In 2008, after Arlen Specter switched parties in an ultimately failed attempt to save his Pennsylvania Senate seat and Al Franken out-lawyered Norm Coleman to win the Minnesota Senate seat, the Democrats had the 60 votes to pass ObamaCare. They no longer needed to woo a Republican, such as Olympia Snowe of Maine, to end a GOP filibuster. With a big Democratic majority in the House, the bill was going to pass.
Of course, the bill was passed with an individual mandate to purchase insurance which its sponsors argued ferociously was not a tax. A tax rather than a mandate would have meant Obama violated his campaign pledge not to raise taxes on anyone but the wealthy, and might have made the bill unpalatable for a few endangered Senate Democrats running for re-election in 2010 or 2012.
With the bill’s passage, there were only two ways to stop its full implementation, scheduled for 2014. One was for a successful challenge to the bill in the courts. The other, and seemingly more difficult, path was for the Republicans to gain control of both houses of Congress and win the White House in 2012. They would then use the budget reconciliation process themselves to eliminate those provisions of the bill that were subject to budget reconciliation. The idea that the bill could be fully repealed by the Republicans in Congress was a pipe dream, since if they took back control of the Senate, there was no chance to get to a filibuster-proof 60 votes in 2012 in the Senate.
Full defeat of Obamacare was possible only if the Supreme Court threw out the legislation. When oral arguments were heard at the Supreme Court in March, most observers thought things went very well for the states which were challenging the legislation. At a minimum, it appeared that the individual mandate was in serious trouble. If the mandate were thrown out, then the Court would need to decide if certain other provisions would also go or whether, because there was no severability clause in the legislation, the entire bill would be stuck down.
On Thursday, Chief Justice Roberts read the opinion of a sharply divided 5-4 Court. Roberts sided with the four liberals and upheld Obamcare, declaring that the penalty associated with failure to buy health insurance could be construed as a tax and was clearly under the purview of Congress, even if they avoided labeling it as such on purpose.
For Roberts, often chided as a strong conservative by the likes of Court writers such as Jeffrey Toobin, to concur in upholding Obamcare in this fashion is a bit of a shock. The four dissenters on the Court accepted the explanation of the Obama administration and Congress that the mandate was not a tax. They found, like Roberts, that the commerce clause could not be construed to allow the mandate — in essence it did not allow regulation of economic inactivity. The four dissenters would have invalidated the entire bill due to the lack of a severability clause.
Roberts’ failure to join with the other conservatives on the Court has been explained away as a minor loss associated with a major victory for the right by a few commentators due to the commerce clause language. Since I think the chances that Obamacare will now become implemented law are high, I do not see it as a small, short-term loss for the right exchanged for big future gains in jurisprudence on other issues.
Thirty million new dependents have been created for a new federal welfare program that could become one more huge budget buster, especially if millions decide to only sign up for insurance when they actually need insurance, or if corporations drop their health coverage and choose to pay a fine, moving many of their employees onto the federal rolls. A tipping point between the role of government and the citizen has been passed.
The four dissenters would have invalidated the entire bill. Roberts threw one bone to the right, ruling that the Medicaid expansion was coercive — that if states did not agree to the expansion, they could not suffer any reduction in federal participation in the program for those already receiving benefits. This will now open the Medicaid expansion to fights on the state level, where GOP governors are in charge of more than half the states.