Althouse: "[F]or ordinary conservatives, as opposed to long-beleaguered conservative law professors, this case wasn’t about proving law professors wrong..."

June 29, 2012

"[F]or ordinary conservatives, as opposed to long-beleaguered conservative law professors, this case wasn’t about proving law professors wrong..."

"... it was about limiting the power of the government by overturning the coercive mandate. That objective was not achieved."

I'm just another lawprof, but I think the Commerce Clause decision matters a lot. Yes, Congress can work around its limit by tapping the taxing power, but it's not politically easy to tax.

65 comments:

Bender said...: I think the Commerce Clause decision matters a lot

Which Commerce Clause decision?

The one-justice opinion of Roberts or the four-justice opinion led by Scalia, neither of which affects one tiny bit the actual judgment of the Court to uphold the mandate, and since neither is an "opinion of the Court," each carries no precedential weight.; 6/29/12, 6:19 PM
Rob said...: Maybe, Ann, but on sober reflection it seems to me that the Roberts Doctrine will apply in only those extraordinarily rare situations when the Federal Government mandates a purchase of goods or services. And even then, there's now a roadmap on how to accomplish that through the taxing power. Hope you like broccoli.

The federalism issue raised by the Medicaid expansion may have a more significant effect on future actions, though even there I'm skeptical it'll circumscribe Congress very much.; 6/29/12, 6:32 PM
dreams said...: "Why do you keep calling it a tax?" "Justice Breyer asked the solicitor general during the oral arguments for Obamacare last March.

The whole room burst into laughter.

But apparently not Chief Justice Roberts."

"Look, I'll be delighted if all these things turn out to be true. But as a conservative, I'm skeptical of these three-carom-shot approaches to politics. I remember all of the people who wondered whether it would be better if McCain lost in 2008 (including me!). It turns out Ed Koch's mother was right when she told him, "It's always better to win than to lose." Everyone hailing Roberts's brilliance is in effect congratulating Jack for bringing home the magic beans -- before they grow into a giant stalk. He traded the cow of overturning Obamacare now for some "long game" beans that might one day grow into something cool. It is an un-conservative tendency to credit one man with being able to plan that far out into the future."

Jonah Goldberg of the Goldberg file.

I don't really have an opinion on the Commerce Clause except that I'm starting to agree with those conservative pundits that think Roberts cave to liberal pressure and by caving he showed he doesn't understand the tactics of liberals. All anyone has to do is just listen to them "it ain't over till we've won" Roberts has ruined his reputation.; 6/29/12, 6:42 PM
Orion said...: Great.

So our freedoms now rely on how difficult Congresscritters may find it to enslave us, as that is apparently the ONLY restraint upon our Government now.

Yeah, I've got a LOT of faith in that. The Bill of Rights has been superseded by the IRS Tax Code.

Orion.; 6/29/12, 6:43 PM
wef said...: I'm sorry, but to the common rube on the street, this whole thing smells of too-clever-by-half weaselling in order to get to an outcome.

The obvious searching for the silver lining by various clever Red Team cheer leaders (trying to cover for what looks like another weasel appointment of a Republican president) is merely rubbing salt into the wounds.; 6/29/12, 6:49 PM
wyo sis said...: For the sake of my sanity, I've decided to look on it as a loss for the idea of pushing the liberal agenda in through the commerce clause. In my heart I think it's better to win and the commerce clause loophole could have been closed that way just as well or better. For now, I'm going to push for "getting the bums out" as my dad used to say.
In a way it's probably best for me not to try to look at as a law professor would, since I don't have that training. I'm going to have to rely on Ann and other law bloggers as this goes forward. At least I trust them to tell me the truth more than I trust politicians. Or used car salesmen, or journalists.
Gahhhh! This is frustrating.; 6/29/12, 6:57 PM
wildswan said...: I agree that this Commerce clause interpretation is more important than people realize. The whole Supreme Court has agreed that the Commerce clause cannot be used to justify an "individual mandate" for behavior change. This result is getting lost in the fact that the Court left the ACA in place. But limiting the Commerce clause might be quite important. The individual mandate was something new but there were more "individual mandates" proposed in Obamacare. Obamacare intended to save money by mandating that individuals to change their behavior into what was deemed healthy behavior. These parts are scheduled to come into force after the 2012 election. That is now all ruled out. The government can tax individuals to raise revenue; it cannot force behavior or behavior change. It's wrong to think that the individual mandate was a one-time event; it was the first in what was to be a long line of such mandates - and now it is the last. Maybe Justice Roberts and the Court have prevented a sneak attack on the Constitution and left it up to us to rein in spending.

