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Health care ruling could be Roberts' legacy

U.S. Supreme Court Chief Justice John Roberts etched his place in history Thursday, according to local legal scholars, when he sided with the majority to uphold the individual mandate provision of the Affordable Care Act.

Roberts was the "swing" vote in the high court's 5-4 decision to leave almost all of President Barack Obama's sweeping health care reform bill intact.

Roberts, along with Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, held that the penalty for not purchasing health insurance amounts to a tax and is well within Congress' constitutional power.

"This probably makes Roberts' reputation," said Bryan Wildenthal, a law professor with Thomas Jefferson School of Law. "It cements his stature as a chief justice who is not a predictable ideologue. He's a justice with a bigger vision of the court's role historically."

California Western School of Law professor Glenn Smith agreed, saying the decision demonstrated how Roberts doesn't want the court to be perceived as a political body.

"He said that in his confirmation hearings, but some of us failed to detect that in his opinions," Smith said. "I'm encouraged that in the most important case involving that principle in a long time, he led the court to defy cynical political expectations."

Many observers expected Roberts to side with the conservative justices – Samuel Alito, Antonin Scalia and Clarence Thomas – in overturning the law, yet it was the presumptive "swing voter," Anthony Kennedy, who joined in the dissent.

Miranda McGowan, a professor with the University of San Diego School of Law, was among those who were not surprised, however. She felt he was concerned about the legitimacy of the court and what a ruling eliminating the bill would mean.

"I don’t think he wanted to be remembered as one of the five horsemen who struck down this president's major legislative accomplishment and probably the only political compromise (available) to create affordable health care for Americans," she said.

"He's someone who generally wants to avoid the taint of judicial activism and wants to defer to democracy as much as possible."

Roberts and the majority, however, limited the bill's planned expansion of Medicaid, ruling that the government cannot force states to expand the federal program by withholding all Medicaid funding. It can only withhold the additional funds, effectively giving states the option of taking the new coverage.

California Western law professor Susan Channick wondered how many states will opt not to take the expanded Medicaid coverage.

"When Medicaid was first offered, a lot of states didn't take it," she said. "Then they found out it was more cost-effective because (without it) they had to take care of their own uninsured. That's what might happen with expanded Medicaid."

She said hospitals, which receive some reimbursement for uncompensated health care costs, might see that subsidy disappear under the new Medicaid provision and they could then put pressure on states to accept the expanded funding.

The four dissenting justices wanted to strike down the entire Affordable Care Act, displaying what TJSL's Wildenthal described as a "striking radicalism." He said their arguments that the individual mandate is not a tax and that Congress never intended the Medicaid expansion to be optional were weak.

"One could argue that Obama and the Democrats displayed cowardice in not prominently invoking the tax law because it's not popular," Wildenthal said. "The law is not clearly written as a tax, however Roberts pointed out that if there's any way to reasonably construe it as a tax, they (the court) should do it."

While the Obama administration celebrated the ruling, some analysts have questioned whether the individual mandate will actually encourage the uninsured to acquire health care because the penalty is seemingly unenforceable.

Normally, people who don't pay their taxes can face jail time or have their assets frozen. The health care legislation, however, specifically prohibits the government from using those penalties.

The only way the government can collect the financial penalty for not buying health care is by reducing the refund amount a taxpayer is due, if any.

USD School of Law professor Jordan Barry said individuals can control their refund amount by changing the amount the government withholds from their weekly paychecks.

"They could sue you," Barry added. "The IRS can't. They'd have to get the Department of Justice to, but they have a policy against (prosecuting) very small cases, so it's really hard to imagine a useful way to enforce (the individual mandate)."

The landmark ruling does not end the debate but it likely will end the Supreme Court's involvement, according to California Western's Smith.

"Bottom line is, it returns questions about health care policy – like how will we provide health insurance for the poor and how much of a financial incentive is needed for insurance companies – to the political process where they belong," he said. "The courts are not good forums for dealing with complex policy questions like these. A major legal shadow has been removed."

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