The problem with all too much of the early analysis of Thursday’s Supreme Court decision on the Affordable Care Act is that it’s framed around whether Obama/Democrats won or lost, whether the mandate survived or not, and whether the “liberals” or “conservatives” on the court came out on top.  I think most of that is of dubious value.

Curiously, while CNN and FOX were ridiculed for getting their first headlines wrong — Court overturns mandate! — the subsequent “correct” analysis may also turn out to be backwards.    So while rabid ObamaCare haters were initially joking (or serious?) about moving to Canada to escape the traitor, John Roberts’ betrayal and the destruction of liberty in America, even if that meant they’d now have to pay taxes to support a single-payer system, subsequent analyses said, hmm, maybe this Roberts guy was more clever than we thought.

Writing about what he calls the political genius of John Roberts, Ezra Klein quotes law professor Randy Barnett:

“We won,” said Georgetown law professor Randy Barnett, who was perhaps the most influential legal opponent of the Affordable Care Act. “All the arguments that the law professors said were frivolous were affirmed by a majority of the court today. A majority of the court endorsed our constitutional argument about the Commerce Clause and the Necessary and Proper Clause. Yet we end up with the opposite outcome. It’s just weird.”

Professor Barnett is right on the constitutional issues.  Roberts and a majority of Justices –all conservatives — endorsed almost all of the conservative arguments that were designed to limit Congress’ power against the states and Congress power under the Commerce Clause.  The latter included the nonsensical “broccoli argument,” whose premise appears in Roberts’ claim that the “mandate” forced people to “buy a product” called “insurance.” And because requiring you to do something is regulating “inactivity,” it’s not permissible under the Commerce Clause.  Those arguments, previously thought silly, are now going to be cited as precedent by those who frankly don’t give a whit about precedent when it’s inconvenient.

Roberts also got a majority of Justices — all conservatives and two others — to endorse the dangerous view that Congress can’t use its funding leverage to compel states to expand federal/state programs like Medicaid, SCHIP and many other programs that have always operated off that principle.   We will see that one return again.

And yet the Chief Justice wrote a “majority opinion” that, with four liberal justices concurring in the final result, upheld the so-called mandate under Congress’ power to tax. Why accept conservative arguments throughout to reach a result supported by the so-called “liberals”?

I don’t find this surprising.  Quite apart from debates here about whether the mandate is “liberal” or a concoction of conservative think tanks to channel billions in public monies through private corporations, I think it would have been dangerous for the Chief Justice to hold, as his conservative colleagues wanted, that Congress doesn’t have the power to tax to accomplish valid public purposes.

All Roberts did was to acknowledge the previously unassailable, that Congress can in fact enact taxes for such purposes.  To hold otherwise would have confirmed in everyone’s minds that the conservative majority’s views are extreme, radical departures from common sense.  They undermine the ability of any government to function for what most people think are legitimate public purposes, like promoting decent health care for your citizens.   By not openly embracing the radical’s goals, Roberts may have saved the conservatives’ image from their own extremism, at least for now.  But in all else, he ratified their arguments and left the precedents there as future traps for Congress and the federal government. [cont’d.]

I think that helps explain why careful readers like Brad DeLong, et al, found multiple signs the Chief Justice “switched sides” at the last moment, turning the expected “majority opinion” into a poorly edited “dissent” by Scalia and friends.  That created a new “majority opinion” whose reasoning his four liberal “joiners” in the new majority probably thought were absurd.  I suspect the Chief Justice didn’t see himself as “switching sides.”  He just changed tactics to strengthen his conservative team’s strategic position.

So this wasn’t a 5-4 decision for “liberals” but instead  a 4-1-4 decision, in which Roberts gets to have it both ways.  He’s the one in the middle who lets Congress enact a tax to support a government policy — nothing constitutionally interesting there — while the Court ratifies several conservative restrictions on what Congress can do to solve national problems.

In the process, he did violence to constitutional law and logic.  Consider, for example, Robert’s logic on the “mandate.”  In saving the “mandate,” Roberts essentially defined it as not a mandate.  You are not really required to purchase insurance, he noted; instead, you may choose not to purchase insurance and instead pay a minor tax.  As we know, taxing is just a way to collect revenues, a contribution to the common, aggregate costs of public programs.  In this case, the program is paying for many people’s health care through a system of risk/cost sharing.

But if the so-called mandate is not really a mandate but rather an option that can be avoided by paying a tax, and if a legitimate purpose of this tax, as government and amicus briefs argued, is to help cover aggregate costs across a pool of many insured and uninsured people, then what does that do to Robert’s argument about the Commerce Clause?  When arguing about the Commerce Clause, Roberts insists it’s a requirement to purchase a “product,” which forces you to take an action, and thus to engage in commerce when you would not otherwise have done that.  Regulating “inaction” is not permissible, Roberts argues.

But if, as Roberts concludes, the “mandate” is not a mandate, and the tax’s purpose is to help cover pooled costs, and not to but a “product,” then there is no “mandate” to purchase a “product.”  So no one is forced to engage in commerce as Roberts framed it.  Indeed the “commerce” is already there in the risk sharing system across millions of people, all engaged in commerce by paying premiums into a pooled risk scheme.  Robert’s entire premise for striking down the Commerce Clause rationale is thus contradicted by his argument about how it’s permissible for Congress to enact a tax to support funding of collective health care costs.  That’s what the tax does; but it’s also what paying insurance premiums does.

Roberts’ reasoning on Medicaid is equally illogical. His premise is that Congress cannot expand an existing program administered by states that depends on shared state/federal funding by conditioning funding for the whole program on the states actually implementing the expansion.  As Brad DeLong observes, if Congress were just now creating a fully expanded Medicaid, to be implemented by states but mostly paid for by the feds, there would be no question that Congress could condition federal funding on the states actually carrying out the programs.  But if the program already exists for half the needy population, Congress cannot complete the program for the other half and use the same leverage to achieve the same degree of state cooperation.

This isn’t an academic discussion. CBO estimates that about 16-17 million currently uninsured Americans will become eligible for the expanded Medicaid — it will be the only health coverage they have other than emergency charity — but only if the states actually implement the expansion and make an effort to get those eligible to sign up.

Texas and Florida, among others, are notorious for failing to implement even the current Medicaid programs at the desired levels. You have to be totally impoverished to quality.  The ACA provides 100% federal funding for the expansion in the initial years and at least 90% thereafter.  But that likely won’t be  enough to entice those states notorious for cheating their own citizens and unwilling to raise the revenues to cover even the small share of state costs at current inadequate levels.

By embracing the arguments of the stingiest, most recalcitrant states, Roberts’ decision may encourage many states to turn down the federal expansion.  After all, 26 states joined in the suit to overturn the Medicaid provision, because they didn’t want to implement it, even if mostly federally funded.   Now the Chief Justice has told them that they don’t have to comply and can ignore the critical health needs of millions of their citizens, even though Congress is willing to pay almost all the costs, and the money for covering them was already promised.  It’s truly shameful.