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Like others I did not anticipate how the Supreme Court would rule. I expected it to be upheld, because I believed the case to be about the integrity of the Supreme Court as an institution because of the Bush-Gove decision. I expected Justice Kennedy to provide the majority because of this, but he sided with the majority, finding no support for the individual mandate under the Commerce Clause. It was Chief Justice Roberts in the spirit of his role model, Chief Justice Marshall, who did the star turn. By doing this the Chief Justice found a politically astute way of reaching a conclusion he could have easilty avoided. First the Court chose to rule on the individual mandate rather than to defer the issue as it does not come into effect until 2014. Second, the Chief Justice chose to throw his conservative supporters a political bone by upholding the law as a tax and seemingly ignoring the uniqueness of insurance. The Chief Justice could have recognized that not purchasing insurance is in fact the act of self-insuring, and as an act with interstate commerce affect, could be regulated under the Commerce Clause. Insurance is based upon actuarial developed reserves created by a large pool of risk premium upon which investment income is earned over time in order to pay current and future loss. It is already regulated by ERISA in terms of self-insured plans, and by the states under third party (insurer) plans. Broccoli it ain’t. With political payback shield against Federal power under the Commerce Clause the Chief Justice chose as his sword Congress’ tax power. It is an easier sound bite for the election.

With one thrust the Chief Justice upheld the integrity of the Court, recognized that Congress and the President had legitimately acted and industry had already implemented a substantial portion of the health coverage scheme. Overturning the entire law would have created economic havoc and risked the Court losing its lessened public aura of neutrality. Deferring the mandate would not have made it a political issue that could galvanize the conservative base to support Romney, who was already held in low esteem by that constituency. Upholding it as a tax would galvanize that base and provide an opportunity to win back the Senate and the Presidency and overturn ACA in whole or in part. As I mentioned in my prior blog about this, the Chief Justice asked smart questions and his decision reflects a shrewd mind.

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