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Marbury v. Madison Redux?

Is today’s decision upholding the Affordable Care Act the new Marbury v. Madison, a dramatic case that alters the nation’s checks and balances? Chris Geidner compares the texts.

The cases are 209 years apart, but just below the surface, the similarities between Marbury v. Madison, the landmark Supreme Court case establishing judicial review, and today’s decision upholding the health-care law’s individual mandate are striking.

In his 2008 book The Activist, Lawrence Goldstone detailed the circumstances of Marbury, which addressed the power of the court to strike down federal laws.

Goldstone wrote of Chief Justice John Marshall, a federalist who wanted to avoid granting more authority to the new president, Thomas Jefferson, “He knew all too well that if he sided with his fellow federalist [William Marbury, who had filed a lawsuit against Jefferson’s administration with the Supreme Court], Jefferson would simply refuse, and Marshall had no means to compel him to comply. The court’s authority would therefore be weakened, thus defeating the federalist scheme to maintain its power through the judiciary.”

But deciding the other way would have been using the federalist-heavy courts to “strengthen Jefferson’s power,” which would have been “equally unpalatable.”

After this morning’s ruling, law professor David Bernstein wondered about the Supreme Court’s authority (or at least the public perception of it): “[W]as [Roberts] responding to the heat from President Obama and others, preemptively threatening to delegitimize the court if it invalidated the ACA?”

There is no reason to think that President Obama would not have complied with today’s ruling if it had gone the other way, but that doesn’t mean he would take it lying down. As the political reporter Marc Ambinder tweeted earlier this week, “The [White House] has exec[utive] orders [ready to go] if ACA is struck down. Their content and timing I don’t know. But they’ve got contingency plans a-plenty.”

Supreme Court Chief Justices John Roberts and John Marshall

Supreme Court Chief Justice John Roberts (left) and Justice John Marshall. (Getty Images; AP Photo)

The bottom line is that both Marshall and Roberts were writing their opinions in the face of intense political pressure and competing views of the proper scope of government power. In 1803, as Goldstone wrote, “Marshall found a way through the thicket.” Roberts did the same today.

Although it upheld the individual mandate, the court reaffirmed the traditional view that there must be a judicially enforceable limit on the powers of Congress, writes Randy Barnett.

This is a bittersweet day for our Constitution and the system of federalism it established. First the sweet: today the Supreme Court reaffirmed that Article I of the Constitution does provide limits on the powers of Congress that are enforceable in the courts.

Tea Party Health Care

The national furor over the constitutionality of the individual insurance mandate may signal a turning point in constitutional law—one driven not by the courts but by the people themselves. (Chris Maddaloni, CQ Roll Call / Getty Images)

In his majority opinion, Chief Justice John Roberts accepted all of our arguments about why the individual insurance mandate exceeded the Commerce Clause: “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” he wrote. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”

The majority also accepted our argument about the Necessary and Proper Clause. “Even if the individual mandate is ‘necessary’ to the Act’s insurance reforms,” it wrote, “such an expansion of federal power is not a ‘proper’ means for making those reforms effective.”

Finally, for the first time since the New Deal, the Supreme Court invalidated a law because it improperly coerced the states, and thereby exceeded Congress’s spending power.

'Newsbeast Live: Our expert panelists react to the Supreme Court ruling.'

Now the bitter part: the court rewrote the “penalty” enforcing the mandate to be a “tax” and upheld it. The good news here is that, while Congress can use its tax powers to incentivize conduct, it will be limited to monetary incentives. Had its Commerce Clause claim been upheld, in the future it could have punished noncompliance with congressional purchase mandates with any penalty—up to and including imprisonment.

The bitter part of this decision will now be addressed by the American people at the polls, where they can reject the imposition of this new judicially created “tax.” Indeed, the next president can even waive its collection!


The Supremes’ Poker Faces

While the country waited to hear the fate of Obamacare, the mood inside the court was tense, hushed—and all business.

The sidewalk in front of the Supreme Court looked a bit like a carnival Thursday morning, as competing chants rang out.

