ASU Law Professor Andy Hessick explains the High Court’s rationale for finding the Affordable Care Act constitutional.
> Good evening, and welcome to
I'm Ted Simons.
Ted Simons: In a 5-4 decision, the U.S. Supreme Court today ruled that the affordable care act, or Obamacare as it's become known, is constitutional.
The court decided that the law's individual mandate is not a requirement to buy health insurance, instead, it's a tax on those who don't buy insurance.
Here to help us wade through the legal argument assist ASU law professor Andy Hessick and associate -- an associate dean at the Sandra Day O'Connor college of law. Thanks for joining us. We're going need help wading through this one.
How much of a surprise was this decision?
Andy Hessick: I think it was a pretty big surprise. A lot of people said after the or argument they thought the justices sounded like they would
strike it down. This was a surprise. Definitely.
Ted Simons: And the way it was announced was a bit of a surprise, caught a couple of major news networks off balance.
Andy Hessick: So everyone was saying if chief justice Roberts had the opinion, that would mean that the act was going to be struck down. And he got up and announced he said he was announcing the decision, and then he also started the decision by saying that the mandate was unconstitutional under the commerce clause, and at that point everyone is like, the act must be unconstitutional. But then he switched gears and said, but it's OK under the tax clause.
Ted Simons: He pulled the old switcheroo. Did the court consider four things, correct?
Andy Hessick: Four things.
Ted Simons: Talk about those.
Andy Hessick: It was four separate cases. The second case was the individual mandate. When everyone talks about what this case is about, that was the second case. The first case was about whether or not the court could even hear this whole challenge at this time. There is an act that says that you can't hear challenges to taxes until after the tax is assessed. In so far as the way that the mandate was enforced is to increase your taxes, people were
saying, oh, they can't hear it now, they have to wait until it goes into effect in 2014. The second was the chat evening to the individual mandate about the commerce clause and the tax clause. The third was, what happens if
the individual mandate is struck down, what happens to the rest of the act?
Because the individual mandate was one portion of a giant thousand multithousand page act. And so it could be carve out the mandate or does the whole acts to fall? And the fourth case associated with it was, had to do with Medicaid. The law expanded Medicaid eligibility. And it was whether or not that was constitutional under the spending clause.
Ted Simons: And all were OK except for that Medicaid expansion. Correct?
Andy Hessick: That's right.
Ted Simons: So why -- before we get to the individual mandate, which is the big gorilla in the room, why was the Medicaid expansion not considered constitutional?
Andy Hessick: So under the spending clause, one of the doctrines is that Congress can give money to the states in order to get the states to do things. To give money to the states and the states do Medicaid. But what Congress can't do is force the states to act by withholding money, or giving
money only if they meet very stringent conditions. So here Congress said, we want to expand Medicaid, and if you don't expand it in this way, we're going to take away your funding, not only for the Medicaid expansion we want, but
also for all other Medicaid. And the states were like, that's two course -- the Supreme Court said that's too coercive.
Ted Simons: That didn't quite make it. Didn't quite pass muster. But the individual mandate did, and not because of the commerce clause, which is what everyone argued about in oral arguments, but it's a tax -- first of all,
what's the commerce clause and secondly, how did this become a tax instead after penalty?
Andy Hessick: The commerce clause says Congress can regulate commerce among the several states. And so what the argument here was that the requiring people to purchase health insurance, which is what the individual mandate
does, the administration was saying, this is regulating commerce because people are involved in health care, they get health care from the hospitals and what not and insurance is the way you pay for it. So it's all tied up in commerce. And what chief justice Roberts said was, no, Congress isn't regulating commerce here, they're creating commerce by -- if it were regulating, it would only be if people already had insurance or were going to
buy insurance. But what they're doing here is making people buy insurance.
They're creating commerce where there wasn't commerce. That's not OK. So instead, chief justice Roberts went on the tax ground, and the reason he could do that is that if -- the way the statute is written, if you don't get health insurance, then the way -- the consequences are that you have to pay a tax penalty. So he said, oh, all this really is is a tax that's being assessed against you and you can avoid it if you get tax assessment.