And this spending is quite an issue. According to the Milwaukee papers there will 340,000 people covered by insurance by 2014 who are not now covered. Either they will be paying for themselves or the taxpayers will be picking up the tab for them. Shouldn't we be trying to find out which it is?; 6/29/12, 7:04 PM
Chip Ahoy said...: Followed the link. Read 3/4 then something started blinking at the top of the page insistently blinking. Disappearing appearing disappearing appearing covering their content disappearing appearing and that uncomfortable feeling of an eminent seizure started happening so I quickly left before zzzzt somezzzzzt thingzzzzt bad hapzzzztpenzzzzted. Now I forgot what that was about. Too bad.; 6/29/12, 7:05 PM
Bill said...: "but it's not politically easy to tax"

It seems pretty darn easy to me. And even if it is harder, the rationalization that you use to do so just got a whole lot easier.

It used to be that using the Commerce clause to justify something crazy sounded, well, crazy. Now you just cite this decision, call it a tax, and you're done. You want to outlaw trans fat nationwide? Just penalize, er, tax the heck out of it, and say that only healthcare-cost-raising fatties could possibly object.; 6/29/12, 7:07 PM
cubanbob said...: Ann since now the court has ruled that the mandate is a tax, can you explain to a simpleton like me what type of tax am I paying and to whom am I paying to? I know that I have to pay the penalty for the non payment to the US Treasury but to whom do I pay the tax to? And on my tax return when I have to compute the type of taxes I owe what type of tax do I list?

Justice Roberts hasn't told me, President Obama hasn't told me and the members of congress who passed this haven't told me. Can you answer this for me?; 6/29/12, 7:11 PM
KCFleming said...: It was a massive loss, nothing less. Not a secret victory or a partial victory or a moral victory. A crushing defeat.

Yesterday one of our doctors decided to go part time. Today one quit. Probably unrelated, right?

I expect a lot of 'unrelated' career changes will come in the next few months. Coincidence.

For me, it's 2008 all over again. Drastic spending reductions at home. Buy nothing but essentials. Save and save. Bad weather coming. Time to hunker down.; 6/29/12, 7:11 PM
Paddy O said...: "You want to outlaw trans fat nationwide? Just penalize, er, tax the heck out of it, and say that only healthcare-cost-raising fatties could possibly object."

How about cigarettes?; 6/29/12, 7:16 PM
wyo sis said...: Pogo
I also trust you particularly to know how this will affect the simple act of going to the doctor. I'm terrified and people threatening to crash the system aren't helping. If I have an elective surgery decision to make is now the time to get it done?; 6/29/12, 7:18 PM
Michael K said...: "For me, it's 2008 all over again. Drastic spending reductions at home. Buy nothing but essentials. Save and save. Bad weather coming. Time to hunker down."

I gave up for a moment reading the medical blog that explains what happened to the profession. That is even more depressing. For example:

"Despite the morass of confusion caused by the E&M guidelines, any failure to follow them to the complete satisfaction of the Central Authority is a priori evidence of Medicare fraud or abuse. And therefore, the E&M guidelines assure that with each and every patient encounter, the thing that will be foremost in the physician’s mind is not the needs of the patient, but how to fill out the complex documentation in such a way as to avoid the appearance of committing a crime.

In practical terms, this means filling out the documentation so as to blend in with the masses, so that one’s records will be passed over by the sharp eyes of the greedy forensic accountants (who are paid by commission for detecting instances of substandard documentation, now construed as “fraud or abuse”), or even worse, by the sophisticated software now being deployed to detect ever-more nuanced gradations of “outliers.”

The bottom line is that virtually any doctor who uses the E&M guidelines, and virtually all doctors do, are always guilty of healthcare fraud. It’s just a matter of who gets investigated."

Pogo probably has current examples. The medical profession has been cowed and Obamacare is the latest in a series of castrations.

I was at the Geriatrics Society meeting a couple of years ago and met a woman physician who is the only private geriatrics specialist in central Iowa. There are almost no geriatrics private practices since Medicare won't pay for adequate care. They are all subsidized by universities. She was being harassed by Medicare for seeing her patients too often and threatened with criminal prosecution. She quit Medicare and is now in a cash practice. Visa and Mastercard. She is making a living but not getting rich.

Obamacare outlaws cash practice. Oh well. I'm retired but might need care.; 6/29/12, 7:20 PM
Carnifex said...: Look Proffessor, it's nice to be all hopey, changey, but the fact is Roberts blew it, and served up the nation a big shit sandwich.

