By Ronald E. Bachman, Chairman, Advisory Board, The Institute for HealthCare Consumerism
On June 28, 2012 the Supreme Court ruled that the Patient Protection and Affordability Act (PPACA) is constitutional. It is now the undisputed law of the land. The alliance of the conservative Chief Justice Roberts and the four liberal justices was a surprise to many, as was the logic used to declare the Act constitutional.
The decision required a curious “jujitsu” interpretation of taxes and penalties. Chief Justice Roberts declared the PPACA penalties are not taxes when dismissing the application of the anti-injunction act, but defined the penalties as taxes when declaring the individual mandate constitutional even though the Act specifically and purposefully avoided the tax label for the penalties.
He declared the Act as unconstitutional regulation under the Commerce Clause, but he ruled it constitutional when he interpreted PPACA 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 Act had long ago conceded that the Act would have been constitutional if Congress had stated the penalties were taxes. But President Obama and Congressional leaders told the American public that it was not a tax. Many feel PPACA would never have passed if it identified the penalties as taxes.
In addition, if the penalties are really taxes, tax bills must constitutionally originate in the House of Representatives. PPACA originated in the Senate. But that argument was never addressed by the Chief Justice. Few lawyers or court observers thought that Chief Justice Roberts would redefine PPACA 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 you agree or disagree with the logic or the majority opinion, PPACA is now constitutional. The Supreme Court is the last stop in challenging the law. Or is it?
Justice Roberts in his written opinion 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 Justice Roberts did another favor for the opponents of the bill. Since PPACA is now officially a tax oriented bill, the repeal process can be handled in the Senate under the Reconciliation rules with agreement from only 51 Senators. 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.
However, it would take a political trifecta. The Republicans would have to retain control of the House of Representatives, win at least 50 seats in the Senate, and win the presidency.
For anyone who thinks the Supreme Court has ended the debate on PPACA, they are mistaken. The economy will be the leading issue in the November 2012 election, but health care is 17 percent of the economy and the costs and mandates associated with PPACA have and will affect jobs and job growth in the economy.
In the end, as Chief Justice Roberts stated, ”We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.”
This November the voters will decide the fate of PPACA. There is a court higher than the Supreme Court. It is the court of public opinion and action that will determine the fate of PPACA not opinion of five justices.
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