FYI ... Roberts Did NOT Uphold the Individual Mandate

I'll have more to say on the politics of the Supreme Court's ruling on health care later today or tomorrow but one thing that strikes me as worthy of note is how the vast majority of the media's coverage is (predictably) wrong.

I'm not talking about the really, really initial reads of the ruling from CNN and Fox that were really, really wrong.

I'm talking about the general takeaway that most everyone seems to have (like this story from CNBC) that the individual mandate was upheld. I'm sorry but I just don't see Roberts saying that in his opinion ... and his is the one that counts.

Roberts spends many, many pages of his decision outlining why the Congress does not have the ability to impose the individual mandate under its commerce clause power. Then, he turns to the government's alternate argument, that Congress can compel people to buy insurance or face a penalty in the form of a tax. Roberts buys this argument and says that provision of the law passes constitutional muster. But he is careful to point out that it passes constitutional muster precisely because purchasing insurance under the law is a "choice." Let's look at one key passage of Roberts's opinion in detail:

While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that the failure to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law. Brief for United States 60-61; Tr. of Oral Arg. 49-50 (Mar. 26, 2012). Indeed, it is estimated that four million people each year will choose to pay the IRS rather than buy insurance. See Congressional Budget Office, supra, at 71. We would expect Congress to be troubled by that prospect if such conduct were unlawful. That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance

Roberts goes on to point out that those who wanted the law struck down have misinterpreted the language in the law that says that individuals "shall" obtain insurance as meaning it is criminal not to obtain insurance. But there is no criminal penalty. Indeed, in a key footnote (#11), Roberts makes this distinction even more clear.

Of course, individuals do not have a lawful choice not to pay a tax due, and may sometimes face prosecution for failing to do so (although not for failing to make the shared responsibility payment, see 26 U.S.C. S5000A(g)(2)). But that does not show that the tax restricts the lawful choice whether to undertake or forgo the activity on which the tax is predicated. Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax.

What Roberts is effectively saying here is that there is NO mandate even though the law says individuals "shall" purchase health insurance. He is reading the two provisions (the mandate and the penalty) holistically and saying they pose a choice to individuals. You can do one or the other but you cannot do neither.

Putting all this together, Roberts did NOT uphold the individual mandate. Indeed, he says quite explicitly such a mandate would not be constitutional. Fortunately, Roberts continues, the law doesn't impose a mandate! It provides individuals with a choice. You can buy insurance or you can pay this penalty over here. It is absolutely legal not to buy insurance.

Just to make this a little more confusing, Roberts himself seems to suggest I'm wrong about what he's up to by saying in a few places he is "upholding" the individual mandate. See page 42 of his opinion where he uses this kind of language twice in one paragraph:

Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power.

So, it seems the media is saying Roberts "upheld" the individual mandate and it seems Roberts it saying he's "upholding" and "sustaining" the individual mandate ... but he didn't. Pretty tricky!