Supreme Court Ruling on Health Care Reform

I have not previously commented on the SCOTUS ruling on health care reform because I wanted to read more about it.  I’ve now done that.

Although I do not like PPACA (the health care reform bill), I initially opposed the effort to contest its constitutionality.  Whether or not I liked the bill, the unusual tactics used to pass it or the fraudulent accounting used to justify it, it had passed legally.  I also thought it was strange, at best, to attack PPACA with an argument that would lead to the conclusion that the government could create a mandatory government-run program but not require that people acquire similar services if they are available only in a private market.

As the debate continued, my position modified somewhat.  I recognized that there was a legitimate argument against the constitutionality of PPACA.

As explained below, the four parts of the Supreme Court ruling make sense to me. I can’t say that I would have voted with Chief Justice Roberts because I have not done the background reading and thinking that a Supreme Court justice needs to do to rule on such issues.

1)     As a result of this debate, I’ve learned about the unreasonable interpretations that have been made regarding the Commerce Clause of the US Constitution, starting in 1942 with the Wickard v. Filburn decision.  In its decision on PPACA, SCOTUS rejected the Commerce Clause argument made by the administration.  That is encouraging, but I am concerned that the SCOTUS ruling on PPACA might not preclude continued abuse of that clause, because the SCOTUS decision might be interpreted narrowly, might be ignored or might be reversed in a future case.  I’m confident that I would have voted with this part of the decision.

2)     Secondly, the administration attempted to blackmail states into adopting PPACA’s major expansion of Medicaid, by pulling unrelated Federal funding away from the states that did not adopt the expansion.  SCOTUS ruled such blackmail to be unconstitutional.  Unfortunately, it appears that the wording said that the government could not withhold other Medicaid funding if a state chose not to adopt the expansion.  I would have preferred wording that rejected such blackmail in general.  Although I like this part of the decision, I don’t know if I would have voted for it.  Although I think such blackmail is unquestionably wrong, it is not clear to me that it is unconstitutional.  As noted above, I have not done the requisite reading and analysis to reach such a conclusion.

3)     The Anti-Injunction Act (AIA) prohibits lawsuits from challenging a tax that has not yet been assessed.  The least publicized aspect of the PPACA decision is that SCOTUS ruled that, in the case of PPACA, such a lawsuit could be filed because PPACA included specific wording that it was not to be treated as a tax.  I think I would have supported this interpretation, but I am concerned that the Anti-Injunction Act may have unintended detrimental consequences.  It did not anticipate taxes interwoven with ancillary, costly and difficult-to-reverse implementation requirements.  AIA seems somewhat similar to disallowing anti-worm computer protections (you couldn’t take corrective action until the worm has activated in your computer).  I hope Congress modifies AIA so it cannot be used to protect a major controversial program.  But I don’t think that is going to happen.

4)     Lastly, of course, SCOTUS ruled that PPACA is not an “individual mandate” but rather imposes a tax burden on anyone who does not participate.  I think that is a logical position.  It then begs the question “What is a constitutional tax?”  I don’t know what restrictions might exist.  But there seem to be relevant precedents.  For example, the high sales tax (N.B., this is not a Federal tax) on the purchase of cigarettes is presumably justified because people who purchase cigarettes, as a group, add to our health costs, at the expense of other citizens.  A similar argument could be made that people who don’t buy health insurance could add to our health costs, at the expense of other citizens.