Jackson Lennock
Well-known member
In the Obamacare case, Roberts voted with the Conservatives to nix the individual mandate as beyond the commerce clause. The Justices didn't even vote on the tax issue after oral argument because so little attention had been directed to the matter by the litigants.
But Roberts was always the swing vote. He disagreed with his conservative colleagues on how much of Obamacare could be saved. The other four conservatives believed the whole law had to fail because the statute didn't include an explicit severability clause (meaning "if part of this is unconstitutional, please separate it from the rest of this"). Roberts thought the only part of Obamacare that really was inseparable from the individual mandate were the "community rating" (prevents health insurers from varying premiums within a geographic area based on age, gender, health status or other factors) and "guarantee issue" (a requirement that health plans must permit you to enroll regardless of health status, age, gender, or other factors that might predict the use of health services) provisions of the law. Stuff like the exchanges, subsidies, contraceptive requirements, allowing people to stay on their parents' plans until age 26, medicaid expansion, etc. seemed separate enough that he thought it was dumb to strike the whole law down.
When Justice Kennedy wouldn't talk to Roberts about a compromise, Roberts ended up talking to Kagan and Breyer instead. Roberts looked into the tax issue some more and changed his mind there. Roberts also shifted
A big question I have is the following: what if Kennedy compromised with Roberts? The Medicaid expansion would have been struck entirely as "coercive," rather than made an optional thing for the states. The individual mandate would have been struck down, and the tax argument wouldn't have been addressed at all. Democrats would maybe get a boost in the upcoming election since Medicaid expansion was more popular. But the core reform - restructuring the marketplace, the employer mandate, and increased requirements for what plans had to cover - would have been left intact.
But Roberts was always the swing vote. He disagreed with his conservative colleagues on how much of Obamacare could be saved. The other four conservatives believed the whole law had to fail because the statute didn't include an explicit severability clause (meaning "if part of this is unconstitutional, please separate it from the rest of this"). Roberts thought the only part of Obamacare that really was inseparable from the individual mandate were the "community rating" (prevents health insurers from varying premiums within a geographic area based on age, gender, health status or other factors) and "guarantee issue" (a requirement that health plans must permit you to enroll regardless of health status, age, gender, or other factors that might predict the use of health services) provisions of the law. Stuff like the exchanges, subsidies, contraceptive requirements, allowing people to stay on their parents' plans until age 26, medicaid expansion, etc. seemed separate enough that he thought it was dumb to strike the whole law down.
When Justice Kennedy wouldn't talk to Roberts about a compromise, Roberts ended up talking to Kagan and Breyer instead. Roberts looked into the tax issue some more and changed his mind there. Roberts also shifted
A big question I have is the following: what if Kennedy compromised with Roberts? The Medicaid expansion would have been struck entirely as "coercive," rather than made an optional thing for the states. The individual mandate would have been struck down, and the tax argument wouldn't have been addressed at all. Democrats would maybe get a boost in the upcoming election since Medicaid expansion was more popular. But the core reform - restructuring the marketplace, the employer mandate, and increased requirements for what plans had to cover - would have been left intact.