Ever since the Supreme Court heard oral argu­ments on the con­sti­tu­tion­al­ity of the Patient Pro­tec­tion and Afford­able Care Act (PPACA, “Oba­macare”) indi­vid­ual man­date, pun­dits have been pre­dict­ing that the man­date is dead. The remain­ing ques­tion would then be: will the Supreme Court find the law sev­er­able, that is, can the man­date be ruled uncon­sti­tu­tional but the rest of the law stands? Or does the whole thing go down because of an unac­cept­able mandate?

The Supreme Court finally answered today. By a five-​​to-​​four vote (Jus­tices Breyer, Gins­burg, Kagan, and Sotomayor dis­sent­ing), the indi­vid­ual man­date was tech­ni­cally struck down as a vio­la­tion of the Com­merce Clause, but by a dif­fer­ent five-​​to-​​four vote (Jus­tices Alito, Kennedy, Scalia, and Thomas dis­sent­ing) the fine for being unin­sured was not. In that regard, the Court threaded the nee­dle, object­ing to the “ille­gal­ity” of being unin­sured, while leav­ing the rel­e­vant penalty in the Act unchanged.

This deci­sion is cer­tainly a huge win for the Obama admin­is­tra­tion at first blush. But it may prove to be less of a win for Obama himself.

I’ll explain that in greater detail in a bit, but first let’s exam­ine what just happened.

The man­date took on the form of revi­sions to sec­tion 5000A(a) of the Inter­nal Rev­enue Code of 1986. From Chap­ter 48 of PPACA (sec­tion breaks and des­ig­na­tors removed):

If a tax­payer who is an applic­a­ble indi­vid­ual, or an applic­a­ble indi­vid­ual for whom the tax­payer is liable … fails to meet the require­ment … for 1 or more months, then, [bar­ring an accept­able excep­tion] there is hereby imposed on the tax­payer a penalty.

Sub­sec­tion (a) sets the require­ments for an accept­able health plan:

The term ‘min­i­mum essen­tial cov­er­age’ means any of the following:

GOVERNMENT SPONSORED PROGRAMS.—Coverage under the Medicare pro­gram … the Med­ic­aid pro­gram … the CHIP pro­gram .… TRICARE … veteran’s health care pro­gram, or a health plan [for] Peace Corps vol­un­teers.
EMPLOYER-​​SPONSORED PLAN.—Coverage under an eli­gi­ble employer-​​sponsored plan.

PLANS IN THE INDIVIDUAL MARKET.—Coverage under a health plan offered in the indi­vid­ual mar­ket within a State.

GRANDFATHERED HEALTH PLAN.—Coverage under a grand­fa­thered health plan.

OTHER COVERAGE.—Such other health ben­e­fits cov­er­age, such as a State health ben­e­fits risk pool, as the Sec­re­tary of Health and Human Ser­vices … rec­og­nizes for pur­poses of this subsection.

The Court con­cluded that the “shared respon­si­bil­ity pay­ment” charged to those who do not have med­ical cov­er­age does, in fact, amount to a tax. And there is a long his­tory of taxes being attached to people’s behav­iors, such that they can change behav­ior to avoid a tax. Since Con­gress has the author­ity to impose taxes, that makes the man­date constitutional.

The Court’s deci­sion to not per­mit the law under the Com­merce and Nec­es­sary & Proper Clauses lays an impor­tant prece­dent. It is, in essence, a shot across the bow of Con­gress to warn that coer­cion through tax­a­tion may be fine, but not man­dat­ing behav­ior with stronger force, such as criminality.

In any case, because the mandate-​​as-​​tax was upheld, sev­er­abil­ity became moot.

The pun­dits felt, based on oral argu­ments, that the man­date was a dead let­ter. This is reflected in the Intrade bet­ting mar­ket on the death of the indi­vid­ual man­date, start­ing with oral argu­ments on March 27:

Before oral argu­ments, the con­sen­sus was that the man­date had about a 50 per­cent chance of sur­vival. After the news of the oral argu­ments set­tled in, with CNN’s ana­lyst Jef­frey Toobin mak­ing a strong case for the death of the man­date:

This still looks like a train wreck for the Obama admin­is­tra­tion, and it may also be a plane wreck. This entire law is now in seri­ous trou­ble. It also seems that the indi­vid­ual man­date is doomed. I mean, Anthony Kennedy spent much of this morn­ing talk­ing about if we strike down the indi­vid­ual man­date, how should we han­dle the rest of the law? Now, it is less clear that they are going to strike down the whole law. There does seem to be some con­tro­versy in the court about that. Cer­tainly there are some mem­bers of the court — Antonin Scalia, Jus­tice Alito — who want to strike down the entire law, but it seemed almost a fore­gone con­clu­sion today that they were going to strike down the indi­vid­ual man­date, and the only ques­tion is does the whole law go out the win­dow with it?

After Toobin’s words sunk in, the mar­kets pushed the per­cent­age chance up to 60⁄40. The buzz around the death of the man­date meme grew, so that by the day before the deci­sion, the chance was 80⁄20. In this case, the pun­dits were right.

