Why the Halbig Decision Should Be Taken Seriously

By Sean Trende - July 23, 2014

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Second, and equally important, think back to 2012. Analysts were appalled at the idea that the court would strike down the individual mandate on Commerce Clause grounds. The idea of limits on the spending power were so novel that the two lower courts failed to find for plaintiffs on that matter even while striking down the mandate. 

But -- this is forgotten -- the court did just that.  The chief justice actually crafted his opinion in such a way as to ensure that his writings on the Commerce Clause were not written off as dicta, and convinced two liberal justices to join him on the spending-power argument.

In other words, John Roberts cares mostly about doctrine, and doctrinally he got everything he wanted and more. He sacrificed a political outcome to do so. But whenever anyone cites the 2012 decision, it will be for the proposition that the Commerce Clause has limits, and that Congress’ power of the purse cannot be used to coerce states to adopt laws. That is a win for the conservatives on the court.

It is unclear how Roberts can achieve such an outcome here.  If the court does take the case, I am not sure how it does that without creating a powerful nationwide precedent for a more liberal approach to statutory interpretation. Because of the unique circumstances of the law, he may ultimately be willing to do that. I don’t think, however, that you can simply look at his vote in 2012, and be certain that he would behave similarly in 2015.

Finally, let’s remember that if the court really does follow popular opinion, it doesn’t bode well for the law. The court might remove subsidies from several million people, but it would also be crippling a law that is still pretty unpopular. I’m not sure this calculus will play out the same with Roberts (and Kennedy), as many seem to believe.

Of course, the fact that this would just be thrown back into the political arena has real consequences, which I don’t think opponents and supporters of the law appreciate.  The Medicaid expansion has proved vexing for Republicans, especially in purple states. The politics here are even worse, as this is spending for middle-class voters, rather than the poor, and there really is no cost to setting up the exchange in exchange for billions in subsidies.  It is hard to say with certainty how this plays out with a public that often doesn’t have much patience with details, but one can pretty easily see how Democrats could use the issue to their advantage.

Regardless, this was always a serious challenge to the ACA.  It just became much more so. I don’t think the court will ultimately strike down the subsidies, but I wouldn’t put much more than 50-50 odds on that proposition now.

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Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at Follow him on Twitter @SeanTrende.

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