The Supreme Court’s ruling on federal health law is only the beginning

Published 8:14 am Friday, June 29, 2012

Now that the U.S. Supreme Court has ruled on the Patient Protection and Affordability Act, it is the undisputed law of the land. The alliance of the conservative Chief Justice John Roberts and the four liberal justices was a surprise to many, as was the logic used.

The decision required a curious “jiu jitsu” interpretation of taxes and penalties. Writing for the majority, Roberts declared the law’s penalties are not taxes when dismissing the application of the Anti-Injunction Act, and then defined the penalties as taxes when declaring the individual mandate constitutional, even though the law specifically and purposefully avoided the tax label for the penalties. Roberts ruled the health care law as unconstitutional regulation under the Commerce Clause, then constitutional when he interpreted its penalties as taxes, “because it can reasonably be read as a tax.”

The federal government has nearly unlimited powers to tax, but restricted powers to regulate under the Commerce Clause. Even opponents of the federal health care law had long ago conceded it would have been constitutional had Congress stated the penalties were taxes. But President Obama and congressional leaders insisted to the American public that it was not a tax. Many believe the law would never have passed if it identified the penalties as taxes.

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In addition, if the penalties are really taxes, tax bills must constitutionally originate in the House of Representatives. This law originated in the Senate. But that argument was never addressed by the Chief Justice. Few lawyers or court observers thought Chief Justice Roberts would redefine the law to be what Congress might have written, but did not. The four dissenting justices stated, “The Court today decided to save a statute Congress did not write.”

Whether Americans agree or disagree with the logic or the majority opinion, the law is now constitutional. The U.S. Supreme Court is the last stop in challenging the law.

Or is it?

In his written opinion, the chief justice opened the door for an appeal when he wrote, “The Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.” He provided a reminder that the people are the final word, the final appeal, in electing representatives to pass or repeal legislation.

It is also possible that Roberts did another favor for the opponents of the law. Since it is now officially a tax-oriented law, the repeal process can be handled in the U.S. Senate under Reconciliation rules and passed by a vote of 51 senators. (The Reconciliation process is intended to allow consideration of a budget bill, with debate limited to 20 hours under Senate rules.) The Congressional Budget Office (CBO) is the entity that pronounces on the congressional use of the Reconciliation process.

Initial inquires to the CBO indicated that the reconciliation position is entirely reasonable and would be the avenue for legislative repeal. It would, however, require a political trifecta: Opponents of the law would have to retain control of the House of Representatives, win at least 50 seats in the Senate, and win the presidency.

Anyone who believes the Supreme Court’s ruling has ended the debate on the law is sorely mistaken. The economy will be the leading issue in the November 2012 election, but health care is 17 percent of the economy. The costs and mandates associated with the federal health law have impacted and will continue to affect jobs and job growth in the economy.

In the end, as Roberts stated, “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.” In November, voters will decide its fate. There is indeed a court higher than the U.S. Supreme Court: the court of public opinion.

Ronald E. Bachman FSA, MAAA, is President and CEO of Healthcare Visions, Inc. and a Senior Fellow at the Georgia Public Policy Foundation, an independent think tank that proposes practical, market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the views of the Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.