John Roberts and the PPACA SCOTUS Ruling

By now we all know that the Supreme Court upheld the PPACA this morning in a 5-4 vote.  The dissenting Justices were of the opinion that the entire law should be thrown out, but Justice John Roberts voted with Justices Ginsburg, Breyer, Sotomayor and Kagen in the ruling that upholds the law, finding that the individual mandate is constitutional as a tax.

We have long said that the ACA without the individual mandate would be hobbled at best.  The individual mandate has been the portion of the law that was most hotly contested, and it was a large part of the Supreme Court arguments.  We realize that there are other options for increasing the size of the insured population, but a system with guaranteed issue health insurance and no individual mandate either becomes quite complicated in terms of eligibility, or else premiums skyrocket to account for significant adverse selection.

Guaranteed issue individual health insurance has long been a popular provision of the ACA, along with rules that remove lifetime benefit maximums, allow young adults to remain on their parents’ policies until age 26, and provide for preventive care with no cost sharing.  The individual mandate has not been as popular, but it would have been difficult to provide guaranteed issue coverage without a stipulation that everyone be insured.

Now that the ACA has been upheld by the high court, the states can continue their work to create health benefits exchanges with some degree of certainty that they are not wasting their time (Colorado has been making progress on its exchange for well over a year already, but there’s still much to be done).  There is of course an election cycle coming in a few months, and a full legislative year in 2013 that could result in changes – big or small, depending on the political outlook of the next congress – to the existing law.  But the fact that the Supreme Court has upheld the law as legally valid gives it a lot more credibility than it had yesterday.

There has been some surprise in the blogging world that Justice John Roberts sided with the majority on this one.  Many expected him to be of the opinion that the individual mandate and/or the entire ACA were unconstitutional.  But it’s important to note that at the time he was nominated by George W. Bush, his pro-government views were regarded as a positive attribute by conservatives.  Think back to the things that the government was trying to do in the middle of the previous decade.  Wire tapping, TSA expansion, indefinite detainment of suspected enemy combative in the war on terror, etc.  Those were issues where the government was pressing for more control, and conservatives were generally in support of that.  With a new administration led by a Democrat, there are different areas in which the government is seeking control and/or taxation.  While the individual mandate and wire tapping seem on the surface to be completely different topics, they’re both on the spectrum of government involvement in our lives, and government utilizing its powers to promote an agenda that it views as good for society at large (or, if you’re more cynical, you could say that it’s government utilizing its powers to promote the interests of the special interests du jour, but let’s avoid cynicism and say that it’s for things the government considers to be good for society).

Chief Justice Roberts’ vote in favor of the legality of the individual mandate isn’t as surprising as it might seem, if you look at his long-standing principles rather than partisan politics.  It’s only recently that the idea of an individual mandate has been a progressive one rather than a conservative one.  The individual mandate is an example of government using its powers of taxation in order to incentivize a behavior – in this case, an increase in the number of people who have health insurance.  Whether or not that particular motive and use of government power is “progressive” or “conservative” is very subjective, and has indeed changed over the years.  It would appear that Chief Justice Roberts was blind to politics on this one, and simply voted to uphold the government’s ability to use financial penalty (aka, a tax) to motivate behavior.  This is in keeping with his votes during the previous administration.  It might not be in keeping with the politics of the day, but it’s not as surprising as it seems as first glance.


About Louise Norris

Louise Norris has been writing about health insurance and healthcare reform since 2006. In addition to the Colorado Health Insurance Insider, she also writes for,, Verywell, Spark by ADP, and Boost by ADP, and Gusto. Follow on twitter and facebook.

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