Yesterday’s Supreme Court hearing was most notable in the collapse of the false narrative used by many Democratic senators and media representatives in Barrett’s confirmation that the Affordable Care Act was on the verge of overturning in the California v Texas case. That conspiracy theory (which suggested that the rush to confirm Barrett should provide the final vote) was shattered when both Chief Justice John Roberts and Associate Justice Brett Kavanaugh reiterated their positions in favor of severance pay – a position that the survival of would guarantee the ACA. What was equally noteworthy, however, was the slightly pathetic scene in which Roberts actually acknowledged that he might have accepted the single mandate arguments against Sebelius, 567 US 519 (2012), as a fool eight years ago in the National Federation of Independent Business against Sebelius, 567 US 519 (2012). Roberts has been on a collision course with himself for years – and he had a one-person bunch yesterday.
Eight years ago, Roberts sided with the Conservative judges that the demand for insurance was a blatant violation of federal guarantees, a view I shared. But at the last minute he voted with the four liberal judges, stating that none of this mattered because he viewed the individual mandate as a tax. It was a surprising twist as both sides had denied that it was a tax. By declaring the sole mandate to exercise the tax authority of Congress, Roberts saved the law. He insisted that the individual mandate was the beating heart of ObamaCare, which could not survive without the tax revenues of healthy young citizens who put more into the system than they took out. Roberts wrote that “the individual mandate was the solution of Congress” to the existential problems associated with a national health system. Likewise, the liberal judges, along with Roberts, said that without the individual mandate, the other parts of the ACA “will not work on their own”.
His decision to transform the mandate into a tax appeared to many of us artificial and opportunistic. It also sowed the seeds for its own destruction, not only basing ObamaCare’s survival on the existence of the tax, but insisting that the law could not survive without it. Congress called its bluff by zeroing the tax, which was exactly what Roberts had said to uphold ObamaCare as a constitutional matter.
At the 2012 hearing, Roberts investigated whether Congress could force Americans to buy broccoli to make themselves healthier. While Roberts ultimately decided that the individual mandate (and the broccoli compulsion) was a violation of federalism, he brought all of these discussions up to speed by declaring the individual mandate a tax.
Now the ACA advocates are back, insisting that the individual mandate was never really the essential element they brought before the Court. Roberts’ painful position became apparent in oral arguments:
“Eight years ago those who defended the mandate insisted that it was key to the whole thing. It was all about getting money from people who were forced to take out insurance to cover all other shortfalls in the expansion of the health care system. But now the representation is that, oh, no, without it everything is fine. Why the bait and the switch? . . . We were talking about broccoli for free the whole time? “
Well it wasn’t in vain. It was a bait and a switch. What’s interesting is that Roberts took the bait and now seems ready to make his own switch. He suggested rescuing the ACA through severance pay but acknowledged that the basis of his previous opinion was now invalid. Indeed, Roberts himself might find the individual mandate unconstitutional.
So Roberts could set an odd precedent: he saved the ACA in 2012 by declaring the individual mandate essential to the survival of the law, and again rescued the ACA in 2020 by declaring that the individual mandate for the law’s survival was not is essential. If that seems confusing, say hello to the world of Chief Justice Roberts at ACA.