Thursday, June 28, 2012

The Big Surprise

We've become so accustomed to Justice Kennedy being the swing vote on the Supreme Court that just about everybody waiting for the ruling on Obamacare (ACA) was going crazy trying to figure out what he might do.  Personally, I didn't have much confidence that he would uphold the individual mandate — and I turned out to be right.  He didn't.

The real surprise was that the swing vote, this time, came from Chief Justice Roberts.  Mind you, he didn't uphold the mandate based on the Commerce Clause, as the four liberal justices did.  Roberts construed the mandate as a form of a tax, and hence within the powers of Congress to enact.

Actually, it seems only reasonable that one of the conservative justices, at least, would find it possible to approve a plan designed by the Heritage Foundation.  It may be that Roberts, while ideologically conservative, is less political than Thomas, Alito, and Scalia.  It may also be that he wanted to find a way to approve the ACA for the sake of the nation's health.

We know that the Republicans in Congress will try to overturn the law, but as long as there are 41 Democrats in the Senate, it won't happen.  In the meanwhile, some states my try experimenting with public options, which have to bring down insurance costs because they would be non-profit and require no advertising.  We'll see.

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