Instant Reaction at 35,000 Feet: The Health Care Cases

June 29th, 2012

I write this blog post aboard American Flight 90 from O’Hare to Heathrow. I’m on my way to London. I suppose this is quite fitting. As the Supreme Court has held that the taxing power is (damn near) absolute–or that is at least what I gleaned before I took off.

Let me take a step back. My flight was scheduled to take off at 9:12 Central, 10:12 Eastern. I was fairly certain that I would not be able to get the opinion before I took off. But thanks to the tireless and diligent gchat messages from Militza and Corey, I was able to get the gist of the opinion. Alas, I took off before the PDF was posted. As best as I can tell the Supreme Court’s site was beyond flooded. SCOTUSBlog was not able to upload the PDF.

So, here is what I know.

The vote was 5-4 to uphold the individual mandate. And not the 5-4 you are thinking of. Chief Justice Roberts joined Justices GInsburg, Breyer, Sotomayor, and Kagan, to hold that the individual mandate is a valid tax! And Justice Kennedy authored the lead dissent. He would have thrown the entire frickin thing out.

But hold your horses. Congress can’t compel me to buy broccoli or a General Motors vehicle (I write this line as I am flying over Detroit.) As best as I can tell, there were also five votes that the individual mandate violates the Commerce Clause.

So Chief Justice Roberts, that master illusionist, that cabalistic evil dictator from the Bench, was the DECIDING VOTE. Anthony Kennedy, the ever-present swing voter solidified his libertarian bona fides. But it didn’t matter. I saw one email bounce on the conlaw list prof that said another Justice Roberts switched in time to save 9. A response said that this is not to be unexpected in light of Roberts’s vote in Comstock. Perhaps.

Jeff Toobin may have to rewrite his book. Hell, I need to rewrite my book. Well, not really. But kinda. My agent was going to send the proposal off today. Before I took off I was able to email him quickly enough to ask him to hold off. I’ll revise it.

But, does the title “Unprecedented” work?

Amy Howe reported that the money quote was: “Our precedent demonstrates that Congress had in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.”

When something is in “our precedents,” that means it is “unprecedented.”

Man, I am currently flying at 35,000 feet somewhere over Cleveland. (Another good point to Shrug). I can just feel Orin and Randy pecking away on their computers. Also, I can hear Jack Balkin feeling very good about himself. This is the argument he advanced from day 1.

The Court upheld the Medicaid expansion, with some caveats (I need to read the opinion to be sure). The Court did not need to reach the severability issue.

What is perhaps most interesting is that the 5 Jusices (Roberts, Scalia, Kennedy, Thomas, and Alito, said the mandate violated the Commerce Clause. I don’t have the opinion so I don’t know how it broke down with respect to N&P, or if there were different opinions. Gah, this is killing me.

Though, Judges Sutton and Kavanaugh get no love–the Court held that the AIA doesn’t apply, and we can resolve the dispute now.

So, it seems that 5 Justices punted on the case in a way that not a single Court of Appeals did. Everyone uniformly said it was not a tax. Oh, would I love to know what Roberts went through. The agony. I guess he called balls and strikes on this one. I wonder if Linda Greenhouse can bring herself to actually praising Roberts.

On a personal level, I am conflicted. I have maintained for some time that I really did not know what I wanted the Court to do. I’ll hold off on saying anything further about this case till I read the opinion.

Well the Tea Party failed in this country. Maybe I can dump some Lipton in the Thames?

Onto Alvarez, which I somehow managed to download before the Supreme Court’s site died.

Update: Oh, one more thought. I’ve seen a number of blog posts about law professors who feel that they are useless in society. One of the more common examples to prove this point is if something goes wrong on a plane. For example, people may scream out, is there a doctor on board? Or an engineer? Or a police officer? Anything really. not a law professor. But today could have been that day. Part of me was toying with the idea of asking the flight attendant for access to the public address system to give a mini conlaw lecture on the ACA case, and what the Court did with it (based on my limited knowledge). I could have provided that invaluable function while everyone on board was sitting in the proverbial dark. I did not do so. But that could have been cool.