If you're conversant with negative Commerce Clause doctrine — AKA the "dormant" Commerce Clause — then you know why the Supreme Court split the way it did.

The case that came out this morning is National Pork Producers Council v. Ross.

Gorsuch announces the judgment. Much of what he says is joined by the conservatives Thomas and Barrett and by the liberals Sotomayor and Kagan, and some of what he says is joined only by Thomas and Barrett. The Chief Justice concurred in part and dissented in part, and he was joined in that dissent by the conservatives Alito and Kavanaugh and also by the liberal Jackson. There are some additional opinions by Sotomayor, Barrett, and Kavanaugh.

The Commerce Clause — which empowers Congress — has been interpreted to bar the states from discriminating against interstate commerce and, more controversially, from putting too much of a burden on interstate commerce. The California law in question in the case forbids the sale, in California, of meat from pigs that have been raised, anywhere, in a manner California deems cruel. 

The split among the conservatives seems to be between those who favor judicial restraint and federalism and those who want more freedom from regulation.

"Justice Kagan... suggested we could be headed toward a future where blue states forbid the sale of goods produced by non-union labor..."

"... while red states respond with their own laws forbidding the sale of goods that are made by unionized workers. Justice Amy Coney Barrett worried about states prohibiting the sale of goods produced by unvaccinated workers; or by employers who won’t pay for gender-affirming surgery for transgender employees. Justice Brett Kavanaugh imagined a red state that bans the sale of fruit picked by undocumented immigrants. Their point was that, if California is allowed to effectively decide how pig farms will be run in all 50 states, that could permit... 'economic Balkanization'... Every state could start using their own laws to impose their will on their neighbors. And manufacturers might have to choose between selling their products in California (and complying with California's left-leaning rules) or selling their products in Texas (and aligning with Texas’s conservative values). But none of the justices seemed sure where to draw the line to prevent this kind of dystopia from emerging, while also permitting states to enact the kind of ordinary economic regulations that have existed for many years."

From "High-stakes case about pigs/National Pork Producers v. Ross presents difficult questions about when one state’s laws can impact life in other states" (Vox).

The case is about a California law banning the sale in California of pork from pigs not raised according to California standards. The constitutional law in question is the "dormant" Commerce Clause doctrine — the idea that Congress's power to regulate interstate commerce implies a loss of power to the state to engage in regulation that would damage interstate commerce.

You can listen to the lively oral argument here.

ADDED: This is good, from Justice Gorsuch (transcript):

[W]hy isn't [the Pike balancing test] just a form of enshrining non-textual economic liberties  into the Constitution... a project this Court disavowed a long time ago? We're going to have to balance your veterinary experts against California's veterinary experts, the economic interests of Iowa farmers against California's moral concerns and their views about complicity in animal cruelty. Is that any job for a court of law? I mean, the Commerce Clause, after all, is in Article I, which would allow Congress to resolve any of these questions.

"But the Graham bill — like Democratic proposals for federal laws protecting abortion against state restrictions — is a reminder that key elements of both parties' bases..."

"... would be happy to enact a federal takeover of abortion law, if given the chance. If either party manages to get strong majorities in both houses plus control of the presidency, it could potentially happen. At that point, the courts would have to consider whether the Constitution really gives Washington such sweeping authority. The reasoning needed to uphold a federal abortion law would also allow Congress to forbid virtually any other medical procedure, and a vast range of other activities, as well."

Writes Ilya Somin in "Lindsey Graham's Proposed Federal Abortion Ban is an Unconstitutional Assault on Federalism - But it Might Fly Under Current Supreme Court Precedent/The problem is the Court's ultra-broad interpretation of Congress' power to regulate interstate commerce. But the justices might cut that back" (Volokh Conspiracy).

Click over there to see the discussion of the case law, which I think clearly establishes that the Commerce Clause supports legislation restricting abortion or creating a right of access to it. Graham's bill — if it advanced — would tempt liberals to argue for the conservative position on commerce power and conservatives to argue for the liberal position.

"He’s old, but he looked energetic and spoke clearly. He made a few errors — who’s 'clipping coupons' in 'the stock market?' But in general..."

"... he was forceful and seemed knowledgeable. In particular, he nailed Sen. Elizabeth Warren on how her health care plan would increase taxes on the middle class. And he was surprisingly sensible in dismissing 'court-packing' schemes. His final remarks were a bit over the top, but after three hours I’d probably have been raving, too."