SCOTUS reporters

Reporters run from the U.S. Supreme Court with today's health-care decision in hand (Mark Wilson / Getty Images)

“Hey, hey, ho, ho. Obamacare has got to go!” was one cry.

A man in a Revolutionary War hat waved a sign that said, “Don’t Tread on Me.”

And in front of a placard that said “Medicare for All,” a couple of women dressed as belly dancers moved to the sound of a reedy trumpet.

But inside the Supreme Court building, it was all business. This is an efficient operation with its own police force, café, and gift shop. About 160 lucky Americans, many of whom had waited outside all night to hear the historic ruling on health-care reform, were finally allowed in and were now standing in single file in a corridor. They’d been issued orange admission cards stamped with their place in line.

The first on line was Carol Anderson, a blonde woman who says she works as a researcher for a living and believed the law “will force Catholics to go against their conscience.” She had tucked her admissions card, stamped with the number one, into a framed picture of the Virgin Mary. She said she got to courthouse at 12:30 PM yesterday: “Some kind reporter from CBS lent me his folding chair. When you hit 50 and you don’t get sleep, it affects you more then when you are 20.”

Behind her, with admissions card No. 2, stood Laura Brennaman, a registered nurse who had flown in from Ft. Myers, Fla., an ardent supporter of the bill. Though Brennaman and Anderson hold opposing views on the Affordable Care Act, they barely discussed it for the 20 hours they sat next to each other. Brennaman says she’d waited in relative comfort. “I brought a little camping folding chair,” she said. “It reclines. I probably slept a total of an hour last night. But I can sleep on the plane back. And I brought some trail mix and some tuna fish in a can. I’m good.”

What does the Supreme Court’s health care ruling mean for you and me? To answer this question, The Daily Beast rounded up a panel of legal experts to help translate the court’s 193-page document detailing its decision. See their reactions.

This morning the Supreme Court released its long-awaited decision on the constitutionality of Obamacare, voting to uphold the law. In a 193-page document, the justices detailed their specific rulings on all aspects of the Affordable Care Act, originally passed by Congress in 2010. To help decode the dense statement, we’ve asked a panel of legal experts to take a look at the document and help explain what it means for ordinary Americans. Check out the margins on the document below for a better understanding of the court’s landmark decision.

For any specific questions or aspects of the statement you would like explained, email


Stirred Up

Romney’s Obamacare Bounce

The rage on the right will help fire up support for the GOP’s not-so-fiery nominee. Matt Latimer on how the high-court ruling helps Mitt’s cause.

In Washington the most important question surrounding the Supreme Court’s Obamacare decision is not how the ruling will impact the health care of millions of Americans. Nor is it about the implications of the decision for the future of the high court. Nor about the decision’s potential impact on the federal economy.  Instead the most important question is, who won?

It is safe to say the answer is not Chief Justice John Roberts, the telegenic, young(ish) George W. Bush appointee whose mere mention was a certain Republican applause line in the waning days of the Bush administration (where applause lines, like spending cuts, faced dire shortages.) “The chief justice who singlehandedly saved Obamacare” was probably not the epitaph Bush partisans expected when Roberts was nominated for the high court. It is possible that over time Roberts’s curious decision to cite Obamacare as a mammoth, but constitutional, tax increase will provide more ammunition for those seeking to repeal the law. That is not the attitude of most conservatives today, however, who now refer to their onetime judicial hero as a sellout and “traitor.”


Romney makes a statement in response to the Supreme Court ruling on the Affordable Care Act. (Alex Wong / Getty Images)

As for the presidential race, the decision at first blush is clearly a victory for the president. Obama is saved the embarrassment of the Supreme Court ruling his signature legislation a blatant violation of America’s bedrock constitutional principles. He also is spared the agony of having to introduce new health-care legislation, which almost certainly would have led to another bitter photo-finish fight in Congress. 