My wife's grandfather lost an election through Democrat "electioneering", and they had to hold him down to keep him from going into town to kill every Democrat he saw.

Sometimes, the old eways are the best ways.

We're supposed to be all civil and cordial, while the other side lies, cheats steals and even kills. That ain't gonna hold much longer. People are getting tired of the bullshit that comes out of DC and I can't blame them. Fact is, when the shit hits the fan I'll prolly be in the front.; 6/29/12, 7:27 PM
Writ Small said...: Yes, Congress can work around its limit by tapping the taxing power, but it's not politically easy to tax.

That's not nothing and the point is taken. However, politicians only ever need refer to their judicially-sanctioned expansion of coercive power as a "tax" when it hits the high courts. There's no law preventing them from calling their next power grab a "fairness fee" or something less Orwellian when selling it to the public. It's not as if NBC is going to hold them to account.; 6/29/12, 7:35 PM
KCFleming said...: @wyo
Put it this way: things will not be more abundant or cheaper in a year; 6/29/12, 7:36 PM
edutcher said...: I'm one of those people who agrees with The Anchoress and sees this as a chance to fight another day - and an admonition of a lot of crybabies to put on their big girl panties and deal with it.

Whether it was Revenant or Seven Machos who said anybody who thought SCOTUS' job was to defend the little guy was out of their minds was right.

Very often SCOTUS sides with somebody other than the little guy because that's the way the Constitution reads. Granted, a lot of decisions from Dred Scott to Lawrence are about somebody's agenda and twisting the words to fit it (consider the Stolen Valor decision).

What Roberts did, in defining the mandate as a tax is to give repeal a chance where the goofy rules about filibuster can't be used.

The Demos now have to run on death panels and the biggest tax in history. The trolls, once their master got over their, "Eat it, bitches", fit have been told to resell this mess, even if it takes using Moochelle's nonsense about how it's Christ's will.

As I said yesterday, we're finding out who the Sunshine Patriots are and who are the people who pack the gear.

Giving up now proves nothing. Winning the election means a real chance to repeal it.

Unless, of course, you haven't got the stomach for it.; 6/29/12, 7:39 PM
wyo sis said...: Pogo
I thought so. Yeah, it's all theory until you try to go to the doctor.; 6/29/12, 7:40 PM
Sydney said...: Michael K said:

"Obamacare outlaws cash practice. Oh well. I'm retired but might need care."

How/where does it do that?; 6/29/12, 7:41 PM
Hagar said...: The Commerce Clause has been tightened up some, and there is probably more to come, and Congress can now repeal the ACA with 51 votes in the Senate.
And CJ Roberts may have seen some other IED along that tax path for this particular problem anyway.
Time will tell. In any case, I do not think he suddenly was overcome by enthusiasm for the ACA.; 6/29/12, 7:44 PM
ricpic said...: The highest priority is that "congress work around its limit." All the beautiful people share that assumption. Why, to do otherwise is heresy!; 6/29/12, 8:04 PM
JonRobert said...: Trust you are not under-valuing “ordinary conservatives.”

People are approximating engines, solving the “iterated prisoners’ dilemma” in ways that maximize the survival of their progeny, not necessarily their own personal happiness.

Thus social conventions and cultural norms are geared towards the limited number of stable solutions which are thus found.

And the law is the codification of those cultural norms, for the convenience of lawyers, the consistency of results, the perception of fairness, and the re-usability of standard documents.

******

Those stable solutions involve feedback mechanisms that reward cooperation and punish defection; chief among these, but not the unique, are democratic elections.

The role of the courts is to see to the universal acceptance of those feedback mechanisms.

Now we are faced with a distortion of the feedback mechanisms. Bluntly put, the Democrats have stuck a toothpick in the thermostat.

The proper role of the umpires is to call foul. Playing fast and loose with the rules means the violators get called on it.

Otherwise, there is no reason for the aggrieved NOT to violate the rules themselves. Otherwise, if the umpires refuse to do their jobm then when they bring a knife, we bring a gun — http://www.youtube.com/watch?v=v53mGjWu0F4; 6/29/12, 8:07 PM
dreams said...: "As I said yesterday, we're finding out who the Sunshine Patriots are and who are the people who pack the gear.

Giving up now proves nothing. Winning the election means a real chance to repeal it.

Unless, of course, you haven't got the stomach for it."