Writes Glenn Reynolds, declaring Joe Biden one of the "winners" of last night's debate (in USA Today).

A low bar for "surprisingly sensible"!

ADDED: Here's the transcript of the Court-packing part:

BURNETT: The Supreme Court is currently made up of five Republican-appointed justices and four appointed by Democrats. The court just announced it will hear arguments in a case challenging some abortion rights. Vice President Biden, the Constitution does not specify the number of justices that serve on the Supreme Court. If Roe v. Wade is overturned on your watch and you can't pass legislation in Congress, would you seek to add justices to the Supreme Court to protect women's reproductive rights?

BIDEN: I would not get into court packing. We had three justices. Next time around, we lose control, they add three justices.

Three? Seems to me — if "we" means Obama and Biden — that they had 2 — Sotomayor and Kagan and "they" — if "they" means Trump — had 2 — Gorsuch and Kavanaugh.

We begin to lose any credibility the Court has at all. I want to point out that the justices I've supported, when I defeated Robert Bork -- and I say when I defeated Robert Bork, I made sure we guaranteed a woman's right to choose for the better part of a generation. I would make sure that we move and insist that we pass, we codify Roe v. Wade.

This is a good point. If the Supreme Court overrules Roe v. Wade, you don't have to pack the Court and keep going back to the Court for a different answer. You just need to pass a federal law guaranteeing the right. If you have the power in Congress to legislate to changed the configuration of the Court, you'd also have the power to legislate a federal right to have an abortion (though there's a slight danger that the Court could say the commerce power doesn't cover the regulation of abortions).

The public is already there. Things have changed. And I would go out and I would campaign against those people in the state of Ohio, Alabama, et cetera, who in fact are throwing up this barrier. Reproductive rights are a constitutional right. And, in fact, every woman should have that right. And so I would not pack the court. What I would do is make sure that the people that I recommended for the court, from Ruth Bader Ginsburg to Elena Kagan, who used to work for me, to others, that they, in fact, support the right of privacy, on which the entire notion of a woman's right to choose is based. And that's what I would do. No one would get on the Court. And by the way, if, in fact, at the end of this -- beginning next year, if, in fact, one of the justices steps down, God forbid, in fact, I would make sure that we would do exactly what McConnell did last time out. We would not allow any hearing to be held for a new justice.

"The justices now have eight more opinions to release, on topics ranging from partisan gerrymandering... to the dispute over the Trump administration’s decision to include a question about citizenship on the 2020 census."

Writes Amy Howe, with summaries of the 8 cases.

We're just a few minutes away from the release of new opinions, which will be announced right away in the live-blogging at SCOTUSblog.

UPDATE:

Justice Gorsuch has the first opinion, in US v. Haymond.... The court holds that a federal law requiring a defendant who is registered as a sex offender to return to prison for at least five years if a federal judge finds that the defendant violated the terms of his supervised release is unconstitutional.... Gorsuch writes that only "a jury, acting on proof beyond a reasonable doubt, may take a person's liberty." But in this case, a federal law required a judge to send Haymond to prison without "empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt. As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments."...

We have Kisor v. Wilkie, from Justice Kagan.... This case was about whether to uphold the doctrine known as Auer deference, which instructs courts to defer to an agency's interpretation of its own regulation.... Kagan says the only question before the court is whether to overrule Auer, and the answer is no. But "even as we uphold it," she writes, "we reinforce its limits. Auer deference is sometimes appropriate and sometimes not."

We have our third and FINAL opinion of the day.... TN Wine and Spirits v. Thomas, from Alito. This is the challenge to the constitutionality of Tennessee's residency requirements for retail liquor licenses.... The Supreme Court affirms the Sixth Circuit's ruling, which struck down the residency requirement.

ADDED: The last one is in the area I used to teach. It's a negative commerce clause case (made interesting because the subject is the sale of alcohol, and there's a special text, the 21st Amendment). The majority opinion, written by Alito, is joined by everyone except Gorsuch and Thomas. Thomas's strong position against the negative commerce clause [AKA the "dormant commerce clause"] was already known. It's interesting to see Gorsuch here. Gorsuch writes the dissenting opinion, and it's the one opinion I'll read this morning.

From the Gorsuch opinion in TN Wine and Spirits:

Did Elizabeth Warren suddenly transform the abortion debate?

I'm about to read Andrew Sullivan's new column, "Elizabeth Warren Just Transformed the Abortion Debate."

