Health Care Ruling: Surprising Decisions, Votes

There was a lot of speculation about how the Supreme Court would decide, but almost every prognostication was wrong: from who the swing vote would be (it was Chief Justice John Roberts, who wrote the opinion), to what the basis for the opinion would be (it wasn't the Commerce Clause).

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LINDA WERTHEIMER, HOST:

This is MORNING EDITION from NPR News. I'm Linda Wertheimer in for Steve Inskeep.

RENEE MONTAGNE, HOST:

And I'm Renee Montagne.

The Supreme Court has decided on the constitutionality of President Obama's health care law. It largely upheld the entire Affordable Care Act, including the requirement that individuals buy health insurance. That Individual Mandate, as it's been known, survives by a vote of 5-to-4. It's now being called a tax.

WERTHEIMER: Chief Justice John Roberts joined the majority on the decision. Justice Anthony Kennedy, long viewed as the swing vote on this ruling, was in the dissent. Members of Congress have been responding to the ruling. House Republicans have already vowed to repeal the law.

MONTAGNE: President Obama and Mitt Romney both will respond to the law later today.

NPR's Nina Totenberg has been reading the decision and she joins us now from the Supreme Court. NPR's national political correspondent Mara Liasson is with us also here in the studio.

And, Nina, we're going to go to you. Before today, there was lots of speculation about how the court would decide. And very little of it seems to have happened this morning.

NINA TOTENBERG, BYLINE: Yes, surprise, surprise.

(LAUGHTER)

TOTENBERG: Almost every prognostication was wrong: who was the swing vote on this - turned out to be the Chief Justice John Roberts, who wrote the opinion for the court; what the basis for the opinion would be - it wasn't the Commerce Clause. That Roberts agreed was the Congress didn't have the power to enact this mandate under the Commerce Clause. But, he said, Congress did seem to make the penalty as a tax.

It looks like a tax. It walks like tax. It quacks like a tax. It's paid to the IRS. It's a payment that's calculated like a tax based on income. And there is nothing, he said, in the Constitution that guarantees an individual may avoid a tax just for inactivity - for not having health coverage. Congress, as he observed, has often used taxes to get people to do things; taxes as an incentive.

So here, you have to buy insurance or you pay a penalty. And the penalty, he said, is a tax and that is constitutional.

WERTHEIMER: Now, Nina, the entire act, the Affordable Care Act, was upheld except for one portion of it which was the expansion of the Medicaid program, because they had written into the law a penalty. If the states did not which to expand their Medicare program, then they'd lose their Medicare funding. And the court said, wait a minute.

TOTENBERG: Yeah, the court said normally what you do in Medicaid is up until now, you have the choice, states have the choice. Do they want the Medicaid - the federal government payment for Medicaid, supplemented by state funds - or not. In this case, if you didn't you didn't take the expansion, if you wanted to keep your old Medicaid but you didn't want to take the expansion - which covers many more people - well then, you would lose all of your Medicaid funding.

And the court said that's too much of a thumb on the scale, it is no longer a choice. As the chief justice put it, it's a gun to the head. And therefore the states have to have a genuine choice as to whether or not they accept Medicaid for this expansion.

Now, I can't imagine that most states won't accept it because people will otherwise be subsidizing citizens in other states that do accept it. So I would imagine it will be the rare state that doesn't accept the Medicaid expansion. But they don't have to.

MONTAGNE: Let's go back for a moment to who voted in the majority and who voted in the minority. And let's start with Chief Justice Roberts. What did he say that distills what seems to be his thinking here?

TOTENBERG: Well, it was - this is a case of shifting majorities. So, you have Chief Justice Roberts joining the court's conservatives to say that Congress did not have the power under the Commerce Clause to regulate inactivity; to make people buy a product that they didn't want. And then he joined the liberals on the court to say but this is a tax.

If you view this as tax and we do - because people have to pay a penalty to the IRS if they don't have health insurance - if you view it as a tax that is constitutional. So that is the bottom-line of the thinking.

And then there's seven justices who said that the Medicaid expansion was too coercive on the states. But they all said, those - at least a majority of the court said, nonetheless, the Medicaid expansion can stand, it just has to be a choice not essentially mandatory by putting the thumb on the scale, to force states to take it.

That's sort of, I think, I've accurately summarized. It's about 200 pages of dissents and joining the majority judgments here and there and everywhere. It's very complicated but the bottom line is that, for the most part, the Obama health care overhaul stands.

WERTHEIMER: And pretty much stands as it is. Let's ask a political question here. Mara Liasson, how big a victory for the president?

(LAUGHTER)

MARA LIASSON, BYLINE: Big.

WERTHEIMER: Huge.

LIASSON: Very big. Huge, only because if the opposite happened - if part or all of the law had been overturned - it would have been a huge, huge defeat for him. And it would've looked like he'd wasted two years of his presidency, which is what Mitt Romney has been saying on the stump - took his eye off the ball of the economy. This is a big victory for him.

However, the law is still unpopular. It's still a rallying cry for Republicans and for Mitt Romney. The question now is what does the president do with this decision, how does he talk about it? Does he kind of embrace what the law said and said, OK, the mandate is gone. This isn't a mandate. What we have is an anti-free rider tax, and nobody is forcing you to get health insurance. But if you don't have it, we're going to tax you.

He generally has shied away from that. He doesn't like talking about the mandate. What he focuses on usually are the narrower, smaller, popular provisions in the law - like kids staying on their parents plan till they're 26 or help with seniors buying drugs.

TOTENBERG: Let me just say one thing about what the chief justice said, 'cause it kind of plays into this. He said: The Framers created a federal government of limited powers and assigned to this court the duty of enforcing those limits. Our decision, he said, is based on our responsibility to say what the law is. It's not our job to save people from their political choices. We're not expressing an opinion about this law. We're just saying it's within the constitutional framework.

LIASSON: What a modest, incremental kind of statement from the chief justice who's been painted as a fire-breathing right-wing activist.

TOTENBERG: And modest is what he has always wanted to be painted as. His model for a chief justice, it was Chief Justice Hughes who took the court during the New Deal out of being a major flashpoint of public controversy. And Hughes left to the legislature, for the most part, to do what it could or would in regulating the economy. The court, after Hughes succeeded, sort of stayed out of the business of Congress. And that seems to be what the chief justice was trying to do today.

MONTAGNE: Well, he in effect though sent it back to lawmakers. And already this morning, House Speaker John Boehner has responded by saying that this ruling by the Supreme Court underscores the urgency of a full repeal of the law.

LIASSON: What I think this decision does is it gives the Republicans a big target and a rallying cry. On the other hand, it makes - it also presents them with a lot of risks. If they're going to do a full repeal, they're going to have to repeal now - not the mandate 'cause that's moot - but all of the things that people do like.

People don't like the overall law but they like the individual provisions. And now, the Republicans are going to repeal - or vote to repeal - every single one of those. And Romney is going to be campaigning on a platform that says: Vote for me and I'll get rid of every last bit of it.

WERTHEIMER: So, it's going to take us a while to see whether Republicans are testing that and seeing what kind of response there is.

LIASSON: Well, they're going to vote to do that. They've already voted to that. They're all, in the House, they're all on record as having vote to repeal. I think this is something they have to for their base. And the question is, over time, does this become a big issue in this campaign? Or does it subside like every other issue that's not the economy has subsided in this campaign?

MONTAGNE: Mara, thanks very much.

LIASSON: Thank you.

MONTAGNE: And, Nina, thanks very much. NPR's Mara Liasson here in the studio, Nina Totenberg at court on the Supreme Court decision.

It's NPR News.

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