In the longer term, however, the decision is more likely a victory for Gov. Mitt Romney, who remains in search of an issue—any issue—to rally a conservative base that still views his campaign with the enthusiasm of a dentist appointment, followed by a trip to the DMV, en route to a funeral, after a time-share presentation. “Repeal Obamacare Now” presents Romney’s best opportunity to change that sentiment, by channeling the fury and disappointment of Red State America behind him. 

Indeed, within minutes of the landmark decision, the blogosphere was awash with people expressing outrage at the court—some making up in umbrage what it lacked in coherence. Echoing a multitude denouncing America’s move to national health care, one person on BuzzFeed wrote: “Screw this Commie country. I’m moving to Canada.” Yes, Canada, where national health care is nearly three decades old.   

Team Rombot already has proven more adroit at handling its reaction to the Obamacare decision than it was last week, when the Supreme Court upheld a key provision in Arizona’s anti-illegal immigration law. Romney’s response back then was so weak it would have had trouble besting Chris Matthews and Dana Perino on Jeopardy.

This time Romney’s response was far more forthright. “What the court did not do on its last day in session,” Romney said, “I'll do on my first day as president and act to repeal Obamacare.” As a rallying cry the governor could do worse, though of course it almost certainly will not be that simple if he is elected. It is, for example, highly unlikely that a President Romney would repeal some of the more popular provisions of the Obamacare law, such as preventing insurance companies from denying coverage for people with preexisting conditions and allowing children to stay longer on their parent’s health insurance. The former Massachusetts governor, always more centrist than his past two presidential campaigns, will undoubtedly be sensitive to the charge that his health-care policies would leave sick children languishing in America’s gutters. (See, for example, the headline in The Onion after today’s decision: “Republicans, leukemia team up to repeal health-care law.” Indeed, Romney has appointed as the head of his transition team a major defender of the law. Another Romney backer outright said Obamacare would never be repealed.

Home Run

The Ump Made the Right Call

After Bush v. Gore and Citizens United, many despaired that the Supreme Court would be able to salvage its reputation as a politically neutral arbiter.

As the Senate was considering his nomination to become this nation's 17th chief justice, John Roberts—once a star pupil in my constitutional law class—famously compared the role of a judge with that of an umpire, just calling the balls and strikes. In many respects, that analogy is a deeply flawed one. Constitutional rules are not black and white; there are many shades of grey in between, and it’s up to our highest court both to define the strike zone and to interpret the rules themselves. It is simply unrealistic to say that judges can decide every case by mechanically applying a rigid algorithm. If they could, we wouldn’t need nine justices on our highest court and could probably program computers to do their work.

In one respect, however, the analogy is a sound one. Umpires should not care who wins: the home team or the visitors. So, too, judges should not care who wins: Republicans or Democrats. 

John Roberts Court

After ‘Bush v. Gore’ and ‘Citizens United,’ many despaired that the Supreme Court would be able to salvage its reputation as a politically neutral arbiter. The health-care ruling is a big step in the right direction, writes Laurence Tribe. (Mark Wilson / AP Photo)

That ideal of neutrality, many Americans believed, was shattered in Bush v. Gore. Cynics suggested that the court's 5–4 decision to award the presidency to George W. Bush was more a matter of politics than law. Judges, a lot of people concluded, were rooting for one of the teams. Having argued and lost that case, I wasn’t personally convinced that things were quite that bad, but what counted more in the long run was that the public was. The court's 2010 decision in Citizens United v. Federal Election Commission, which unleashed a torrent of corporate and eccentric billionaire expenditures on politics, only worsened the problem, turning wealth and power into engines of self-replication through the machinery of political contributions: in the ruling’s wake, those with political power have taken on a lopsided indebtedness to those with financial influence.

'Newsbeast Live: Our expert panelists react to the Supreme Court ruling.'

But today, Chief Justice Roberts has done much to repair the enormous damage done to the Court’s reputation by Bush v. Gore and exacerbated by Citizens United. The Supreme Court's precedents clearly establish that the individual mandate, which doesn’t literally force anyone to purchase health insurance but simply adjusts the income-tax liability of those who don’t, can be sustained as an exercise of Congress's indisputably broad power to impose taxes. By faithfully applying those precedents—regardless of whatever personal distaste he may have had for the law he upheld—the chief justice helped restore Americans' confidence in the political neutrality of their highest court. 