I don't think disagreeing with the decision is giving up and I don't think those disagreeing are "Sunshine Patriots", we could have been rid of Obamacare so why shouldn't people who don't like Obamacare be disappointed with the decision. What evidence do you have that those who oppose Obamacare are giving up?; 6/29/12, 8:08 PM
jvermeer51 said...: Ezra Klein wrote something close to, "if Roberts rule on the commerce clause restricts government action in the future...."
My response, with credit to some Green Bay Packer in the 60's,
"If frogs had wings, they wouldn't whamp their ass when they jump"; 6/29/12, 8:26 PM
Dante said...: Sorry for continuing to ask this constitutional question, but I still am intent on seeking an answer. I'm unaware of any taxation that is not based on having an asset, either income, or property, that could be used to back it up.

In this case, is there any such backup, or could this new tax simply apply because you are alive?

I suppose the law, as opposed to what was just constitutionally allowed, is that you have to pay the penalty only if you have a certain income. But that's the law. I would imagine it could as also say "You have to pay this tax regardless of whether you have income or property", within the confines of the taxing authority now vested in the constitution.

Every other tax I can think of is a tax based on income, transfer of dollars, or backed by property. Not this one, though.; 6/29/12, 8:32 PM
Methadras said...: Ann, at this point I don't think it matter whether the law was passed on this weird ruling under the commerce clause or any other clause. Congress now has been given a mandate to basically tax us for inactivity if they deem that we must be active. Roberts had his chance to kill this thing for what it is and he chose not to and no one is saying why and instead the convolutions to get to based on your analysis can simply be swept away because now any clause can be used to tax our inactivity. What if congress decides not to use the commerce clause anymore and instead used the general welfare clause or the uniformity clause. Seeing the picture?; 6/29/12, 8:46 PM
Methadras said...: dreams said...

"As I said yesterday, we're finding out who the Sunshine Patriots are and who are the people who pack the gear.

Giving up now proves nothing. Winning the election means a real chance to repeal it.

Unless, of course, you haven't got the stomach for it."

I don't think disagreeing with the decision is giving up and I don't think those disagreeing are "Sunshine Patriots", we could have been rid of Obamacare so why shouldn't people who don't like Obamacare be disappointed with the decision. What evidence do you have that those who oppose Obamacare are giving up?

If anything this ruling has energized conservatives into a zerg to kick out Urkel and his cadre and probably for the sole purpose of having Romney waive the law completely.; 6/29/12, 8:48 PM
Anonymous said...: I heard a lawyer today say that the opinion on the commerce clause was just dicta b/c it had nothing to do with the question that was decided. True? So then what's the point, except to say, hey, let's consider this some day, or don't cross me, fellas?

Doctors, as Pogo has said, will start quitting now. Why wait until quitting is illegal. Their bond with patients has already been broken by their groups' insistence on hospitalists and the like who follow their patients in hospital. Now they need "rapid response teams" for the complaints about shoddy care that results. Govt care will make it unbearably worse.

I am still angry with Roberts today. When 100% of pundits, lawyers and the public are shocked, it means the decision was wrong.; 6/29/12, 9:16 PM
The Godfather said...: 1. Anyone who thinks Roberts is going Souter hasn't been paying attention to his record over the past 7 years.

2. A lot of people seem to forget that the conservative dissenters on the Court acknowledged that if the mandate had been written as a tax it would have been constitutional. Where Roberts differed from them was his willingness to bend over backwards to interpret the statute as a tax and hence constitutional. That's judicial restraint, which is often regarded as a virtue by conservatives.

3. The horribles that many of us fear are not caused by the Supreme Court or John Roberts, they are caused by B. Obama and his Democrat allies in the Congress. There's an election coming up in a few months. How about thinking about THAT rather than lynching the CJ?; 6/29/12, 9:16 PM
West Town said...: "This holding is very narrow, limited to the perhaps unique case where Congress wants to regulate inaction because it affects interstate commerce. In over 200 years, there has never before been an instance where such an argument has been made on behalf of the constitutionality of a federal statute, and it may never need to be made again. "

With the direction that our country is going in- with these new "liberals"-that a case like this hasn't occured is a poor predictor of whether an argument like this will need to be made in the future.

Point is taken on some of it depending on the composition of the court. All that I can hope for is that the noble action of Roberts will set the tone of the court and good governance in the future. By "noble action", I mean staying within his role and pointing out the role of the people in their relationship with their elected representatives.; 6/29/12, 9:26 PM
Revenant said...: dreams,

Thanks for the Goldberg quote. He hit the nail on the head, in my opinion.; 6/29/12, 9:33 PM
West Town said...: "I heard a lawyer today say that the opinion on the commerce clause was just dicta b/c it had nothing to do with the question that was decided. True? So then what's the point, except to say, hey, let's consider this some day, or don't cross me, fellas?"

