Justice Ginsburg makes clear that the vote is 5-4 on sustaining the mandate as a form of tax. Her opinion, for herself and Sotomayor, Breyer and Kagan, joins the key section of Roberts opinion on that point. She would go further and uphold the mandate under the Commerce Clause, which Roberts wouldn't. Her opinion on Commerce does not control.
On the Medicaid issue, a majority of the Court holds that the Medicaid expansion is constitutional but that it w/b unconstitutional for the federal government to withhold Medicaid funds for non-compliance with the expansion provisions. The key comment on salvaging the Medicaid expansion is this (from Roberts): "Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding." (p. 55) In essence, he Constitution requires that states have a choice about whether to participate in the expansion of eligibility; if they decide not to, they can continue to receive funds for the rest of the program. Justice Ginsburg would uphold Medicaid just as Congress wrote it. That, too, is not controlling.
The Court does not reach severability issues, having upheld the mandate 5-4.
In opening his statement in dissent, Kennedy says: "In our view, the entire Act before us is invalid in its entirety."
In summary: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding.
The opinion in the health care cases: http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf
The position that the individual mandate is a tax was made by the Administration as a third backup argument, after the Commerce Clause and Necessary and Proper Clause arguments, and those two arguments were rejected by the Court, so that makes a small opening for turning back the line of precedents going back to McCulloch v. Maryland that began the expansion of congressional powers. But it makes the taxing and spending powers the basis for further unlimited expansion.
Holding that the individual mandate is a tax does not resolve all questions, and this holding raises some important issues. Any tax is on something. What is this tax on? It is on not doing something. That is as much of a reach as a "regulation" prohibiting not doing something. But the Roberts opinion does not adequately explain or settle that issue.
Now the doors of binding stare decisis have been opened to all kinds of taxes on not acting. We might consider a few kinds of inaction on which a tax might be imposed:
1. Not smoking. After all, if more people smoked it would kill them off faster and thus reduce medical costs for them.
2. Not driving well. Arguably this is what traffic fines already actually are.
3. Not losing weight. Obvious justification.
4. Not exercising enough. Might present an enforcement problem but could install monitor chips in everyone.
5. Not getting a regular medical checkup.
6. Not doing all your homework.
7. Not brushing your teeth.
8. Not cutting your hair.
9. Not voting in every election.
10. Not having a government-issued ID.
Some argue Congress would never attempt to impose such taxes. And until now neither were state legislatures like to do so. But this holding is a breakthrough for the concept of what is deemed a proper taxable object, one that is likely to be taken up by state and local governments hungry for revenue or power. That makes it a government-expanding precedent as important as Wickard, and perhaps even more dangerous. If you don't have the power to make people do something, tax them for not doing it, then throw them in jail if they don't pay the tax. And of course there is no limit on taxes on doing nothing, such as 100% of a taxed business transaction. It could be an amount impossible to pay, making it effectively a penal police power.
The dam against unlimited government has been broken. Repealing the Health Care Act is not enough. The damage to our jurisprudence is far greater than most people yet realize.
This is a black day for the Constitution. If Romney is not elected, it will take 2/3 of both houses of Congress to overcome a veto of a repeal of the act. Even if he is, it will take a 60-vote Republican supermajority in the Senate to overcome a filibuster on those parts of the Act not considered a tax (which may not be filibustered). The main issue of the 2012 federal election campaign is now set. Several things are likely to drive developments:
- Major moves by large employers to drop health insurance.
- Either large increases in health insurance premiums or withdrawal of many health insurance companies from the market, especially when they figure out that the amounts raised by the individual mandate won't be nearly enough.
- A refusal of the House (which can be expected to remain Republican) to fund parts of the ACA that were not funded within it, such as Medicate expansion, rendering the entire program nonviable within a short time.
- Refusal by many if not most states in the Medicaid expansion, followed by fed exchanges costing so much that it breaks other kinds of spending, such as military, or state spending on other things.
- Withdrawal of many more physicians from the practice of medicine, or at least from acceptance of fed-funded patients.
- Further declines in the stock market attributable to increased health care costs, and capital flight off-shore, with resulting increases in unemployment.
- Collapse of the international monetary system, probably starting
in Europe (as happened in 1931), but coming just after the decision
on the ACA, leading many people to blame the collapse on the ACA
(unfairly, but nevertheless).
- Tax Matters — Portal to the subject of taxes, tax abuses, and tax reform.
- Unnecessary and Improper — Analysis of Necessary and Proper Clause.
- Individual mandate goes down in the 11th — This is the case that went to the Supreme Court.
- Is it a "tax" or not a "tax"? — Discussion of an article by Rob Natelson.
- What "commerce" meant to the Framers — Evidence of original meaning of the term.
- The original meaning of "carrying into execution" — The restrictive phrase has never been properly adjudicated.
- First day of oral arguments on Affordable Care Act - 2012/03/26 — Video of Constitution meetup.
- Original Understanding of the Commerce Clause, Jon Roland — Historical background.