That is no small achievement. It is in some ways comparable to what our greatest chief justice, John Marshall, achieved in his landmark 19th-century rulings in Marbury v. Madison and McCulloch v. Maryland. Marbury established the power of the Supreme Court to sit in judgment on the constitutionality of the actions of the other political branches, and McCulloch established the breadth of the political authority entrusted to those branches by the provisions of the Constitution.

As Alexander Hamilton famously said in Federalist No. 78, the Supreme Court has no control over "either the sword or the purse; no direction either of the strength or of the wealth of the society." Its only real power is the power of reason and persuasion, and it is the public that is the ultimate judge of what counts as persuasive. The court depends on its public legitimacy for the efficacy of its decisions. By upholding the mandate, the chief justice reinforced that legitimacy, for he vividly demonstrated that—not unlike a good umpire—he is committed to reaching the correct decision regardless of which side wins.

Cheat Sheet

Inside the Obamacare Ruling

An insider’s guide to the Supreme Court’s dramatic ruling upholding the Affordable Care Act. By Jesse Wegman.

What exactly did the Supreme Court rule?

By a 5–4 margin, in a decision (surprisingly) written by traditionally conservative Chief Justice John Roberts, the court ruled that the health-care law is constitutional.


Saul Loeb / AFP-Getty Images

The law’s most controversial component, known as the “individual mandate,” requires all Americans to purchase health insurance or pay a “shared responsibility payment” to the government.

On the day the law was enacted, 26 states, several individuals, and others sued to have the law struck down as a violation of the Constitution’s Commerce Clause, which gives the federal government the power to regulate commerce between the states.

In its ruling, the court held that the law could not be upheld under the Commerce Clause, which was the government’s primary argument in its support. “The Federal Government does not have the power to order people to buy health insurance,” Roberts wrote for the majority.

But wait—doesn’t that mean the law should’ve been struck down?

The Commerce Clause argument was only one of three the government made in support of the law. It also argued that the law could be considered a tax, and this is the argument the court bought.


A Supremely Mature Decision

The high court’s ruling on the ACA is not a political football. It’s a fundamental acknowledgment that people are mortal. By Dr. Kent Sepkowitz

The Supreme Court, with today's decision on the Affordable Care Act, has decided that we all are grown-ups and can hear the true facts of life and death. They realized that health care is not just another commodity, but is, like death and taxes, a requirement. Think of it: from the moment you are born—no from the moment you are conceived, you become a patient. It's logical enough: when you first exit the birth canal, whom do you see first? Mom? Dad? Please—no way. It's us, the purveyors of American health care, doctors and nurses and all the rest standing not in your kitchen but in a stainless-steel birthing suite.

Supreme Court Health Care

A doctor examines patient Fabian Vasquez at Camillus Health Concern in Miami, June 27, 2012. (Lynne Sladky / AP Photo)

So it begins; but the relationship doesn't stop at birth. Next come vaccines and well-baby exams; the appendix and the broken arm; the pregnancy and the knee scope; the injections for the sore back and the chest pain; the lump and the CT scan; the stents and the chemo; then more stents and more chemo and another biopsy; and of course medications—lots and lots of medications. And then you get really sick and you die. All told, we will spend about $316,000 in health care on you from cradle to grave (more for women, $361,000, than for men, $268,000). Health care: where death and taxes meet. 

The Supremes have realized that the issue was not a commodity called health care; it was the bedrock necessity called health. It was not legal precedent or broccoli; it was illness. At this odd moment, having just determined that corporations are people, they have seen that the opposite is not true: that people are not corporations. We don't file for Chapter 11 when we are ailing—we get sick and then sicker. And most importantly they accepted the cruel fact that the distribution of good health in the population is not even nor is it fair. The justice system at its most elemental exists to try to make fair those areas where for whatever reason, unjustified disparities exist. Confronted with the single largest moral issue of our time—whether some people deserve good health more than others—they have taken the high road. 

