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The Importance of a Backup Plan: SCOTUS Upholds Individual Mandate

By Robyn Hagan Cain | Last updated on

Thursday, the Supreme Court upheld the Affordable Care Act in a 5-4 decision. Chief Justice John Roberts, surprisingly, was the swing vote on the Court.

In March, when everyone began handicapping the Affordable Care Act arguments, the question was whether the Court would justify the individual mandate under the Commerce Clause.

But the Obama administration didn’t win this case on its argument that the individual mandate was permissible under the Commerce Clause. It didn’t win based on the Solicitor General Donald Verilli’s backup argument that healthcare coverage fell under the Necessary and Proper Clause.

Ultimately, the Court upheld Obamacare on a third argument: The individual mandate is a tax.

Chief Justice Roberts, in the majority opinion, wrote:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes ... That, according to the Government, means the mandate can be regarded as establishing a condition--not owning health insurance--that triggers a tax--the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress's constitutional power to tax.

Republicans are disappointed with the Chief Justice's interpretation. But while characterizing the individual mandate as a tax may seem like a stretch to some people, Roberts noted that it doesn't matter whether the Court reached the most natural interpretation of the mandate, only whether it is a 'fairly possible' one."

The fact that the individual mandate did not survive under the Commerce Clause is also important. During oral arguments, Justice Antonin Scalia questioned whether upholding the individual mandate would give Congress unlimited power; if Congress could force individuals to buy health insurance because everyone eventually enters the healthcare marketplace, couldn't the Government force everyone to buy broccoli because everyone eventually enters the food marketplace?

Justice Roberts dismissed the idea of the limitless Commerce Clause, stating, "Congress thought it could enact [the individual mandate] under the Commerce Clause, and the Government primarily defended the law on that basis. But ... the Commerce Clause does not give Congress that power."

(On the flip side, does that mean that Congress can run wild under its taxing power? To use Justice Scalia's broccoli example, could Congress impose higher taxes on those who don't want to eat their vegetables?)

There are a lot of people who are upset by this decision. But once the talk of Roberts being the new Souter dies down -- and that will take a while -- we suspect that the Chief Justice's ruling today will restore some of the public's waning faith in the Court.

Whether or not you like the outcome, no one can claim that the vote fell along party lines.

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