Chief Justice Roberts Mans Up

The Supreme Court has ruled that the Affordable Care Act, often referred to as Obamacare, is constitutional in a five to four decision. The ruling lets stand the personal mandate and most of the other provisions, the exception being the  penalties imposed on states that refuse to expand Medicaid.


This is a major milestone for the Supreme Court, which for the last twelve years has made many decisions for political instead of legal reasons. This ruling, along with Monday's on the Arizona immigration law, may indicate that Chief Justice John Roberts is evolving into an independent jurist who takes his stewardship of the law of the land seriously, and is not a political puppet bent on satisfying his political masters or pursuing a partisan agenda. The different between Roberts and Antonin Scalia is particularly striking.

The interesting thing about the ruling was that the mandate was found constitutional not on the commerce clause, but on the federal government's authority to levy taxes. This was always obvious to me from the beginning, but Democrats avoided characterizing it that way because they didn't want to be painted as creating a new tax. During oral arguments the justices seemed to denigrate the commerce clause as a justification for the mandate, making many think it would almost certainly be overturned. Scalia attempted to equate the mandate to forcing people to buy broccoli.

This was always a bogus argument, because people who don't buy broccoli don't eat broccoli, but people who don't pay for health insurance can still use health care. If you have a medical emergency the hospital is required by law to treat you. Which means that if you have a heart attack while jogging you won't die just because you didn't have your insurance card with you.

The law does not make it a crime to avoid buying health insurance. You just have to pay a penalty if you're not covered. In essence you have the choice between a) buying health insurance and b) paying an obstinacy tax. Furthermore, if you really can't afford to pay for health care the law provides subsidies and exceptions.


People have characterized the mandate as Obama's plan, but during the 2008 presidential primary he frequently voiced his opposition to it. Hillary Clinton had endorsed mandates by 2008 because conservatives, like Mitt Romney and Bob Dole and the Heritage Foundation, had proposed it to counter the health care plan she developed during the first Clinton administration. Obama and many Democrats compromised and reluctantly signed on to the mandate thinking that they could get some number of those same conservatives to be consist and continue to support what they themselves had invented. But almost no Republicans signed on; they only cared about handing Obama a political defeat.

Everyone knows that our health care system is too expensive and inefficient, that hospitals can't be expected to provide emergency room treatment for free, and that people should be responsible for themselves. Republican opposition to the health care law is simply political sabotage.

It's a relief to see Justice Roberts admit that and do what's right for the country.