I believe that as the primary argument for Constitutionality of the mandate rested on the Commerce Clause, it needed to be addressed and is an important part in getting to his final decision. I'm a laymen, so I'm not sure, but maybe he cited Hooper v. California to connect the two?; 6/29/12, 9:40 PM
Michael K said...: ""Obamacare outlaws cash practice. Oh well. I'm retired but might need care."

How/where does it do that?"

I saw that a couple of days ago and I think it is part of the regulations proposed by the payment panel. I can't find it at the moment, but as I recall, it requires all physicians to accept the restrictions on care provided. These plans all are adamantly opposed to opting out. Massachusetts has proposed legislation to require accepting the state plan as a condition of.
licensure.

I'll do some more looking. A quick look at the act doesn't show it. Most of this law is in the regs, not the bill text.; 6/29/12, 9:45 PM
Revenant said...: The commerce clause language in the ruling is effectively meaningless. The tax power Roberts invented is more powerful, and more extensive, than an unrestricted commerce clause would have been.; 6/29/12, 9:47 PM
MnMark said...: As near as I can tell, there ARE no constitutional limits anymore. According to Roberts, passing an individual mandate would have been a violation of the Commerce Clause. But since it was "just" a tax, it was ok. That means that it's ok to impose taxes on constitutionally-protected behavior -- say a $10,000 tax for owning a firearm, or a $50,000 tax for having an abortion, or a $100,000 tax on speech that the party in power doesn't like. Cuz, see, they're not *prohibiting* those things; they're just imposing a tax! Of course, if you don't pay the tax, the IRS will put you in prison...but don't think that's the same as regulations and penalties. Nope, it's just a tax!

That's what's called a distinction without a difference. Whether I get thrown into prison because I refuse to buy health insurance, or I get thrown into prison because I refused to pay the "tax" that is imposed on people who don't buy health insurance, the outcome is the same.

Unless I am missing something, I can only conclude that Roberts is either not very good at law or else he is just another of those flaccid conservatives who thinks the sky will fall if conservatives ever actually aggressively undo the creeping liberalism of the last 50 years.; 6/29/12, 9:57 PM
Sydney said...: Michael K,

I've read speculation that they might do that sort of thing, but I don't think it is in it yet.

Initially, CMS took steps toward this. Currently, testing and supplies ordered by physicians who have opted out are covered. They were thinking of not covering them, but backed down after pressure from the AMA.

I could see both options you mentioned happening if Obama wins another term.

However, there is also a bill making its way through Congress that is supposed to make it possible for patients to see doctors who have opted out of Medicare and then request Medicare to reimburse them. That would be a vast improvement. It's called the Medicare Patient Empowerment Act.; 6/29/12, 9:59 PM
Revenant said...: Anyone who thinks Roberts is going Souter hasn't been paying attention to his record over the past 7 years.

That's a silly-assed argument. It is like saying you can't call someone a bad surgeon if he had a good record for the seven years prior to accidentally killing a patient while high on crystal meth.; 6/29/12, 10:21 PM
traditionalguy said...: Face it, Roberts added his and the SCOTUS blessings to an egregious falsehood used to pass a massive Tax that begged to be judged as the faked penalty for a failure to engage in commerce that it claimed to be.

With enemies like Roberts, Obama doesn't need friends.

The inane Chief Justice drew up a better argument than Obama=Pelosi had and used it to sink the American ship of state.

It's too late to go back. The game is over and the Destroyer-in-chief has won Ny tionalized heal th care and the election.

Roberts is a gutless wimp. Or he was paid off. We will never know which one is true unless he tells the truth some day. But he is a great admirer of falsehood as a legitimate DC ruling class tactic.; 6/29/12, 10:23 PM
Saint Croix said...: Here's the law professor (Randy Barnett) the bloggers are refuting. I think he's right!

This case joins Lopez and Morrison as another restriction on the commerce clause.

Guns near a school = not commerce

Violence against women = not commerce

Doing nothing = not commerce

I think all of these cases stand for the proposition that Congress has to be regulating commerce under the commerce clause. That's the common sense way to read that clause.

The more federal criminal statutes that are struck down as non-commerce, the stronger this argument will be.

