An "Upholding" Health Care Act Harbinger -- At The Supremes?

First, the highly-esteemed Alice Greenhouse has made this same inference -- but by relying on the vast grants of power seen in Chief Justice Roberts' dissent: ". . .Our precedents do not ask for much from government in this area. . . we give great leeway to taxing authorities in this area, for good and sufficient reasons. . . ." in this same case, decided last week.

Indeed -- the bizarrely fractured opinions appear in a little case called Armour v. Indianapolis.

Instead of parsing Roberts' dissent, I'll focus on the fact that the majority in Armour attracted the votes of both Justices Kennedy and Thomas. Justice Thomas' vote thus suddenly becomes a vote in play -- in the health care case, in my opinion.

Afterall, Justice Thomas had the option of signing on with the Chief Justice in dissent ("how dare the government treat taxpayers so inequitably?," the inner-Libertarian in Thomas could be heard to cry!), and the majority would still have been 5-4, in favor of deference to a taxing scheme. But that did. not. happen.

That is, the dissent would not have attracted a majority -- unless it could have convinced Justice Kennedy (as well as Thomas) that having one group of homeowners pay 30 times more taxes than their neighbors was a violation of the 14th amendment.

Thirty times. And both Justice Thomas and Justice Kennedy held that the city could lawfully so tax local property-owners in Indianapolis -- relying primarily on the idea that the city said it was more convenient to do so, than to refund the overpayments.

Yes -- I agree with Ms. Greenhouse -- this has implications -- related to health care. The Affordable Care Act of 2010 (derisively called "Obamacare" by many opponents) will stand -- with perhaps only minor modifications -- as early as this coming Monday.

Here is a bit of the actual majority, in Armour then:

. . . .As long as the City’s distinction has a rational basis, that distinction does not violate the Equal Protection Clause. This Court has long held that “a classification neither involving fundamental rights nor proceeding along suspect lines . . . cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe, 509 U. S. 312, 319–320 (1993); cf. Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 155, 165–166 (1897). We have made clear in analogous contexts that, where “ordinary commercial transactions” are at issue, rational basis review requires deference to reasonable underlying legislative judgments. United States v. Carolene Products Co., 304 U. S. 144, 152 (1938) (due process); see also New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam) (equal protection). And we have repeatedly pointed out that “[l]egislatures have especially broad latitude in creating classifications and distinctions in tax statutes.” Regan v. Taxation With Representation of Wash., 461 U. S. 540, 547 (1983); see also Fitzgerald v. Racing Assn. of Central Iowa, 539 U. S. 103, 107–108 (2003); Nordlinger v. Hahn, 505 U.S. 1, 11 (1992); Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356, 359 (1973); Madden v. Kentucky, 309 U. S. 83, 87–88 (1940); Citizens’ Telephone Co. of Grand Rapids v. Fuller, 229 U.S. 322, 329 (1913).

Indianapolis’ classification involves neither a “fundamental right” nor a “suspect” classification. Its subject matter is local, economic, social, and commercial. It is a tax classification. And no one here claims that Indianapolis has discriminated against out-of-state commerce or new residents. . . .

Hence, this case falls directly within the scope of our precedents holding such a law constitutionally valid if “there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” Nordlinger, supra, at 11 (citations omitted). And it falls within the scope of our precedents holding that there is such a plausible reason if “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993); see also Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78 (1911). . . .

There was scarcely a moment's discussion in the two and a half days of oral argument from the opponents about whether the Act (styled as a tax, mind you!) was rationally-related to a goal that Congress was heading toward.

No, the whole focus was whether Congress could legitimately head toward that goal, at all. And I think that at least five Justices (and perhaps six, with Thomas now in play) think the goal was one within the domain of the Congress. Other precedents require the Court to look for all possible means to uphold a valid exercise of Congressional power. But the Court won't need to do so. It will hold that the mandate is a valid taxing measure.

Of course -- I could be wrong. But that's almost all the fun of making predictions -- getting to called out -- either way.

Namaste