Ted Simons: I saw assessment and collection was mentioned in his opinion.
Andy Hessick: M-hmm.
Ted Simons: And -- Congress, how did they -- they said this was not a
tax. The Obama administration said it was not a tax. The dissent was, a lot of stuff written about the commerce clause, did Roberts sit there and go, you know, I think I see something no one else sees?
Andy Hessick: The tax argument has been floating out there. People were aware of it. The government did make this
argument. And the -- so people just hadn't been talking about it that much because Congress didn't call it a tax, Obama administration didn't call it a tax because they didn't want to call it a tax. To call it a tax is political
poison. So -- but what the court said, justice Roberts said it doesn't matter what Congress calls it, because the tax power is something in the constitution. And Congress can't define the constitution, so even if Congress didn't think they were doing a tax, they really were doing a tax.
Ted Simons: We've already heard a lot of criticism, I want to get to this in a second, but those opposed to this are saying chief justice Roberts rewrote the law to approve the law. Is that accurate?
Andy Hessick: Some people are saying the dissent said that. There is a doctrine that says if a law is -- could be read two ways. One way is constitutional, one way is unconstitutional, the court should read the law in a way that is constitutional. And so Roberts said, I reasonably can read this law to be a tax, so that's OK in the -- and the dissent said you can't reasonably read it that way. Congress said this is not a tax.
Andy Hessick: Talk about the dissent. That was a long dissent, a group
dissent, we still don't know who wrote it. And it seemed to me, just breezing through it, a commerce clause was mentioned a lot as opposed to what this thing really hinged on. What was going on here?
Andy Hessick: The dissent is very long, the author, it's not clear, they do focus a lot on the commerce clause, presumably because that's what the argument were all about. There's also some indication that maybe the dissent was original lay majority opinion because the author is not identified, and also because they refer to justice Ginsburg's opinion, who concurred in the judgment as a dissent, which would sort of suggest that she -- that she was in the minority and that they were in the majority originally.
Ted Simons: Talk about the machinations here. How would that work to where
they're all writing the majority opinion, and you're in the minority. Did justice Roberts give them the -- how does that work?
Andy Hessick: It's possible. There's speculation. What would have happened, would have been justice Roberts would have been with the dissent, and justice Ginsburg would have -- Ginsburg would have been dissenting and he for whatever reason went and wrote this separate justification under the tax clause. And it's a possibility. There are other indications in the dissent that this might have happened.
Ted Simons: If the dissent -- it's going to be a little harsh, but debilitated, inopennable, the public didn't expect this, all these kinds of words, and a lot of it -- some are suggesting Anthony Kennedy wrote much of
this. Do we know?
Andy Hessick: I think that the reason people are saying that is that he -- I think he was the one who announced the dissent from the bench, which would indicate that maybe he had lead authorship. Though we can't be quite sure.
Ted Simons: What does this say about chief justice Roberts?
Andy Hessick: Well, the fact that he joined the liberal -- that's
unexpected, that he upheld the law is unexpected. It might indicate that he's
thinking about his legacy, he doesn't want to be known as the chief justice that struck down a major act. Maybe he wants to demonstrate he is not partisan, that he's deciding according to the rule of law, that he's not always going with the conservative block, and he's joining with the liberal block.
Ted Simons: So the impact you think -- the public perception of the Supreme Court right now is by some accounts at an all-time low. Does that factor into what the court does?
Andy Hessick: Everyone says no, but probably. Right?
I'm sure that the court does care about how the public perceives them. The court's legitimacy and power depends in large part on how the public views them.
Ted Simons: So we keep hearing this is a Kennedy court, Kennedy is the decider, he's the swing. Has this become chief John Roberts's court?
Andy Hessick: Very possibly.
Ted Simons: You were surprised?
Andy Hessick: I was surprised. Definitely surprised.
Ted Simons: It's good to have you. Great information. Thanks for joining us. We appreciate it.
Andy Hessick: Thank you.
Andy Hessick:Professor of Law, ASU;