'Dr. Kent Seplowitz joins a live Newsbeast panel to talk about Obamacare.'

With their decision, the Supremes have admitted at last that people—even Supreme Court justices (perhaps especially Supreme Court justices)—are mortal. Perhaps this is a benefit of having old judges or younger ones, like Chief Justice Roberts, who have health issues. Illness happens not because you are a good person or a bad person or a liberal or a conservative, but because it happens. End of discussion. After months of hissy fits about death panels and rationing and intrusive big government, the court adopted an adult demeanor and soberly saw that health and health care were not the usual bill of fare: not cursing on television or even the funding of political campaigns.  

One of the sticking points for Obama and the Supremes has been an ongoing confusion between the health and health care. The distinction, though subtle, is substantial. The terms have come to be used interchangeably yet often point in completely opposing directions. Health is simple to conceptualize—it is what we all hope to have and maintain. Those who are sick strive and struggle every day to return to health while those whose health is good move with the confidence of one chosen, preening from here to there with a sense of deserved invincibility.

On the other hand, health care is a complex conglomerate of mostly financial interests that tries to align with health—but all too often does not. Indeed bad health is, in many ways, good for health care and conversely, good health can be bad for the health-care industry. Consider it just in terms of jobs: the health-care business employs about 9 million people, representing 7 percent of the U.S. workforce. Just about all of those 9 million rely not on the healthy but the sick. And the sicker, the better.

Watch This!

Fox News Mourns Obamacare Ruling

It’s overturned! Wait, no it’s not! Fox News’s reaction to the Supreme Court’s health-care ruling took a notably somber tone on Thursday. Watch video of its anchors’ fast descent into gloom.

It’s Overturned!

Here’s a lesson in performing a colossal on-air flip-flop. Fox News took a cue from CNN and erroneously reported that the court ruled the health-care individual mandate unconstitutional. Too bad they went forward without getting all the facts—like the fact that the court actually upheld it.

Wait, No It’s Not!

And then there’s the awkward moment when you have to reverse your headline. Megyn Kelly stepped in to correct her co-workers’ report by walking back with “conflicting information.” Watch as the anchors realize their mistake and plead with viewers to understand “this is complicated” and to “be cautious with us, we’re trying to do the best we can.”

Reality Sets In

Who better to reflect Fox’s temperament than conservative mastermind Karl Rove? Fox News cut to Rove after learning the court’s (actual) decision, and not shockingly, he wasn’t thrilled. Watch his somber take on the ruling as the network’s mood spirals into funeral mode.


Planned Parenthood: Ruling ‘Profound’

Planned Parenthood: Ruling ‘Profound’ Jewel Samad, AFP / Getty Images

Birth control without copays starts in August.

The Supreme Court’s decision to uphold the Affordable Care Act will have a “profound and concrete impact” on millions of people’s lives, Planned Parenthood president Cecile Richards said Thursday. She said the law will “provide access to birth control and cancer screenings without copays, guaranteed direct access to OB-GYN providers without referrals, and an end to discriminatory practices against women, such as charging women higher premiums and denying coverage for preexisting conditions.” Planned Parenthood said more than 45 million women have already received coverage for preventive health screenings—including mammograms and Pap tests—at no cost since August 2010 due to the Affordable Care Act. In addition, the group said, 3.1 million young adults have already been able to stay on their parents’ insurance. Furthermore, starting in August, birth control will be “treated like any other preventive prescription under the Affordable Care Act” and will be available without copays or deductibles, Richards said.

Read it at Planned Parenthood

Big Money

Conservatives’ Health-Care Victory

Conservatives may have lost the legal battle over Obamacare’s individual mandate, but they are winning the fundraising war over the issue. Daniel Stone reports.

