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States that had challenged the law and banked on its failure now must scramble to fulfill its requirements before 2014 deadline
After two years of political warfare, three days of intense arguments and weeks of speculation from pundits, the US supreme court still managed to deliver a ruling on healthcare which almost nobody had predicted.
A little after 10am ET on Thursday, the justices issued their 5-4 majority decision, the bottom line of which was to uphold Barack Obama’s Affordable Care Act in its entirety. That was unexpected in itself, as the vast majority of expert opinion held that the court would strike down the whole act, or at least the central plank, the individual mandate that will require people to purchase healthcare insurance or face tax penalties.
But there were bigger surprises both in the detail of the decision and the line-up of the majority who made it. In a twist which wrongfooted both CNN and Fox News entirely, the court ruled that while the individual mandate was indeed unconstitutional under the constitution’s commerce clause, as the 26 states challenging it had argued, it was nevertheless upheld because Congress had the power to impose taxes.
The 59-page majority decision was written by chief justice John Roberts, a George W Bush appointee who had been widely expected to vote to strike down the law. In the run up to the ruling, many observers had predicted that if it was Roberts who wrote the majority decision, them Obamacare was done for.
But instead, he joined the four more liberal justices – Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Elena Kagan – in deciding that the legislation was constitutional. Justice Anthony Kennedy, who had been thought of as the most likely of the conservative judges to back the more liberal position, backed the minority view that the health reforms are unconstitutional.
In his decision, Roberts made clear that the court was not attempting to usurp the political functions of Congress.
“We do not consider whether the act embodies sound policies. That judgment is entrusted to the nation’s elected leaders. We ask only whether Congress has the power under the constitution to enact the challenged provisions,” he wrote in the judgment.
“It is not our job to protect the people from the consequences of their political choices,” he added.
Key to the ruling was his conclusion that Congress’s tax power was enough to uphold the law, a compromise position described by legal commentators as “threading the needle” between the two competing factions of the court.
“The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness,” the judgement said.
The ruling means that the Obama administration can go on implementing provisions of the law which will not be fully in force until after 2018. But already, a slew of reforms are in place to make healthcare more affordable and accessible.
Obama is now counting on Americans growing to like the reforms as they kick in and people benefit from a law that extends insurance coverage to 50 million Americans who were priced out of the market and ending a slew of immoral practices that led to people losing their homes to pay medical bills after their insurance was cut off.
While opinion polls consistently show more Americans opposed to Obama’s reforms than in support of them, particularly the individual mandate, some elements are popular.
These include a requirement for insurance companies to include young adults up to the age of 26 to be included on their parents’ policies, the end of the practice of insurance companies cutting off coverage to people in the midst of treatment for serious conditions – which was widely condemned as immoral – and the barring of discrimination against people with preexisting conditions.
“If you ask people what they think, it’s very predictable,” said John Culhane, director of the Health Law Institute at Widener University. “Democrats support it, Republicans oppose. But when you parse out the individual parts of it, there are a lot of pieces that people like. Once it comes into place it’ll become background and people will just live with it. In two years from now there won’t be anything for people to yell about.”
Roberts said that in the face of the competing judgements – that the law was unconstitutional under the commerce clause but allowable under taxation powers – then the decision should favour the positive.
“The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads ‘no vehicles in the park’ might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the constitution, courts should adopt the meaning that does not do so,” the ruling said.
Although the liberal justices backed Roberts on the common point about taxation, and so forged a majority to uphold the law, they held that the individual mandate was also legal under the commerce clause.
Ginsburg said in a separate opinion, joined by Sotomayor, that she “would hold, alternatively, that the commerce clause authorizes Congress to enact” the individual mandate. She also said that the constitution’s spending clause “permits the Medicaid expansion exactly as Congress enacted it”.
Four justices opposed the ruling: Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito. Kennedy described the interpretation that the law fell under the taxing powers of Congress as a “vast judicial overreaching” that “creates a debilitated, inoperable version of healthcare regulation that Congress did not enact and the public does not expect”.
The dissenting opinion derided the majority as attempting to keep the court out of the political decisions of Congress.
“The court regards its strained statutory interpretation as judicial modesty. It is not,” the dissenting judges said. “It makes enactment of sensible healthcare regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions.”
Those states which have held off implementing the legislation because of the legal challenge will now have to scramble to meet their obligations, such as the establishment of health insurance exchanges, in time for the introduction of compulsory insurance in 2014.
“There’s going to be a scramble,” said Culhane. “Particularly in the states that challenged the ACA and dug their heels in hoping this would be overturned. They really have to get moving. They don’t have to set up exchanges, but it’s in their best interests to do it, and they’ve lost a while.”