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Did California Save Obamacare?

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Opinion: Saving Obamacare?

AP

In this Oct. 8, 2010, file photo, Chief Justice John G. Roberts is seen during the group portrait at the Supreme Court Building in Washington.

Did California save Obamacare?

Not exactly. But an important court decision in a California case may well have.

That decision, Hooper v. California -- is more than a century old. But it was cited by Chief Justice John Roberts in his decision upholding the federal health legislation as constitutional because it's a tax.

Roberts had previously ruled that law couldn't be upheld as a regulation of commerce. That might have been the end of it, except for Hooper v. California. In that 1895 case, the court had found that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Roberts wrote that this precedent forced him to consider other justifications for upholding the act, and that's what he did with his finding that the health law was a tax.

So what, you ask, was Hooper v. California all about?

The short version, shipping and insurance. California had laws that required Californians to buy their insurance from in-state companies. But one Mr. Hooper, an employee of an insurance brokerage firm based in New York but with a San Francisco office, bought maritime insurance for a steamer called Alliance from a company in Boston. He was charged in 1888 with violating this law, a misdemeanor, and convicted and fined $5.

He appealed his conviction on the grounds that his constitutional rights had been violated because it was up to the federal government to regulate interstate commerce -- not California.

But the court decision went against the insurance agent-- and for California. The court found that insurance regulation is up to states: "The State of California has the power to exclude foreign insurance companies altogether from her territory, whether they were formed for the purpose of doing a fire or a marine business. She has the power, if she allows any such companies to enter her confines, to determine the conditions on which the entry shall be made."

The quote Roberts used came from a place late in the decision, when the court was explaining why it was dismissing one of Hooper's arguments about problematic language in the state law. Thus, "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." In essence, the court was saying: we're not going to overturn a law, in this case a California law, just because it could be read in one way.

There's an irony in this. A quote that justified a decision in 1895 to defend California's right to make its own insurance laws would be employed to defend a federal law that would impose new requirements on citizens and states, including California.

Lead Prop Zero blogger Joe Mathews is California editor at Zocalo Public Square, a fellow at Arizona State University’s Center for Social Cohesion, and co-author of California Crackup: How Reform Broke the Golden State and How We Can Fix It (University of California, 2010).

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