Thursday, June 28, 2012

PPACA A-OK (but it was even closer than you thought)

Don't expect coherent posting from me for a while, just variations on "Woo!" and "Yes!" interspersed with some rhetorical random fist-pumping and, I don't know, ecstatic, amped-up Bon Jovi-style guitar riffs.

But before I get to that, let me make two observations about today's health care ruling:

First: it was way closer to being a total disaster than I ever imagined.  I was decidedly pessimistic about the whole affair, but I figured the court would ditch, at most, the mandate and guaranteed issue.  The law, however, contains dozens, if not hundreds, of smaller, almost completely unrelated provisions.  I didn't doubt that Scalia and Thomas, who have never exactly embraced practicality in their jurisprudence, would toss out the whole law without blinking.  But Alito and Roberts I was less certain of.  And there was of course Justice Kennedy to protect us, who always seems so sincerely tortured in these situations.  Justice Kennedy might want to kill the mandate, but would he really want to delete the entirety of the largest reform bill passed by Congress in forty-five years?  Of course not, don't be insane.

Turns out Kennedy was more than ready to kill the entire Act.  Roberts, by accepting the tax rationale, didn't just save the mandate, he saved every inch of the ACA.  It was a knife-edge decision; all or nothing.

Second: there's another way this might have gone horribly wrong for the administration, one that's been so far overlooked as best as I can tell.  Here's the vote breakdown on the Medicaid extension:

  • 3 justices deemed it unconstitutional, but severable using the Medicaid severability provision (which isn't in the ACA at all)
  • 2 justices deemed it constitutional
  • 4 justices deemed it unconstitutional and not severable, either
Notice anything funny there?  There's a plurality of justices who want to kill the entire law based on the Medicaid extension.  In other words, if we're just counting votes the normal way, the law should be dead.  And not only that, but dead at the hands of a minority of the Court, entirely drawn from the conservative wing and mostly consisting of the Court's most conservative members.  

What actually ended up happening is that Sotomayor and Ginsburg, who thought the provision was constitutional, nonetheless made a strange, hypothetical argument in the alternative: if the law did just so happen to be unconstitutional, well, they'd rather use the Medicaid severability provision than deep-six the entire Act.  So in the end, the Medicaid extension was deemed to be unconstitutional by a 7-2 majority, but severable by a different 5-4 majority.  

Now, there's been some confusion about the fact that Scalia's dissent appears to have been written as the Court's opinion, using strange phrasing that doesn't usually appear in dissents.  The conspiratorial view is that last-minute pressure from the White House forced Roberts to switch sides.  But I think there's a more likely explanation: the votes had been taken and the opinion was obviously shaping up as a disaster.  The mandate had been thoroughly tried in the court of public opinion, and been found wanting.  The Medicaid extension, by contrast, is not only popular, but highly sought-after by most states, who, after all, never miss an opportunity to gobble up federal money.  And this was a lot of federal money; a nine-to-one match, to be precise.  It's hard to imagine a way to more completely politicize and delegitimize the Supreme Court than to have a minority of conservative justices kill an enormous, landmark law based on states' inability to opt out of a provision that they're all going to opt into, anyway.  Faced with looming disaster, some votes were traded and creatively counted to make everything work out okay.  But as a result, Scalia and Company didn't know if they'd be dissenters or the majority until the very end.

Somehow, though, we dodged all these obstacles and everything worked out okay. Back to the good stuff.

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