Other court observers, such as SCOTUSblog’s Amy Howe, were more san­guine about the chances for the mandate’s sur­vival. She wrote at the time:

With sev­eral Jus­tices appar­ently dubi­ous of the government’s argu­ments, two exchanges toward the end of Carvin’s argu­ment stood out as poten­tially help­ful to the gov­ern­ment and may have given at least a glim­mer of hope to the mandate’s sup­port­ers.  The first came from Jus­tice Elena Kagan, who asked Carvin whether he might have an eas­ier argu­ment if he weren’t argu­ing that the man­date is always uncon­sti­tu­tional, but instead that the man­date is at least uncon­sti­tu­tional as it applies to spe­cific peo­ple (for exam­ple, Chris­t­ian Sci­en­tists) who clearly were not going to be a part of the health care mar­ket and, by declin­ing to buy insur­ance, would not incur health care costs that would be shifted to the rest of us.  That line of rea­son­ing might pro­vide the Court with a way to uphold the man­date gen­er­ally, while leav­ing open the pos­si­bil­ity that indi­vid­u­als who object to the man­date could still chal­lenge it.

The sec­ond, and pos­si­bly even more impor­tant, com­ment came from Jus­tice Anthony Kennedy, a key swing vote on the Court.  Jus­tice Kennedy appeared to voice some sym­pa­thy for the government’s argu­ment that the health care mar­ket is “unique.”  Even if a healthy young per­son with­out insur­ance may not need health care in a par­tic­u­lar time period, he rea­soned, that young per­son will nonethe­less be “very close” to hav­ing an effect on insur­ance rates – for exam­ple, on the the­ory that, as he ages, he will even­tu­ally need care that he can’t afford with­out insur­ance – in a way that just doesn’t hap­pen in other markets.

In this case, Jus­tice Kennedy came down on the side of the uncon­sti­tu­tion­al­ity of the man­date, which was pre­dicted by his mus­ings in response to Solic­i­tor Gen­eral Verrelli’s argument:

But the rea­son, the rea­son this is con­cern­ing, is because it requires the indi­vid­ual to do an affir­ma­tive act. In the law of torts our tra­di­tion, our law, has been that you don’t have the duty to res­cue some­one if that per­son is in dan­ger. The blind man is walk­ing in front of a car and you do not have a duty to stop him absent some rela­tion between you. And there is some severe moral crit­i­cisms of that rule, but that’s gen­er­ally the rule.

And here the gov­ern­ment is say­ing that the Fed­eral Gov­ern­ment has a duty to tell the indi­vid­ual cit­i­zen that it must act, and that is dif­fer­ent from what we have in pre­vi­ous cases and that changes the rela­tion­ship of the Fed­eral Gov­ern­ment to the indi­vid­ual in the very fundamental

Yet, in a sur­prise move, Kennedy was not the swing vote in this deci­sion; Roberts was.

The only restric­tion of sub­stance to come out of this deci­sion was a warn­ing that the fed­eral gov­ern­ment may not with­hold Medicare funds to states that are in com­pli­ance with the law as it existed prior to the PPACA.

As I said above, this deci­sion looks like a huge win for the Obama admin­is­tra­tion, yet not nec­es­sar­ily for Obama.

To be sure, for those who under­stand what it means to be sub­ject to annual and life­time caps, and restric­tions on cov­er­age for pre­ex­ist­ing con­di­tions, this is clearly a big win for all of us. But most Amer­i­cans are blithely unaware that there are issues with pre­ex­ist­ing con­di­tions. After all, a major­ity get their cov­er­age through their employ­ers, and employer-​​supplied cov­er­age rarely excludes pre­ex­ist­ing con­di­tions in the first place. And for those whose poli­cies do exclude pre­ex­ist­ing con­di­tions, a rel­a­tively small per­cent­age of them ever find them­selves in need of treat­ment for one. The same can be said for life­time caps. Few peo­ple know that they’re there, and fewer still real­ize how easy it is to bump into those restrictions.

So, while it ben­e­fits those who don’t yet know they’ll need it, most Amer­i­cans won’t even notice the pre­ex­ist­ing con­di­tion and life­time cap changes.

Fur­ther­more, many Amer­i­cans are woe­fully igno­rant about the very exis­tence of the law. Nearly a quar­ter of Amer­i­cans polled in Feb­ru­ary believed that the PPACA had already been repealed. With the sig­nif­i­cant press sur­round­ing today’s rul­ing, the num­ber who today believed that it had been repealed prior to Feb­ru­ary is most likely sig­nif­i­cantly lower. Nonethe­less, this points to upcom­ing polit­i­cal pos­tur­ing from the Republicans.

Expect to hear for the next sev­eral months that the oh-​​so-​​unpopular Oba­macare is still around, and won’t go away until Obama goes away. This will still be a some­what dif­fi­cult pos­ti­tion for Repub­li­can Pres­i­den­tial can­di­date Mitt Rom­ney to take, since it will require that spend time defend­ing his ear­lier actions with respect to Romneycare.

And that mes­sag­ing will put Democ­rats on the defen­sive. As should be abun­dantly clear by now, when it comes to mes­sag­ing, Democ­rats lose the mes­sag­ing bat­tle when­ever nuance enters into the equa­tion. Yet the response must nec­es­sar­ily be nuanced: “Yes, the man­date remains, but the life­time caps and pre­ex­ist­ing con­di­tion cov­er­age go along with that.” Yeah, that fits on a bumper sticker just fine, doesn’t it?

The deci­sion, then, hands a cam­paign­ing gift to the Repub­li­can Party, and pro­vides to them a ral­ly­ing cry of “Defeat Obama to Defeat Obamacare!”

In the end, then, we’re left with the real­iza­tion that both sides got some­thing they wanted. Democ­rats got the pol­icy, and Repub­li­cans got mes­sag­ing for this year’s cam­paigns. Just as with Ari­zona v. United States ear­lier this week, you can be sure Repub­li­cans will walk away declar­ing vic­tory, even when the real­ity is exactly the oppo­site. And it seems that a sub­stan­tial per­cent­age of Amer­i­cans will believe them.

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