause. In hindsight, it seems clear as this SCOTUS has been anxious to limit the commerce clause powers for quite some time.

  • screechymonkey

    Ed, I think it’s the limitations on the spending power that have the potential to be more troublesome. The decision isn’t very clear on exactly when changes to federal-funded, state-administered programs become “coercive.”

    The Commerce Clause precedent doesn’t strike me as that troubling. It arguably isn’t precedent at all; Roberts’ opinion on that issue is arguably dicta. And the activity/inactivity distinction that it relies upon is fairly easy to manipulate. Ginsburg tries gamely to do so in her opinion, characterizing the decision not to buy insurance as activity — that seems a little strained to me, but the point remains that if in the future a majority of the Court wants to save an act of Congress without overruling that part of NFIB v. Sebelius or distinguishing it as dicta, it can certainly be done with a straight face.

  • Given this decision and its limits on the commerce clause, as well as Scalia’s newly re-aligned position on the commerce clause, do you think if there were a 2nd Raich, it would reach an opposite result?

  • Johnny Vector

    My question exactly, Mr. Schwa!

    Personally, I bet they would find ways to twist the very fabric of logic itself in order to once again find in favor of the justice department if a second Raich were put before them. Or just deny cert and pretend that Raich doesn’t conflict with yesterday’s decision.

  • screechymonkey

    How to rationalize Raich?

    What they’ll say: Growing or buying pot = activity.

    What they’ll think: Drug laws good, Obamacare bad.

  • acroyear

    “Greater limits” on the commerce clause? Not likely. It really gives breathing room for Scalia and Alito to continue to use the Commerce Clause to further their own desires in the law enforcement realm. Scalia may have written a huge document saying Wickard was wrong, but now that the 500page document isn’t part of a binding precedent, he continues to have wiggle room to flip-flop-flip back again to a pro-Wickard stance the next time a drug issue comes up.

  • baal

    The ACA was clearly constitutional under the commerce clause. Health Insurance is a freaking 17% of the US GDP!

    I assume you’re all bothered by the “must buy a service” part? In that respect, it does seem more like a tax.

    liberals will largely miss the minor revolution contained in Roberts’ sly scholasticism

    The rightist talking points in the immediate aftermath also suggest non-liberals are missing the point.

  • Michael Heath

    baal writes:

    The ACA was clearly constitutional under the commerce clause. Health Insurance is a freaking 17% of the US GDP!

    And Justice Ginsburg let the conservatives have it in her concurring opinion by noting the hypocrisy of Scalia claiming in Raich that a very sick lady growing weed and using it somehow rose to interstate commerce but the regulation of the health insurance industry does not.

    Sometimes the non-meritorous side wants you to get lost in the weeds, precisely because it’s a no-brainer Obamacare is constitutional under the commerce clause unless the court is prepared to overturn an enormous amount of regulations. Which the conservative movement desires to do, though few of their leaders explicitly assert should be done (they instead pander and dance). Including the conservative Supremes with the exception of Tea Bagger Partisan Uncle Justice Clarence Thomas who is overt about the extreme extent of his contempt for commerce clause precedents.

  • Chris from Europe

    It’s amazing how many people including on the left completely lose it over the ACA. I see people calling it fascism, lying their ass off about provisions. People claim that private insurers will become rich through the ACA when there is absolutely no evidence for that and given its provisions it’s not a reasonable assumption.

  • Pierce R. Butler

    baal @ # 9: … the “must buy a service” part… does seem more like a tax.

    Suddenly it occurs to me that this opens the door for privatized corporatized tax collection.


  • Chris from Europe


    Like virtually any other tax benefit.

  • jesse

    I never saw how requiring people to buy health insurance was any different than requiring that they buy car insurance — and be fined for not doing so, which every state does. Or they just don’t let you drive. Yes I know, theoretically you need not drive, and theoretically I could go through my whole life and never need a doctor. The odds of either are rather small. (The only case you could make for not needing a car are in places like NYC, Boston, or San Fran, a rather small part of the population overall).

    @David Brayton: what part was unconstitutional, in your opinion, given that a) states require people to buy car insurance, and I haven’t seen a challenge to that and b) it’s pretty hard to argue that health care isn’t interstate commerce, especially in areas like NYC where you might get treated at facilities near each other that cross state borders. (New Jersey and Connecticut, to name two).

    The thing that I found most unfortunate about the new law was that it didn’t attack the costs of insurance the simplest way: price controls. Germany, Switzerland and the Netherlands do something along those lines — you just say, here is how much you can charge for insurance. Since you have to cover everyone, and you have to cover everything, you have to compete on something besides price and “hidden” charges (i.e. the nasty surprise almost everyone in the US has had when something you need isn’t covered). So they compete on the basis of efficiency and (gasp!) service to the customer. The industries have been forced to innovate quite a bit — and I don’t mean innovating new reasons to let people die.

    Those price controls also go a long way to controlling the costs of health care for the simple reason that you needn’t go to the ER to treat stuff that is a) not serious enough or b) so serious that you have to go to the ER because you waited too long.

    IANAL, but here’s an interesting question to me: if I am an insurance company, and I refuse to fund a treatment, and someone dies, why is that not a crime? If a person came bleeding to my house after being stabbed and I said “no, I won’t call an ambulance because of the pennies for the phone call” I’d at least face a wrongful-death suit, if not charges of reckless indifference to human life (manslaughter).