If I had a client charged with a federal crime that was non-commercial, I would certainly be using this case in my arguments (along with Lopez and Morrison).

Also of course the 7-2 ruling on the use of the spending power is a huge win for the 10th Amendment, and a slap in the face to the Obama administration (including a no vote from his nominee, Kagan). The most important con law aspect of this case is the spending part of the opinion, I think.; 6/29/12, 11:03 PM
wildswan said...: When you have a lemon, make lemonade. We should make the tax argument. There are 340,000 people in Wisconsin who now don't have insurance, according to the Journal Sentinel and everyone of them has to have it by 2014. That's at least 1,000 dollars per person that either they pay or else they pay a tax. It won't be easy to get 1,000 dollars from 340,000 people. They won't like the tax alternative - paying money for nothing. And if the 340,000 are going to be subsidized because they are poor then the Wisconsin taxpayers will be coming up with that money which would mean higher taxes for 3 million voters. This is what a vote for a Democrat means for Wisconsin.; 6/29/12, 11:08 PM
Saint Croix said...: That means that it's ok to impose taxes on constitutionally-protected behavior -- say a $10,000 tax for owning a firearm, or a $50,000 tax for having an abortion, or a $100,000 tax on speech that the party in power doesn't like.

No, all those "taxes" are actually criminal fines, designed to punish and control rather than raise funds. For instance you would have to have a criminal proceeding to determine that the citizen owned a gun, had an abortion, or made the speech. Hence, criminal fines, not a tax.

Roberts spells out this stuff in his opinion.; 6/29/12, 11:16 PM
Beach Brutus said...: Conservative constitutionalist have been hacking away at commerce clause jurisprudence for several generations, and now Roberts gives the progressives an apparently unlimtied taxing clause power. Constitutional Whack-A-Mole.; 6/29/12, 11:21 PM
Saint Croix said...: The tax power Roberts invented is more powerful, and more extensive, than an unrestricted commerce clause would have been.

Oh my God, that's so wrong. Almost all the federal crimes are defined under the commerce clause power. The commerce clause is regulatory. "You can't do this." If you do it, you're a criminal. You go to jail or pay a fine. They execute people under the commerce clause.

The taxing power is the method by which the government raises funds. They've always had this power. It's not like John Roberts invented the tax power. "Oh, I have to pay taxes now." You had to pay taxes last year, and the year before, and the year before. You will always have to pay taxes. There will always be taxes. Every government in the world has taxes. There are no tax-free societies. I wish the libertarian utopians would shut up on this point. You're embarrassing us. Try quoting Scalia on the dangers of the government's ability to tax us. You won't find it in his opinion. It's not there. Yes, the government can tax us. They can tax us for existing. The can us for being born. They can tax us for dying. They can tax us for shits we drop in the commode. There is nothing, repeat nothing, in the Constitution that says the government cannot tax us. Yes, they can tax us!

If you want to stop them, vote. Vote, vote, vote. Vote!; 6/29/12, 11:42 PM
Tim said...: "I'm going to have to rely on Ann and other law bloggers as this goes forward. At least I trust them to tell me the truth more than I trust politicians. Or used car salesmen, or journalists."

Really?

Why? They're all playing the same game, for the same reason. Trusting any of them is a fool's game.

Want to protect your liberty?

Trust yourself.; 6/30/12, 12:03 AM
Chip S. said...: This comment has been removed by the author.; 6/30/12, 12:17 AM
Chip S. said...: This comment has been removed by the author.; 6/30/12, 12:18 AM
Chip S. said...: Richard Epstein joins most of the rest of us (aside from St. Croix and Seven Machos) in saying that Roberts's opinion is "confused" and "wrong".

Consider first the constitutional text. Chief Justice Roberts refers to Congress’s power to “lay and collect Taxes.” But it’s worth recalling the surrounding language, which notes that Congress has the power to “lay and collect Taxes” only in order “to pay the Debts and provide for the common Defence and general Welfare of the United States.”

(IMO that sounds a lot like the "revenue test" I was arguing for last night.)

Epstein goes on to say:

There is no practical difference between ordering an action, and taxing or fining people who don’t do that same thing. If the Constitution limits direct federal powers, it must also limit Congress’s indirect power of taxation....

If direct regulation is beyond the scope of the Commerce Clause (as he held), then taxation as an indirect route to the same regulation should be off limits as well (as he failed to hold).

