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What The Supreme Court Decision Upholding Healthcare Reform Means For Climate Policy

In a very surprising outcome, Chief Justice John Roberts cast the fifth vote to save Obama’s Affordable Care Act.

The key aspect of the decision that I think is relevant to climate policy is how the 5 justices decided to uphold the centerpiece of the ACA, the individual mandate requiring people to buy health insurance:

The court rejected Obama administration’s commerce-clause argument, but ruled 5–4 that Congress nevertheless “has the power to impose” the individual mandate under its taxing authority. The provision “need not be read to do more than impose a tax,” the opinion said. “This is sufficient to sustain it.”

In short, complicated justification for mandate fails, but tax wins. Note that this is in spite of the fact that most constitutional scholars always considered the mandate itself constitutional. Justice Kennedy (!) wrote in the dissent: “In our view, the entire Act before us is invalid in its entirety.”

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My guess is that people who write climate legislation will take away from this that a lengthy bill designing a complex system to control CO2 and other greenhouse gases will be challenged in the court by conservatives and might conceivably lose. But Congress has taxing authority and that isn’t going anywhere. Yes, I’m aware that the U.S. Appeals Court upheld EPA’s greenhouse gas emission rules. But the climate bill that was considered by Congress to controls GHGs was considerably different and more complicated than those rules. Again, I don’t think the bill actually was unconstitutional, only that you never know what the Roberts Supreme Court (or a future one) might decide.

Back in February, Climate Progress reported that “Bipartisan Support Grows for Carbon Price as Part of Debt Deal.” As I write a year ago, the only plausible scenario now for seriously addressing US greenhouse gas emissions in a way that would enable a global deal and give us some chance of averting catastrophic multiple, simultaneous climate impacts is for a serious carbon price to be part of the post-2012-election budget deal.

It is still safe to say that this is not a high-probability outcome, but it is non-zero.