OK, OK, Enough Already! I’ll Post Something On Health Care

Nothing has happened in the ensuring three months to change my view, expressed in  my original post on the Supreme Court’s health care hearings last March, that that the best predictor of how the Court will rule today is how the lower courts’ have broken down on this case.  That means Republican appointees will vote against the individual mandate, and Democratic ones will support it.  This is not because Supreme Court justices view cases through a purely partisan lens, but because their legal perspective can’t help but be shaped by the same factors that influenced their partisan outlook.  In closely contested legal cases that turn on interpretations of ambiguous words, such as how to define “interstate commerce”, I don’t see a better decision rule.

This is a much guess as anything, of course, but I think it is a reasonable guess given the evidence.   For what it is worth, I think a decision to strike down the mandate, but only the mandate, is consistent with public opinion.  Thus, this recent Pew Research Center poll shows that a plurality of the public disapproves of the health care law in total..

This split has remained relatively consistent since Court’s public hearings on the case last March.  Most notably, the public’s views break down along partisan lines, particularly when it comes to the individual mandate.

This is why I think the electoral implications of today’s decision are likely to be overblown by the media.  Yes, both camps will try to frame the ruling in a way that bolster’s their candidate’s chances heading into November, but as the poll suggests, they will be mostly preaching to their respective choirs.   And while independents are, according to Pew, largely against the mandate, there is some evidence that opinion among this group is more closely divided regarding other components of the law.

Keep in mind as well that surveys consistently show that the economy and jobs are viewed as more pressing concerns by most voters, and that 70% or more of adults surveyed are satisfied with their current health care coverage.  So while I have no doubt that today’s decision is going to generate a torrent of media coverage, we should be careful not to be too swayed by the inevitable partisan spin that will inform much of what is said in the next several days.  Yes, in a close election, one can cite any number of factors as being potentially deciding, but in weighting those factors, health care comes in far below economic concerns.

If the Court renders its ruling on a narrow 5-4 basis, as I’m guessing it will, we will also hear about much damage this will do to the Court’s public standing.   Again, we need to keep this in perspective; public opinion toward the Court, while remaining generally favorable, has nonetheless fluctuated quite a bit in recent years.  I don’t anticipate that a split decision will inflict any lasting damage on the Court any more than its foray in 2000 into election year politics did – and that was viewed as a far more partisan decision.

Finally, the Court ruling today is not the final word on health care reform particularly if it renders a narrow ruling against the mandate, but does not throw out the rest of the law.

So, for now, sit back, grab your morning beverage of choice, and enjoy the fireworks.  Assuming the twitter feed doesn’t collapse, the SCOTUS twitter feed should have the decision almost as soon as it is announced.

10:19  No sooner did I send this than the Court decision came down – but not after CNN misreported the initial results.   In any case, it appears that mandate was upheld under the Congress’ taxing power and not as interstate commerce.  In effect, the Court stepped in and made the argument that the Obama administration should have made.   Interestingly, the Court broke down almost exactly as you might have thought – with the one exception of Roberts, who sided with the majority.   So, the attitudinal model of court decisionmaking gets a pretty big boost here, predicting 8 of the nine justices.  But in the end, it was that 9th that proved decisive.

Now, let the media overreaction begin!

10:29  Ok, I give up.  Again. Now some media outlets are saying that the practical effect of the decision is to undercut the mandate because people who refuse to pay the “tax” will not be penalized by their refusal.  I think I am going to step back and let legal experts actually read the ruling before trying to assess its meaning.

Here’s the actual opinion  by the Supreme Court, fresh from the printing press.

Not surprisingly, there is a LOT of spin going on right now, on both sides – almost all of which is overstating, in my view, the political impact of this decision.  Let’s read the opinion, let the political dust settle, and see where things really stand in 24 hours.  For now, and not surprisingly, everyone on every side sees a silver lining.  Conservatives think the Court just limited Congress’ use of the commerce clause, and strengthened federalism, consistent with recent trends in the Court’s decisions. Liberals are happy the mandate stands, albeit as an illustration of Congress’ taxing power.  Romney is happy to see the ruling take health care off the table, so the election can now be about the economy, where he runs stronger.  Obama is happy the mandate, and thus health care, survived pretty much intact (although the Medicaid restrictions still need to play out).  Roberts is happy because he managed to side with both the conservatives and liberals in one decision.  Even political scientists are happy because the justices ruled pretty much along the lines that their partisan affiliation would have one predict – indeed, on the interstate commerce clause, they ruled exactly as one might predict.

Only CNN is unhappy, because they blew the initial call.




  1. Reading a lot of back-and-forth about Commerce. My reading is that it hasn’t changed in any substantive way because we only know that 5 justices don’t think this passes Constitutional muster, but we don’t know how far outside Wickard/Raich this is. I know Presidential power is your thing, but any thoughts on the Commerce aspect?

  2. Vijay,

    My sense is that this is a big unknown, because it is hard to anticipate just what kind of cases the Court will deal with in the future that have interstate commerce implications. Certainly, in theory, conservatives are pleased with Roberts’ more restricted reading of the clause. By ruling that mandating economic activity is not the same as regulating it, the Court definitely took a step back from the more expansive reading of this clause that had dominated previous court rulings until recently. But in the absence of a concrete case, it is hard to see just how significant this ruling is. Similarly, Roberts also walked the Court back from a more expansive use of the necessary and proper clause. In theory, this is a reaffirmation of the judicially-enforceable limits on Congress power, but we will have to wait and see what the practical implications will be. On the whole, I think conservatives have to be pleased about this aspect of the Roberts’ decision, and liberals a bit worried.

Leave a Reply

Your email address will not be published. Required fields are marked *