The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.
I’m not going to lie and say I wasn’t surprised – the minimum coverage provision being upheld through the taxing authority of Congress. For what its worth I always thought that the argument for it legitimacy under the Commerce Clause or the Necessary and Proper Clause was very weak. My argument was that the mandate was clearly constitutional under the ability of the federal government to tax individuals.
Here is something I wrote during the deliberations (emphasis added):
I’m not a legal expert, but from my understanding for all intents and purposes the mandate is essentially a tax – if you don’t carry health insurance (and don’t qualify for Medicaid, and numerous other exemptions) then you’ll be assessed a tax penalty, which is akin to a “negative” tax credit. Your federal tax liability will be higher than it otherwise would, just as with a tax credit your federal tax liability would be lower than it otherwise would. I could understand that for the purpose of what the Anti-Injuction covers, the mandate is not a traditional tax. If SCOTUS decides that it can hear the case, I expect the laws opponents to trumpet the decision as proof that the mandate isn’t an exercise of the government’s ability to tax. However I think such an assertion would be too much of a stretch, as the question before the court is a rather narrow legal consideration.
More on how the mandate works like any other tax incentive (or disincentive):
Which is to say, the minimum coverage provision works it’s incentive mojo the same way that any tax-related incentive works – by encouraging you do something, whether it’s owning a home, having children, buying a hybrid vehicle, operating a small business, etc. Not doing any of the above has the same consequences as not having health insurance under the MCP in the Affordable Care Act; you owe more in federal taxes.
Moving on from this point I hope that we realize that this does not mean the end of health reform, nor even whether or not the ACA will be around by 2014. We still have elections, and despite the jubilee felt by the laws proponents we still have problems that will need to be addressed. Yet for now, at least, the official question of the Affordable Care Act’s constitutionality is laid to rest.
*Update: fixed link.