Perhaps it was part of Mitt Romney’s coping strategy, or perhaps the beginning of his lengthy retort to an unfavorable decision. Within 30 minutes of the Supreme Court ruling to uphold much of President Obama’s health-care law, the Romney campaign announced it had raised more than $100,000. Some 45 minutes after that, the total had tripled. By early afternoon, it had surpassed $1 million.


Romney makes a statement in response to the Supreme Court ruling on the Affordable care Act. (Alex Wong / Getty Images)

Conventional wisdom leading up to the court’s decision had predicted the effects along partisan terms. A loss for Obama would energize Democrats. A loss for conservatives would drive Republicans to the polls in November. But with the ruling now released, the more accurate way to gauge its impact might be in dollars.

Fundraising has been a flashpoint throughout the 2012 campaign. Obama has been attacked for attending almost 150 fundraisers during the past year, many involving out-of-state travel and glitzy dinners. Then, earlier this month, Romney announced he had brought in $76.8 million in May, outraising the president and the Democratic National Committee by more than $15 million.

After the court’s ruling, Romney tried to ignite conservative anger. “This is a time of choice for the American people,” Romney said, speaking at Washington hotel just blocks from the Supreme Court. “Our issue is clear: if we want to get rid of Obamacare, we’re going to have to replace President Obama.” On his website, a somber photo of Romney appeared with a bold caption saying simply “Obamacare Upheld: Elections Have Consequences.”

The Obama campaign declined to release mid-morning fundraising totals. “We do not give out specifics on fundraising except at filing time,” Katie Hogan, a campaign spokesperson, told the Daily Beast.  But earlier in the morning, campaign manager Jim Messina tried to set the stage for more donations. “No matter what [the court decides], today is an important day to have Barack Obama's back,” he wrote to supporters. “If you’re with him, donate now.”

After the ruling was released, Obama himself admitted the legal victory could have unpredictable consequences in November. “I think it’s clear that I didn’t do this because it was good politics,” he said from the East Room of the White House.

The real financial impact of the health-care ruling isn’t likely to materialize instantly, says a conservative strategist. He predicts both liberals and conservatives will be goaded into giving as the details of the ruling percolate outside of the Beltway and into American households.

Word Cloud

What a Relief!

Minutes after the Supreme Court announced that Obamacare was upheld, we asked our Facebook readers to give their reactions in one word. Here are the results.

Despite what the pundits at CNN and Fox News initially reported, Obamacare has been upheld and our Facebook readers were eager to share their one word reactions when we asked. Within three hours we got almost 1,000 responses, which we’ve compiled into a word cloud below. Overall our Facebook audience seems to be greeting the news warmly.

Words used multiple times appear larger than words that were used less frequently. A few swear words were removed.



Repeal Is a Fantasy

Health Care Romney 2012

Republican presidential candidate Mitt Romney speaks about the Supreme Court ruling on health care in Washington, Thursday, June 28, 2012. (Charles Dharapak / AP Photo)

The Republican Plan B is to repeal Obamacare on Day 1 of a Romney presidency.

Good luck with that.

First, today's Supreme Court decision will make it a lot harder to elect Mitt Romney. President Obama has just been handed a fearsome election weapon. 2012 is no longer exclusively a referendum on the president's economic management. 2012 is now also a referendum on Mitt Romney's healthcare plans. The president can now plausibly say that a vote for the Republicans is a vote to raise prescription drug costs on senior citizens and to empower insurance companies to deny coverage to children for pre-existing conditions. Those charges will hurt—and maybe hurt enough to sway the election.

Second, even if Republicans do win the White House and Senate in 2012, how much appetite will they then have for that 1-page repeal bill? Suddenly it will be their town halls filled with outraged senior citizens whose benefits are threatened; their incumbencies that will be threatened. Already we are hearing that some Republicans wish to retain the more popular elements of the Affordable Care Act (ACA). Which means the proposed 1-page bill will begin to grow.

Romney promises to repeal Obamacare if he becomes President.

Third, Mitt Romney has promised to grant states waivers from the obligations of the ACA. Not all states will ask for such waivers. Many will eagerly institute the ACA, which (let us not forget) includes large immediate grants of federal aid.