Warren, as you might have noticed, has come out in favor of what isn't a new idea but simply a seemingly newly urgent idea: protect the right to abortion with a federal statute. The idea is that it won't matter if the Supreme Court overrules Roe v. Wade if there's a federal statutory right. So, Congress, just pass that statute, if you can, and as long as there's no successful constitutional challenge to the new statute, there will be a right to have an abortion... subject to repeal by Congress.

Abortion politics intensifies. First, members of Congress will be pressured to take a position, even now, just because Warren has proposed it. Later, there may be a bill to vote on, and if it passes, there will be endless political efforts to repeal it, and, if it is repealed, to enact it again. And we'll still fight about who gets on the Supreme Court, because we will still care about the constitutional rights, even if they are replicated in statutes, because statutes can be repealed and because the statute will be challenged as beyond Congress's legislative powers.

When Congress passed a statute banning "partial-birth" abortion, the Supreme Court upheld it, but Justice Thomas, joined by Antonin Scalia, wrote a concurring opinion, to "note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court." The pro-choice parties who challenged that law were not the sort of people who argue for a limited interpretation of the commerce power issue, but you can bet that if Congress passed a law protecting access to abortion, it would be challenged by people who don't mind making that argument.

Now, let me get on with my reading. What does Sullivan have to say?

Elizabeth Warren is... right. Congress can legislate on abortion; the matter can be settled through politics, rather than through a strained parsing of the Constitution by the courts. Political arguments can be made, and countered. Voters can go to the polls to support candidates who will vote for such a law, which will make any previous Supreme Court ruling irrelevant.

This is the process called politics. And America, for 46 years, has tried to keep abortion out of it. It’s encouraging to see Warren jump into the fray to bring legislative politics back to the subject — and to call the right’s bluff on taking that approach. It’s amazing it has taken this long.

It's not amazing to me. Sullivan is missing the complexity of the law and politics. Does he think Warren came up with a new idea here, that a statute could be passed and would remain intact and isn't subject to a challenge in court, and that there wouldn't be a threat to repeal the statute?

The idea of a federal statute is an old one, so the question should be, why don't we already have it? I think if the Court already had overruled Roe v. Wade, we would already have seen this statutory effort (and if in the future it does, we will). The failure of Congress to provide the statutory right to abortion isn't a mere oversight. It's a political choice.

Will Elizabeth Warren's prominent call for this statute change anything (any more than things are already changed by new state statutes restricting abortion and by new Justices on the Supreme Court)?

I do not think Warren's call will get that statute passed any time soon, but it will create the occasion for questioning abortion rights proponents in Congress about why they are not using their legislative power right now to secure the right. They are in default! Opponents of abortion who are running for Congress will be able to stir up pro-lifers with the argument that overruling Roe v. Wade — the long-sought goal — won't matter if the Democrats win the 2020 elections. So which side is helped by talking about this statute? See why it hasn't been talked about much?

The second-to-last sentence in Sullivan's column is: "What we desperately need to do is take this issue out of the polarizing abstractions and into the nitty and the gritty of democratic give and take."

I think we've had "polarizing abstractions" and "the nitty and the gritty of democratic give and take" all along, and we can highlight the possibility of a federal pro-abortion-rights statute but we'll still have polarizing abstractions and nitty-gritty democratic give and take.

This won't hold up, but in case you're fired up to talk about it.

"Federal judge in Texas rules Affordable Health Care Act unconstitutional/Ruling comes on eve of the deadline for Americans to sign up for coverage in the federal insurance exchange created under the law."

ADDED:

As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!

— Donald J. Trump (@realDonaldTrump) December 15, 2018

MORE: Continue the discussion at this new post which briefly shows how the judge's argument worked. The key issue is severability.

A sentence written at the Flesch-Kincaid Grade Level of 43.7.

Encountered in reading I assigned:

For a century the States had submitted, with murmurs, to the commercial restrictions imposed by the parent State; and now, finding themselves in the unlimited possession of those powers over their own commerce, which they had so long been deprived of, and so earnestly coveted, that selfish principle which, well controlled, is so salutary, and which, unrestricted, is so unjust and tyrannical, guided by inexperience and jealousy, began to show itself in iniquitous laws and impolitic measures, from which grew up a conflict of commercial regulations, destructive to the harmony of the States, and fatal to their commercial interests abroad.

From the famous old case Gibbons v. Ogden (1824).

50 years ago today: The Supreme Court upheld Congress's Commerce Clause power to ban race discrimination in places of public accommodation.

