Without having read the links varminter gave us, I thought to place my own thoughts on this decision.
First, I think we need to look at what the questions were, that the Court granted certiorari on.
From NFIB v. Sebelius (11-292) we have:
The question presented is whether the ACA must be invalidated in its entirety because it is non-severable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.
From Florida v. Dept. of H&HS (11-400) we have:
1. Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?
2. May Congress treat States no differently from any other employer when imposing invasive mandates as to the manner in which they provide their own employees with insurance coverage, as suggested by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), or has Garcia‘s approach been overtaken by subsequent cases in which this Court has explicitly recognized judicially enforceable limits on Congress‘s power to interfere with state sovereignty?
3. Does the Affordable Care Act‘s mandate that virtually every individual obtain health insurance exceed Congress‘s enumerated powers and, if so, to what extent (if any) can the mandate be severed from the remainder of the Act?
From Dept. of H&HS v. Florida (11-398) we have:
1. Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.
Petitioners also suggest that the Court direct the parties to address the following question:
2. Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. 7421(a).
In granting cert to 11-393 and 11-400, the Court agreed to the following:
The petition for a writ of certiorari in No. 11-393 is granted. The petition for a writ of certiorari in No. 11-400 is granted limited to the issue of severability presented by Question 3 of the petition.
In granting cert to 11-398, the Court agreed to this:
The petition for a writ of certiorari is granted. In addition to Question 1 presented by the petition, the parties are directed to brief and argue the following question: "Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. §7421(a)."
Separately, in granting cert to 11-400, the Court said:
The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.
Phrased another way, the Court asked
whether or not the act was constitutional and if not, could certain portions be severed from the act.
So then, we have:
Four Justices said it was perfectly fine. Four justices said it was flatly beyond the reach of the authority of Congress granted by the Constitution.
The controlling opinion (decision) was therefore penned by Chief Justice Roberts.
In reaching his decision, CJ Roberts agreed with Scalia, Kennedy, Alito and Thomas, that under the Commerce Clause, it was beyond the power of the Congress. CJ Roberts then used the constitutional avoidance doctrine to define the penalty a tax, and therefore the act was constitutional under the taxing power of the Congress.
Having reached the conclusion that the act was constitutional, CJ Roberts did not have to reach to the question of severabilty.
What CJ Roberts did not do was to decide that the tax was a constitutional tax, as defined. That was not necessary to the decision.
That leaves open the question of whether this is a direct tax, in direct violation of the taxing powers of Congress.
There was one other thing that CJ Roberts did, that in my mind was entirely wrong. He
rewrote the act to say that the Medicaid enhancements appropriations only could be withheld from the States that did not implement the new Medicaid rules. This is a rewrite, since the act is specific in that States that do not enter into the new enhanced Medicaid plan were to lose
ALL Medicaid funding.
This last part was beyond the authority of the Court. The Judicial branch can rule on applicability of an act, but cannot rewrite an act.
The above, in my opinion, are the salient points to the decision from last week.
