Web Video: Supreme Court Upholds Obamacare in 2012

MS. IFILL: Good evening. A remarkable week in Washington, and we'll get right to it. There is almost no underselling the scope of the victory the Obama administration scored at the Supreme Court this week. The man they have to thank, not perennial swing voter Anthony Kennedy, but Chief Justice John Roberts.

Consider the contours of the court's two five-to-four votes to uphold the Affordable Care Act. A majority actually rejected the administration's central argument that the mandate to purchase health insurance is permitted under the Constitution's Commerce Clause. On that point, Roberts sided with the conservative majority. But the chief justice swung the other way on a narrower matter: voting to redefine the mandate as a tax, which he and the court's four liberals said is constitutional.

Right off the bat, the first question, Joan, is: what's the difference?

JOAN BISKUPIC: Well, you have to look at this through two lenses. First, for the law itself, it's upheld. Who care how it's upheld? It's upheld. It stands. It's the centerpiece of Barack Obama's domestic agenda. He goes forward with it. It's a very big deal that way.

In terms of a little rationale, I think the most important thing you can say is what does this say about John Roberts? Here's the chief justice who had never been the key fifth vote with the liberals on a major case and where does it come in this big matter. And it shows him trying to bridge ideological differences there and that's what he did. He just decided he'd go with the liberals on the Obama administration's secondary argument, on the taxing power.

Now, it didn't get a lot of play when we were presenting this back in March, but it was always in the case so it was always there for him to pluck if he wanted to pluck it. And he did.

MS. IFILL: In the end, Pete, though, how surprised were you about John Roberts being the key linchpin here?

PETE WILLIAMS: Well, I think I was more surprised that it was upheld on the basis of the taxing power than I was that it was John Roberts. And I have to say before we go any further that the last time Joan and I were on here, she predicted that the Supreme Court would uphold it. I predicted that it wouldn't. Clearly, someone changed their vote. (Laughter.)

MS. BISKUPIC: (Inaudible.)

MR. WILLIAMS: But I don't think anyone came out of the arguments thinking, man, they're going to uphold this on the taxing authority. And this is why the Roberts opinion is so interesting because he both gives the liberals this victory on the law, but gives the conservatives this huge vote of support for what had been the central argument all along that the Congress' commerce power does not extend to somebody who isn't doing anything. If you don't have insurance, you're not in commerce, you can't be regulated. And Roberts has a very forceful opinion agreeing with that.

So he falls back to the government's fallback and he says, but Congress can tax almost anything. He says, you know, at the founding of the republic, there was a head tax. You could just be taxed for standing there. So he basically says, Congress can't reach you for doing nothing, but you can be taxed for not buying insurance.

MS. IFILL: Go ahead.

NAFTALI BENDAVID: I mean, reading the opinion of John Roberts, you get the sense that he knew what he wanted to decide and then figured out how to get there. I wonder what you guys think about that because that's how it reads, like he knew the result, then the reasoning came second.

MS. BISKUPIC: But we see this all the time, to tell you the truth -- not so much that, but the reality that if they can decide something narrowly, and if they can find an act of Congress constitutional, they need to do that. And this was no mere --

MS. IFILL: He has said as much, has he?

MR. WILLIAMS: That's an old tradition.

MS. BISKUPIC: Yes, and they've always said that. It's an old tradition, yes, because theoretically all conservatives across the spectrum have said, you defer to the legislative branches. So here you have Congress having passed this thing so you're all going to have this natural deferring. And then also the idea, if it can be upheld on any constitutional grounds, go for it. So I actually didn't think it was so stunning. It's just that when you think of the politics that surrounded this thing, I think it's easy for people to see it that way.

MR. WILLIAMS: I will say, though, I think the decision is a little hard to understand because he says at one point -- and this is a quoting from his opinion -- "the law makes going without insurance just another thing the government taxes, like buying gasoline or earning income." And I think it's hard for people to think that not doing something is something that can be taxed. And especially when you consider that in part of the opinion, it says, you know, for purposes of another law, which says you can't sue about a tax until it goes into effect, it's not a tax, but it's OK under the taxing authority. That's awfully -- slicing it awfully thin.

MS. IFILL: You mentioned this debate about the taxing authority. And President Obama in 2009 gave an interview in which he said adamantly that was not the case; in fact, he bristled when ABC's George Stephanopoulos said the mandate was basically a tax.

PRESIDENT OBAMA: (From videotape.) That's not true, George. For us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is, is that we're not going to have other people carrying your burdens for you any more than the fact that right now everybody in America just about has to get auto insurance. Nobody considers that a tax increase.

JOHN DICKERSON: Pete, what did the other justices, particularly John Roberts' conservative allies think about his tax argument?

MR. WILLIAMS: Well, I will just say this about what the president said. What the Supreme Court basically says, it doesn't matter what Congress called it. You look at how it functionally acts, and it's a tax. The IRS collects it. You report it on your tax form. It's stuck in the part of a federal law that's got the tax laws in it.

What the conservatives say is that basically -- that Congress deliberately rejected it as a tax. That's their claim. Now, you know, there's a contrary argument here that actually Congress debated whether it was a tax and said it was, but the conservatives say it's a penalty. It's clearly a penalty and that this is the court becoming a tax writer. And only taxes can arise in the House. They were just appalled by the majority decision.

MS. BISKUPIC: Right. And the dissenter said, you adopted this fly-by-night argument, kind of criticizing the fact that the administration hadn't highlighted.

But, Gwen, to your other question about does it become a tax because Chief Justice John Roberts has declared it one? He actually didn't declare it a tax for outside the marble building. He declared it a tax for just their purposes of the law saying, you know, it doesn't matter where it's labeled the way we're going to construe it.

MR. BENDAVID: But Republicans are jumping all over that.

MS. BISKUPIC: Yes. Saying it's not a tax.

MR. BENDAVID: Yes. They say, see, you were misled by the Obama administration. They said it wasn't a tax, but John Roberts himself is upholding it solely because it is a tax so he may not have intended it to go outside the marble building, but it's certainly being used.

MR. WILLIAMS: Well, let me just say one other thing about how the law works and has always worked this way, even before the Supreme Court rule. If you don't buy insurance, the law says you have to pay this penalty. But, guess what? If you don't pay the penalty, zip. There's no punishment in the law. Now, the IRS can try to get your money. They can withhold it from your paycheck. They can take it out of your refund, but they can't prosecute you. And there's even this amusing thing in the government's brief that says, you know, if you don't pay this penalty, the IRS can call you or come to your house.

MS. IFILL: Let me ask you a little bit about the internal workings of the court, because Justice Kennedy in his dissent wrote in part that he thought -- I don't know if he was criticizing Justice Roberts directly, but he said this was a vast overreaching of government.

MS. BISKUPIC: Well, and he actually invoked a phrase that means something to us over there, the idea of judicial modesty.

MS. IFILL: Right.

MS. BISKUPIC: You're modest. No, you're modest. Or you're immodest. And he said, you're casting this as judicial modesty, but it's really immodesty and you're saying it's restraint, but it's really overreach.

MS. IFILL: That's almost like a smack down from where I stand.

MS. BISKUPIC: Yes. In our world it's a real fighting-words kind of thing. But, the truth is that what Anthony Kennedy, who we see as this centrist conservative, what he would have done is thrown out this entire law. So if he had prevailed as the usual man in the middle, we would have had a much different nation right now. But what he said was that -- he said it in this kind of muted tone in the courtroom. But the chief had prevailed, what are you going to do?