HEALTHCARE IN AMERICA (5)

John Roberts, the Chief Justice of the U.S. Supreme Court, "stepped up to the plate" last week (to use an American phrase). In holding that the Affordable Care Act, otherwise known as Obamacare, is constitutional, he affirmed the principal legislative achievement of Barack Obama's first term. More importantly for the longer term, however, he managed to take a lot of the political heat out of the Court's ruling, not an easy thing to do, when four of the nine justices are reliably conservative (and would have thrown the whole thing out) and the other four are reliably not (and approved it). His opinion is notable for an absence of political rant, and for careful legal reasoning. It's worth reading.

There were four issues to be decided, but the crucial one was the constitutionality of the so-called mandate, the requirement to purchase health insurance or pay a fine. On this, the Chief Justice sided with the conservatives in debunking the Government's principal argument, namely that the mandate was covered by the constitutional power to regulate interstate commerce. As he put it, regulating something presupposes that there is an activity to regulate; and, by definition, the uninsured are not actively part of the healthcare insurance market. Accepting the Government's argument would open the door to letting it "regulate" (i.e coerce) lots of other things that people currently don't do (some of which, by coincidence, affect spending on healthcare eg not eating healthy food).

However, having shot down the Government's main justification, he then accepted its fall-back position, namely that the fine is, in reality, a tax, namely a tax on not purchasing insurance. Since Congress has the power to levy taxes, this makes the mandate constitutional. Although President Obama and other politicians had gone to great lengths during the passage of the bill to deny that the fine was a tax, the Chief Justice ruled that it was. He was particularly persuaded by the fact that if a young, healthy, currently uninsured person decided not to purchase insurance, but simply paid the "fine", then that was all that would happen. As would be the case, if he paid his taxes.

The four non-conservative judges would have upheld the mandate under the interstate commerce argument. However, since they also accepted the tax argument, a 5-4 majority held that the mandate was constitutional; Obamacare was saved.

Commentators are now writing reams on the implications of this decision. The most likely one in my view is that the Chief Justice is being pragmatic. Lawyers dislike being cast as the tools of political zealots, and the run-up to this case did that in spades. John Roberts is going to be Chief Justice for many years to come, and he won't want to go through that sort of thing on every case. By emphasising that he wants to concentrate on legal, rather than political, arguments, he has done his country quite a service.

Walter Blotscher