The End is Nigh: The ACA Is Upheld (Sort Of)

Today’s blog post writing hasn’t gone so well. I thought of writing a post on the correspondence between Voltaire and Rousseau, as a way of reminding ourselves of the 300th birth anniversary of the latter, then, perhaps commenting on the connections between Frankenstein and Romanticism, and then finally, noting Aquinas’ resolution of the theological problems caused by cannibalism. But nothing went anywhere. (Perhaps I’ll return to these fascinating topics at a future point in time.) I was distracted, as most people this morning were, by the impending news of the Supreme Court’s ruling on you-know-what (more precisely, National Federation of Independent Business et al. vs Sebelius, Secretary of Health and Human Services et al. ) So, the sheer force of circumstance have forced me to junk all those drafts and turn to noting this momentous decision.

Then, finally at 10:08 AM, the news. A 5-4 ruling (Roberts, Ginsburg, Breyer, Sotomayor, Kagan for; Kennedy, Scalia, Alito, Thomas against) that rules ‘ the entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.’ (from the SCOTUS live blog).

More: the individual mandate is a violation of the Commerce Clause, but survives as a tax:

Our precedent demonstrates that Congress had the power to impose the exaction 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.

So, the individual mandate survives as a tax. Frank Pasquale has just pointed me to a remark made by Mark Weiner in 2010:

As a constitutional matter, the bottom line is that challenges to Congress’s power to tax and spend are never successful, and I think it would absolutely stun the tax community if this tax were held unconstitutional.

The SCOTUS live blog continues:

[A] majority of the Court holds that the Medicaid expansion is constitutional but that it w/b unconstitutional for the federal government to withhold Medicaid funds for non-compliance with the expansion provisions….the Constitution requires that states have a choice about whether to participate in the expansion of eligibility; if they decide not to, they can continue to receive funds for the rest of the program.

Part of the majority opinion reads:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.” (p. 55)

Plenty more to come later. For the time being, in lieu of serious commentary on the ruling, I’ve been juvenile, sending off a series of Tweets and Facebook updates:

The stars and stripes have been morphed into the hammer and sickle

The hammer and the sickle are gleaming, because a crescent moon is shining on them

Starting today, turbans replace baseball caps as symbols of America

No more, “Wassup bro?” – from now on it’s “Greeting comrades!”

Alternatively, you could say “Salaam brothers!”

Lame, yes, I know, but come on, why so serious?

And with that, I’m going to wind up this morning’s ‘blogging,’ one spectacularly derailed by the Supreme Court, and the millions who decided to tune in to this piece of political theater.