Jottings By An Employer's Lawyer

Thursday, June 28, 2012

Obamacare Decision: The Perils of Instant Analysis and Related Thoughts

I have not and will probably not read today's Supreme Court decision holding that the Affordable Care Act is (for the most part) constitutional any time soon.

But I did have a couple of thoughts on what has happened so far.

First, my first notice of the results came from a CNN email at 9:09 a.m. (CDST)
The Supreme Court has struck down the individual mandate for health care - the legislation that requires all to have health insurance.

Nine minutes later, I received the following from CNN:
Correction: The Supreme Court backs all parts of President Obama’s signature health care law, including the individual mandate that requires all to have health insurance.
And just to be fair, at 10:04, CNN seems to have finally gotten the basic result down:
Chief Justice John Roberts led the Supreme Court’s 5-4 decision upholding President Obama’s sweeping health care law.
The president is expected to speak later today on the ruling that supports the core legislative accomplishment of his administration.
The court decided that the individual mandate that requires all Americans to have health insurance will stand and is considered a tax by the court, making it constitutional.
Chief Justice John Roberts wrote about the individual mandate, citing the taxing clause: “It is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without insurance. Such legislation is within Congress’ power to tax."
The court also ruled that the federal government may not remove Medicaid funding from states that refuse to take part.
Voting to uphold the Affordable Care Act were R oberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. The dissenters were Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.
Now besides a little temporary embarrasment on the part of CNN, which I would imagine is already gone, the errors they made in their initial reporting matters not.  My guess as to what happened, is they wanted to be first, they read the opinion and saw that the Administration had lost on the Commerce Clause issue and assumed that meant the mandate had fallen. When they figured out that the Administration had prevailed under the taxing clause on the mandate, they rushed to correct that, and mis-stepped again because they had not made it to the part where the Court held Congress over-reached in its putting conditions on states for the receipt of Medicaid funding.

But this brief interplay, reminded me once again that the speed with which our world now operates often times does a great disservice to the quality of advice that is given.  When we operate at hyper speed, the time for reflection and discernment is often a casualty. It didn't really matter here, but when giving advice as lawyers do every day, operating at that speed can easily cause serious error.

Secondly, although we are all told on appeal to limit our number of arguments and focus on our strong ones, today's decision points out the importance of having a Plan B. While everyone focused on the commerce clause and the hope that Justice Kennedy would be the 5th vote to support its use, who ever insisted that the fall back position of the taxing clause be there, should be getting large pats on the back by the supporters of the bill.

Having recently won an appeal (at least so far) where there were 3 separate opinions, and the two judges who voted in the favor of our position did so for different reasons, I personally know how important that Plan B can be.

On the political note there has been and will be even more analysis of how this impacts the Presidential race. Although President Obama is no doubt happy with today's outcome (except for the Medicaid portion) I doubt that much thought had been given to how it would be to run when the healthcare law was supported only because it was a "tax." Justice Roberts may have given President Obama a substantive victory, but my guess is that he at least gave Romney and the Republicans a rhetorical boost.

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