A Quick Summary of the Various Opinions in the Obamacare Decision

Five justices concluded that the provision requiring individuals to buy insurance or pay a penalty collected by the IRS, until now known as the “individual mandate,” is neither a valid regulation of interstate commerce nor necessary and proper to it, and thus could not be upheld under the combined power of the Commerce and Necessary and Proper clauses.  A different group of five justices, however, concluded that the provision could legitimately be construed as a tax if necessary to save its constitutionality, and so construed, is a valid exercise of the power “to lay and collect taxes . . . to provide for the general welfare.”  The Court also concluded it was not a direct tax (which the Constitution requires to be apportioned among the States).  Justice Roberts was the swing vote on these questions as he wrote a separate opinion setting forth his reasons why the provision was not authorized by the Commerce and Necessary and Proper Clauses.  Justices Scalia, Kennedy, Thomas, and Alito filed a joint opinion finding that the provision is not a valid exercise of the Commerce and Necessary and Proper clauses, and arguing that it also is not reasonably susceptible of being construed as a tax, and therefore is not a permissible exercise of  any authority granted Congress under Article I, Section 8.  Justice Thomas also wrote a brief separate dissent reiterating his view urging the Court to abandon the “substantial effects” prong of its Commerce Clause doctrine as it invites the kind of unlimited constructions of Congress’ powers urged here.

Both the conclusion that the mandate is invalid under the Commerce/Necessary and Proper Clauses and the conclusion that it is valid as a tax are holdings and precedential because both were necessary to Justice Roberts’ decision of the case:  as he explained he  felt he was justified in construing the provision to be a tax only in order to save it from unconstitutionality, and that was only required because it was not constitutionally valid under the Commerce/Necessary & Proper Clause combination.

The Court also addressed a separate challenge to the provisions expanding Medicaid from a program covering four classes of recipients to a program covering a much broader group, and allowing the Secretary of HHS to withdraw Medicaid funds designated to pay for the program as it existed before Obamacare from States that did not agree to provide benefits to the broader group.  Seven Justices (Chief Justice Roberts, joined by Justices Breyer and Kagan, in one opinion, and Justices Scalia, Kennedy, Thomas, and Alito, in their joint opinion) found that these provisions exceeded the Congress’s power to “lay and collect taxes … to provide for the general welfare.”  Justice Ginsburg, joined by Justice Sotomayor, would have upheld the provisions.

Finally, on severability, the Chief Justice, joined by Breyer and Kagan, was of the view that the Medicaid provisions authorizing the Secretary to withdraw funding from States that declined to expand their existing program should only be invalidated to that extent.  That, together with Justices Ginsburg and Sotomayor, provided a five-justice majority for upholding them with that exception.  The four justices joining the joint opinion, Scalia, Kennedy, Thomas, and Alito, would have struck down the entire Obamacare statute on the ground that the two provisions they would strike down, the provision previously known as the individual mandate and the Medicaid penalty, were central to the Act, as it would not have been adopted without these provisions.