I got this figured out. Stand back. To the rescue! Again!
The conservatives on the Supreme Court are concerned that Obamacare forces individuals to do something they don’t want to do, which is, buy insurance. People would be forced to enter a market that they don’t want to enter. This would go beyond the normal understanding of Congress’s power under the Commerce Clause. Thus, it’s overreach, and unconstitutional.
But the way the law actually plays out in real life — which is to say, in Massachusetts — people still have the option of not buying the insurance. No one forces them to sign a contract. All they have to do is pay a penalty on their income tax return.
And thus the Supreme Court will rule 6-3 (the four liberals, plus Kennedy and Roberts) to uphold Obamacare — saying that it passes constitutional muster not because of the Commerce Clause but as part of Congress’s taxing authority.
[Consider the case of the Massachusetts fellow profiled this week in the Times: Wayne Loder, 53, says he’s healthy, doesn’t eat meat, doesn’t smoke, and doesn’t want to buy health insurance and is upset by the individual mandate that’s part of Romneycare: “The last thing I’m going to do is not pay my rent because I have to pay for some state-mandated health coverage that I don’t think I need.” It’s a pretty powerful statement — except that the core idea of health-care reform is to make health care affordable for everyone so that they don’t wind up losing their homes because of a sudden medical emergency. Loder looks very healthy in the photo, but anyone, and particularly someone in middle-age, could face a sudden medical crisis. In which case someone who hasn’t bought insurance will still get medical care. This is the government’s argument: Loder is already in the health care market, implicitly. The penalty for not buying insurance is handled entirely through the tax return. So it’s a tax.]
C.J. Roberts will surely write the majority opinion and will throw in various grievances and caveats warning Congress that this does not give it the right to do whatever it wants anytime to anyone. Because Verrilli didn’t explain at any point what limit there might be on the Commerce Clause, the conservative justices are only going to go along with Obamacare if they can simultaneously draw some clear lines that circumscribe [is that the word I want?] the government’s power. Roberts will say to Congress: We’re watching you. You’re on notice.
Now, they did spend an entire, seemingly useless day, Monday, discussing whether this is a tax. And no one seemed to think it was. There’s some 19th century notion that the Court can’t even rule on a tax issue until someone has actually paid the tax. So if the Court uses the tax rationale, this 19th century thing will need to be dispatched with, somehow. Which could be tricky. But this is why they get paid the big bucks and are given the awesome robes.
Having said all this, I should note that what I know about jurisprudence could fit inside a quark and that I’m usually wrong about everything (always a great attribute for a blogger). For example, my NCAA bracket has been a disaster since the first Thursday of the tournament. I can’t believe my Gators went paws up like that at the end of the Elite 8. I still have Kentucky as national champion, but who doesn’t? I’m actually glad the Gators lost last weekend, since otherwise they’d have to be beaten by Kentucky for the fourth time this season. Enough of that. Maybe next year, when all those Kentucky players move on to the NBA.