The Supremes Have Me Confused

So this is how I read the PPACA/Obamacare decision today

  • The mandate is not allowed under the commerce clause powers
  • However, Congress is allowed to use its taxing power to issue financial threats to coerce individual activity it can't mandate
  • However, Congress is not allowed to use financial threats to coerce state government activity that it can't mandate


  1. LarryG:

    see the Social Security Act and Medicare Part A. If you are self-employed (as you may be aware), at tax time you are hit with Social Security and Medicare "taxes", right?

    Any tax is a de facto mandate from most govts, for you to buy something anyhow, right?

    You are hereby "mandated" to pay for schools and police, fire fighters, social services, bridges, roads, MedicAid, SNAPs, etc with your taxes.

    "However, Congress is not allowed to use financial threats to coerce state government activity that it can’t mandate"

    and indeed SCOTUS ruled unconstitutional the expansion of MedicAid by threatening to take existing monies away if they did not accede to the expansion.

  2. Heehaw:

    Let me clear this up for you: Congress can take your money unconditionally-- that's a "tax," or conditionally (say, if you don't buy insurance)-- that's also a tax. However, if Congress regularly gives you ("benefit") some of the money it takes from other people ("tax"), Congress cannot condition the transfer on your behavior. See numerous court cases ruling, for example, that unemployment benefits may not be denied to people just because they refuse to work at all, and that welfare payments may not be denied to criminals just because the law says only non-criminals are eligible, and so-on.

  3. NL_:

    The best way to conceive of it is that Roberts needed to uphold the law without creating an infinitely expanding commerce clause. If you stop taking his words at face value, it becomes easier to see what he was getting at. Which is why the Obamacare Tax is a penalty for Anti Injunction Act purposes but a tax for taxing power purposes.

    I think the Medicaid thing is really better seen as the Court trying to referee some sort of compromise, since it's a federal program but the states aren't really in a tenable position to say no (and watch their tax money flow to the other 49 states). The Court didn't have a lot of time to make a super nuanced argument here, so they mostly just made up a balancing rationale that fits their purposes.

    I was way off. I predicted 100% struck down. I assumed they would go with the most direct route and then strike it all so they could avoid fumbling around awkwardly with the federal-state issues in Medicaid.

  4. caseyboy:

    Roberts appears to care about his legacy and vacating the most significant piece of law in recent memory was just a bridge too far for him. A tax of this nature just feels so wrong, but is it unconstitutional? The good news is that the commerce clause was not stretched to cover the mandate and the states have some wiggle room in reacting to law.

    In affect what Roberts has done is to challenge the people to resolve this politically. No easy out through the court.

  5. Craig Loehle:

    They felt too much political pressure to kill the law, so they "saved" it, but that leads to absurdities. Roberts' statement about only being an umpire, and the desire to save the commerce clause means that Congress can penalize any behavior whatsoever. Not putting solar panels on your roof? A penalty for that. Overweight? A penalty for that. Own guns? a penalty.

  6. Zach:

    I'd say a mandate to buy flood or hurricane insurance is the next thing. After a major flood season or a big hurricane, states are always whining about how so many of their people are filing total loss claims. Now they can force everyone to buy insurance (even people like me who don't live near a coast or flood plain) to subsidize the people who, statistically speaking, are likely to lose their houses about once every 30-50 years.

  7. dmon:

    There is a much simpler explanation. The Chicago Boys dug up a picture of Roberts, the 16 yr. old baby sitter and the family pet.