I did not see that coming...

The Supremes upheld the individual mandate of the PPACA in a 5-4 decision.  I am not surprised by either of the facts stated in the previous sentence.  However, there are at least two other facts which I did not see coming at all.  First, the majority opinion was written by Chief Justice Roberts, who turned out to be the swing vote.  Second--and far more significant--the individual mandate was ruled to be a tax and thus expressly authorized under Congress's enumerated powers in the Constitution.

Here are two quotes from Roberts's opinion:

The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.

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[I]t is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but (who) choose to go without health insurance. Such legislation is within Congress’s power to tax.

So, I was right about one prediction--that the individual mandate would not be upheld on the basis of the Commerce Clause because that clause alone did not apply to the mandate--but I was wrong that such basis would be the Necessary and Proper Clause.

Instead, Roberts chose to avoid the truly major issue--the Necessary and Proper Clause--by ruling that the individual mandate is a tax.  Although I did not see that coming, it does make sense.  This approach seems like it addresses a major concern of mine, namely making any decision in this case a narrow one.  Trying to draft a narrow decision based on the Commerce and/or Necessary and Proper Clause was going to be a HUGE challenge, regardless of the outcome.  Roberts neatly dodged that problem.  Also, by ruling that the individual mandate is a tax, Roberts effectively put an end to any further Constitutional challenge--especially by strict constructionists--because the Constitution expressly gives the Congress the authority to tax.

Now, as to how this ruling might affect future cases (as in just what will be a tax or not and how that will impact everything), I have no idea, but I bet things will get interesting.  However, I don't as of yet see the potential for chaos that I have discussed before.

Last minute health care ruling analysis and predictions

The Supremes are supposed to hand down their decision on the PPACA (the health care reform act) perhaps today, and although it has been a year and a half since my semi-exhaustive analysis of the individual mandate, I have not provided a prediction as to the outcome--until now.

So here's a bit of final analysis and prognostication.  Based on prior precedent, the individual mandate should be upheld as constitutional.  That precedent includes recent opinions by none other than Scalia.  However, the Supreme Court is not required to follow precedent, and I am certain that the right wing bloc is dead set determined to overturn the individual mandate.  That does not mean they will, but they are looking for some way to do it.

The key provision in this case is not--contrary to most of the discussion out there--the Commerce Clause. The key is the Necessary and Proper Clause.  If the individual mandate is upheld, it will be because of the Necessary and Proper clause.  If the individual mandate is overturned, the decision will be based on the 1) the Commerce Clause and 2) significant alteration of the Necessary and Proper clause.

The big concern for me is not whether the individual mandate is declared unconstitutional.  Instead, my big concern is the impact such a decision will have on matters outside health care reform.  As I tried to explain earlier, any decision overturning the individual mandate really needs to be a narrow one.  Otherwise, we are looking at potential chaos the likes of which our country has not seen.  I'm not kidding.  As I said back on November 23, 2010,

However, such a ruling could have effects that go way beyond health care reform. Such a ruling could set the stage for dismantling all kinds of laws. Now I know that some people think that is a good thing, but I warn those folks to be careful what you ask for. That dismantling could become one huge, completely out of control metaphorical snowball. Trying to control the dismantling will be next to impossible. And anyone who might be concerned about there already being too much litigation already better get ready to have their heads explode, because there will be a huge increase in litigation. Our judicial system is neither designed nor equipped to handle a mass of change all at once.

Because of a huge need for such a decision to be narrow, I predict that a ruling of unconstitutionality will focus on the unique nature of health care insurance, which includes the definition of the term "the business of insurance" as used in the McCarran-Ferguson Act.  As I explained at length in my January 24, 2011, post, I think the health care insurance market is not interstate in nature.  I feel this is the true weak link in the case for upholding the individual mandate.

Even so, my analysis of the Constitutional law involved still leads me to the conclusion that under existing precedent, the Necessary and Proper clause controls, meaning that the individual mandate is constitutional.

I still am not going to predict what the ruling will be.  Predicting the basis and focus of the majority ruling is the most I can do.