Makes perfect sense. I suppose that makes it not lawyerly enough for Roberts's defenders.; 6/30/12, 12:20 AM
ampersand said...: Does anyone seriously expect the Republicans,with their recent history,to repeal this crap? They're already using weasel words to get campaign money.
"Send money and we will work to TRY to get ACA repealed."

Here's my prediction if the Republicans get in,their high priority will be getting their offices redecorated.
They will attempt 1 flabby repeal of this mess,being just 1 vote shy of passage . The one vote short will be some new (or old)
Republican maverick media star.

The next Obamacare vote will be confirmation of the first Secretary of the American Medical
Commissariat. Probably that nice Dick Lugar,he's looking for work.
As for conservative principles, they can always name the new multibillion dollar office building after Ronald Reagen.; 6/30/12, 12:21 AM
Doc Holliday's Hat said...: I haven't read a comment here, so I do not know if this has been said already, and if it has, I apologize, but...I think Roberts just struck a two fold blow for conservatism. The first was having the liberal justices admit to a boundary on the commerce clause. The second was pretty much pulling the rug out from the modern bureaucratic state. I honestly believe his opinion sets up an massive regulatory scheme enacted under administrative and non-taxing ideals to be litigated as a tax. It will take a while to get to that point, but I think he just stripped away the artifice of Orwellian language when it comes to governing. A tax is now a tax, and not a penalty, or a regulation, or a rule. And if there's one thing Americans hate more than they love free stuff, it's paying for that stuff. I could be massively wrong on this...but I hold out hope.; 6/30/12, 12:22 AM
Michael K said...: " sydney said...
Michael K,

I've read speculation that they might do that sort of thing, but I don't think it is in it yet.

Initially, CMS took steps toward this. Currently, testing and supplies ordered by physicians who have opted out are covered. They were thinking of not covering them, but backed down after pressure from the AMA.

I could see both options you mentioned happening if Obama wins another term. "

I will keep looking. I did see it although it could have been a proposal. If you are a physician, you really should read this and the other chapters. I've read parts but am now going through the whole thing. Most of it is not that new to me but very well stated.; 6/30/12, 12:43 AM
Revenant said...: Hence, criminal fines, not a tax. Roberts spells out this stuff in his opinion.

Except he provides no standard for distinguishing one from the other. He admits that the primary purpose of the mandate fine is to penalize those who refuse to buy insurance, but goes ahead and gives it the thumbs-up as a tax anyway.

If you can do that, why can't you have a tax on not carrying a pregnancy to term?; 6/30/12, 1:01 AM
Carnifex said...: @Roberts apologists

You fail and fail to defend this buffoon. For the umpteenth time...

He ruled that the "penalty" wasn't a "penalty" it was a "tax", even though the law as written said "penalty". So in effect he has said "It doesn't matter what is written in the law. What matters is that we 9 supreme court members know what was intended and that is all that matters. Tomorrow, we may rule up is down, we can breath water, and Pi=3 because it doesn't matter what anyone else says. It matters what we say. Ps. If you don't like it, tough, we are appointed for life. Sucks to be you."

How the power to just arbitrarily redefine words and what they mean isn't conferring omnipotent power on the government, what does?

All this would have been avoided if Roberts could have just said, "You know, the congress doesn't have the power to penalize someone for not buying a product."

I don't know what's worse, that he was so stupid that he couldn't see past his own judicial brilliance, or you guys still kissing his feet. Where is your manhood.

All the rest is bullshit. I'm going to fill out every goddamn application I can find in order to bankrupt this POS as soon as possible. For my kids, and your kids, I'll use Roberts comment "tough shit"(see I can re define what other people say too. I'm like that. I apply the standards you set) As an added bonus, the services will be going to an American, not a goddamn illegal allien(illegal, not undocumented, illegal) Time to start calling bullshit on progressives renaming stuff.

Zero is a socialist
democrats love socialism
RINO's are no better.

Roberts should die of rectal cancer in a nationalized health care hosptal...THAT would be justice.; 6/30/12, 1:05 AM
Palladian said...: I wish the libertarian utopians would shut up on this point. You're embarrassing us.

That's what we're trying to do, but of course those that stand on the side of seemingly unlimited State power, whether they're Democrats or members of the Grand Old Party, don't embarrass easily. It's hard to feel shame when you like to be on your knees, isn't it?

Try quoting Scalia on the dangers of the government's ability to tax us. You won't find it in his opinion. It's not there.

But of course, since Antonin Scalia, who is such a philosophical defender of freedom that he concurred in Gonzales v. Raich, is the absolute last word in American liberty! We're absolutely lost without his endorsement!; 6/30/12, 2:39 AM
Jaq said...: I think of it as the "cry havoc" decision. It is time for us to get serious, the way the Alinskyites did to foist this tool on us in the first place, and defeat him in the fall.