Fourth, Republicans will find the task of writing their "replace" law even more agonizing than the Democrats found original passage. The party has no internal consensus on what a replacement would look like. Worse, any replacement of the law's popular elements will require financing. But where is that money to come from? New taxes are unacceptable. The proceeds of "closing loopholes" are already spoken for—that's how President Romney has promised to finance his promise to cut the top rate of tax 28%. And he's also promised to increase defense spending.

Fifth, the clock is ticking. President Obama passed the ACA in the second year of his administration. A President Romney will have to pass repeal in the first year of his, because the law goes into effect in 2014. By then, states will have to have their exchanges up and working. And states that have put themselves through that work will not be very eager to see Washington undo it. If replacement does not happen in the first 100 days, it won't happen at all—that is, it won't happen as a single measure, but rather will take the form of dozens of small incremental changes adopted episodically over the next 20 years.

Reversal of Fortune

Roberts's Stunning Ruling

After weeks of anticipatory gloom, liberals can exhale and smile. Obama dodged a bullet—and the right will be left to stamp its feet. Prepare for the temper tantrums. 

Stunning. There’s just no other way to say it. John Roberts, the fifth liberal? Actually, the decision gets a little more complicated than that in its details, but the bottom line is the bottom line: the Supreme Court upheld the individual mandate—upheld the law pretty much in full. Several legal experts predicted this, but virtually no one in the political world thought it—everyone was braced for the opposite. Thousands of people in politics spent weeks readying themselves for a strike-down, and now suddenly, all the people have to turn on a dime and say, “Now what?”

Supreme Court Health Care

Senior citizens in Chicago watch President Obama's reaction to the Supreme Court's decision to uphold his health care law. (Charles Rex Arbogast / AP)

President Obama gets a major vindication. I didn’t agree with liberals who’ve been writing for the past couple of weeks that an overturning of the mandate would constitute a tolerable split decision. On the substance, sure: the mandate is merely a means to an end, and there are other means that could be substituted for it. But on the politics? No. A mandate strike-down would’ve been horrible for Obama.

Part of readying myself for the opposite result included wondering how many times I could go without shooting the television as I watched Mitt Romney say words to this effect: “So now we know. The president, at a time when the economy was in the toilet, when unemployment was rising over 10 percent, devoted all his energy and all his political capital to a cause that we now know was a complete and total waste of the American people’s time.” Never mind the hypocrisy involved in the man who is the original political father of the mandate saying those words. It would have been a powerful argument to swing voters, and it would have hit Obama hard.

Now, he floats above it. There’ll be new polling soon, and it’s not as if the mandate is suddenly going to be popular because of the decision. Indeed, now that it’s a tax, it might be less popular! But on the simplest level this is a massive win for Obama, and no spin can undo that.

What does Romney do? In his statement shortly before noon, he announced that he was going to continue to fight to repeal the law. But there’s no getting around this: a huge hammer has just been swiped from his, as it were, mitts. “Repeal Obamacare” is still going to play well with the right-wing base, but to centrist voters, it’s going to sound increasingly churlish and loony. “C’mon,” they’ll think, “the Supreme Court settled this. John Roberts voted with Obama, for goodness’ sake.”

In other words, Romney’s own hypothetical argument, the one I mentioned above, can in essence be turned against him, and against all Republicans. “Repeal Obamacare!” Oh yeah? Who’s wasting the people’s time now, Republicans? You! This is settled law. There ain’t no place to go after the Supreme Court. It’s done. Until the Republicans have either (a) a House majority, 60 senators, and a president, or (b) 290 House members (that is to say, two thirds, or a large enough majority to override a veto) and 67 senators, then they’re in dreamland. Repeal of any aspect of it isn’t going to happen.