If you have a system at work where you apply for vacation, apply for some around the election right now and get thee to a swing state!; 6/30/12, 5:29 AM
DEEBEE said...: Fully agree with the "limit" analysis. What is indigestible is the fact that Roberts rewrote the law instead of forcing the congress to redo. Yes there is a democratic limit on the tax side but Roberts short circuited it in this case.; 6/30/12, 5:36 AM
Sydney said...: Michael K,
Your link goes to a non-existing Althouse page. What book are you reading?; 6/30/12, 6:55 AM
Jessica said...: Isn't all the commerce clause stuff just dicta? Can't the court simply ignore it as such in future decisions?; 6/30/12, 8:09 AM
Calypso Facto said...: "What is indigestible is the fact that Roberts rewrote the law instead of forcing the congress to redo."

That's what I've been saying since Thursday here too. I know the Supremes have a duty to try to ascertain how a law COULD be Constitutional, but they definitely do NOT have a duty to interpret the law in a manner that Congress specifically said it did NOT intend.

I agree we got some important Commerce Clause limitation, but we could have easily had that AND no ACA, so it's a pretty pathetic "win".; 6/30/12, 8:12 AM
LoafingOaf said...: "Roberts should die of rectal cancer in a nationalized health care hosptal...THAT would be justice."

Dear Lord. If you didn't want Democrats to reform health care maybe Republicans should have done so in a manner more to their liking when they could have. It's strange how Republicans are freaking out so much when the individual mandate was an idea that came from the Republican Party, including your current presidential candidate.; 6/30/12, 9:13 AM
Shite said...: " Dear Lord."

Indeed. I foresee many, many more people on the right starting to use the tactics the left has used for decades.

Enjoy the vicious, a-holes.; 6/30/12, 10:46 AM
MnMark said...: Epstein goes on to say:

There is no practical difference between ordering an action, and taxing or fining people who don’t do that same thing. If the Constitution limits direct federal powers, it must also limit Congress’s indirect power of taxation....

This is exactly what I said.

The upshot of this decision is:

(1) The Commerce Clause stuff is just dicta, so it can be ignored in the future.

(2) Congress can discourage/penalize/encourage any action they want, even actions they otherwise have no Constitutional power over, as long as they implement it as a "tax".

(3) Roberts rewrote the ACA for the Democrats and now they don't have to try to get it passed again.

Roberts not handed a complete win to the Left - they get Obamacare - he handed them a huge new way of infringing on Constitutionally-protected freedoms that they didn't have before. He gave conservatives nothing except unbinding lip-service on the Commerce Clause.

Which is pretty much what the entire Bush administration was like: passing new expansive liberal programs into place (prescription drug benefit, No Child Left Behind, attempts at amnesty for illegals) while giving conservatives nothing but meaningless lip service.; 6/30/12, 11:17 AM
Saint Croix said...: those that stand on the side of seemingly unlimited State power

What kind of free society do you expect to have with unelected dictators who invent rights out of thin air? Imagine a Supreme Court that started striking down taxes it didn't like. That might make you happy in the short term. But what do you do when your new dictators do something you don't like?

The solution to over-taxation has always been the vote. Always! When have we relied on the unelected branch of the government to tax and spend for us? Never!

It would be dangerous to give the Supreme Court control over the tax power, or the spending power. I don't trust the government, and I certainly do not trust the unelected branch of it. And when the unelected branch screws up (which they do, often!), there is no fixing it. You literally have to wait for them to get old and die.; 6/30/12, 12:44 PM
Saint Croix said...: The cry of the Tea Party is "no taxation without representation!"

Taxing goes hand in hand with voting.; 6/30/12, 12:49 PM
selworks said...: I'm just another non lawyer, but this decision strikes me as perhaps the worst in the history of the Court. I'm mystified by the non-chalance with which it is viewed, especially by law profs. Now we can be taxed for non-activity? Great. Here's an idea: let's have President Romney sign the Roberts Civil Society Act, whereby anyone who is 21 years of age, not a felon, and does not own a firearm, is taxed $500 each year. Oh, and an extra $300 for not having a Concealed Carry License. Maybe another $100 for not having purchased any ammunition. If we're going to throw away our freedom in exchange for getting allegedly free stuff from those wicked rich people, we can at least have some fun.; 6/30/12, 4:35 PM