But what stops a bull in a china shop? Eric Cantor already said the House is going to vote on full repeal in July. You go, Republicans. I pray they spend their convention and every day of the fall campaign fulminating against health care. Without question, it’ll rally their base and might make some arch conservatives and libertarians back Romney who wouldn’t have. But they’re going to lose independents because they’re going to look like obsessed fools. Which, uh, come to think of it…


The Media’s Obamacare Train Wreck

Journalists predicted the law would be upheld, then that it was toast--and then botched the big moment. Howard Kurtz examines the debacle.

The Obama administration has survived a train wreck.

We’re not so sure about the media.

Supreme Court Health Care

Journalists wait outside the Supreme Court on June 28, in Washington D.C. (Evan Vucci / AP Photo)

During the Supreme Court’s oral arguments over Obamacare in March, CNN’s legal analyst Jeffrey Toobin famously said this: “This was a train wreck for the Obama administration. This law looks like it’s going to be struck down. All of the predictions, including mine, that the justices would not have a problem with this law were wrong.”

Um, make that wrong twice.

And to make matters worse, CNN and Fox News blew the initial reporting of the ruling Thursday morning. Among those who were misled: Barack Obama himself.

The leader of the free world, reduced to getting the news from television like everyone else, briefly thought he had lost the landmark case. White House aides say he watched on a set with four split screens—and watched in dismay as two of them said the high court had struck down the health care mandate. The disappointment lasted less than a minute, until White House counsel Kathrym Ruemmler burst in with the news, but it must have been a long few moments for Obama.

In upholding the president’s health-care law, the John Roberts court shocked the capital precisely because the media mavens had concluded that the law’s individual mandate was about to be consigned to the dustbin of history. Toobin may have been the most visible commentator venturing a bold prediction, but he had plenty of company.

The Decision

After months of waiting, Obamacare has been upheld by the Supreme Court. The Daily Beast reviews the legal circus.

Cheat Sheet

Health Care 101

Inside the Obamacare Ruling

Inside the Obamacare Ruling

An insider’s guide to the Supreme Court’s dramatic ruling upholding the Affordable Care Act. By Jesse Wegman.

Who Was Ready for the SCOTUS Decision? The Fox News Crew

Cable TV anchors might have made serious gaffes reporting the wrong healthcare decision, but not everyone was scratching their heads. Newsweek & The Daily Beast's Lloyd Grove reports from the Supreme Court that the Fox technical crew were ready—after setting up their equipment in the middle of lawn sprinklers.


Experts Sound Off

The Supreme Court Ruling on Obamacare: 16 Experts Weigh in

The Supreme Court Ruling on Obamacare: 16 Experts Weigh in

It’s the end of liberty! It’s the beginning of freedom! Either way you slice it, the court’s ruling on Thursday was momentous.

Hidden Benefits

Good News for Women?

Planned Parenthood: Ruling ‘Profound’

Planned Parenthood: Ruling ‘Profound’

Birth control without copays starts in August.

Word Cloud

Readers React

What a Relief!

What a Relief!

Minutes after the Supreme Court announced that Obamacare was upheld, we asked our Facebook readers to give their reactions in one word. Here are the results.


Watch This!

Fox News Mourns Obamacare Ruling

Fox News Mourns Obamacare Ruling

Fox News’s reaction to SCOTUS’s ruling took a notably somber tone. Watch its anchors’ descent into gloom.

Cable's Crappy Health Care Coverage

You know that kid in your class who always talks but never actually does the reading? Well, today, that was CNN and Fox News. In a rush to beat their opponents to report the Supreme Court’s health care decision, both cable networks broadcast the wrong information—and then had to awkwardly retract their statements.

  1. NewsBeast Goes Live: Highlights from the Obamacare Webcast Play

    NewsBeast Goes Live: Highlights from the Obamacare Webcast

  2. Obama: 'Decision Was A Victory' Play

    Obama: 'Decision Was A Victory'

  3. Romney Praises His Own Individual Mandate Play

    Romney Praises His Own Individual Mandate


Who Knew?

11 Wacky Supreme Court Facts

11 Wacky Supreme Court Facts

Scalia and Ginsburg go to the opera together and more Supreme Court trivia.