In Heart of Atlanta Motel, Inc. v. United States:

[The record in both houses of Congress in passing the Civil Rights Act of 1964] is replete with evidence of the burdens that discrimination by race or color places upon interstate commerce.... This testimony included the fact that our people have become increasingly mobile, with millions of people of all races traveling from State to State; that Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances to secure the same; that often they have been unable to obtain accommodations, and have had to call upon friends to put them up overnight, and that these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook which was itself "dramatic testimony to the difficulties" Negroes encounter in travel. These exclusionary practices were found to be nationwide, the Under Secretary of Commerce testifying that there is "no question that this discrimination in the North still exists to a large degree" and in the West and Midwest as well. This testimony indicated a qualitative, as well as quantitative, effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler's pleasure and convenience that resulted when he continually was uncertain of finding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community...

The 6th Circuit reverses the hate-crime conviction of 15 Old Order Amish for cutting off the beards of Amish men and hair of Amish women.

Marty Lederman criticizes the court:

A critical part of the majority's decision is based upon its conclusion that the evidence did not necessarily prove that the victims' religion was a but-for cause of the assaults. That conclusion strikes me as untenable — indeed, deeply disturbing in its implications....

[T]he assaults... came in the wake of a profound rift within this particular Amish community.  [The Bishop of the Bergholz community, Samuel] Mullett had excommunicated several church members for challenging his leadership.... Mullett was angry.... The series of assaults then followed, under Mullett's direction. The victims were all Amish individuals who were apostates in Mullett's view.... As the court notes, Amish men do not trim their beards, and Amish women do not cut their hair, "as a way of symbolizing their piety, demonstrating righteousness and conveying an Amish identity.

The criminality of the assaults is obvious, but is it a federal crime, a "hate crime" under 18 U.S.C. § 249(a)(2)(A)? It is if it's done "because of the actual or perceived . . . religion . . . of [that] person." The problem is that the trial judge's instructions translated that into a need to find that the victims' religion was "a significant motivating factor," but the appellate court said religion needs to be the "but-for" cause (that is, without this motivation, the act would not have taken place).

Lederman assumes the court is right about that but buys the government's argument that the error was harmless.

Based solely on the undisputed facts described in Judge Sutton's opinion... it appears to be clear that at least some of the victims--those who were excommunicated or who left voluntarily, at a minimum--would not have assaulted but for the fact that Mullett viewed them as heretical.  (Mullet said that beard and hair cuttings would stop people from being “Amish hypocrites.”) And that's true even if the particular assailants were motivated in the first instance by other factors, such as interfamilial disputes or anger about nonreligious actions of the victims....

[And] isn't it plain beyond any doubt that the victims' religion was a but-for cause of the type of bodily injury that occurred here — the cutting of beards and hair?  The assailants obviously chose to use that very unusual form of assault because the hair and beards were of deep religious significance to the victims — indeed, to strike at a fundamental component of their religious identity, by deliberately imparting a tangible, humiliating public sign that the victims were religious outcasts.

"Barely a third of U.S. senators pay their interns — and embarrassingly for Democrats, a party focused on workplace welfare, most of them are Republicans."

Under the heading "EXPLOITATION," Instapundit links to this piece in The Atlantic.

No pay is the ultimate defense against the accusation of low pay.

It's the difference between a girlfriend and a cheap prostitute.

If you don't have the money to buy something at a price that won't offend the seller, you should try to get it for free. Then the seller is flattered.

This is the way the world works. Not everything is commerce, or — I should say — not everything is always usefully portrayed as commerce. The only hypocrisy I see in Congress here is that whenever they want to use their Commerce Power, they'll argue that their regulatory target is commerce.

Waiting for Fisher....

Another Supreme Court opinion-announcement day... 

ADDED:  First up is American Trucking v. LA, a Kagan opinion. They announce opinions in order of seniority, and Kagan is least senior. Something about trucks... and preemption. [ALSO: This case has a concurring opinion from Justice Thomas saying Congress's statute is not supported by the Commerce Clause, "at least in certain contexts."]

AND: A second opinion, Tarrant Regional Water Dist. V. Herrmann, from Sotomayor, the second-least senior. Something about water... and preemption.

NEXT: Third: Ginsburg's opinion, U.S. v. Davila. "This was a case in which the issue was whether there must be an automatic reversal if the judge played any role in the plea bargaining...  Federal Rule of Criminal Procedure 11 prohibits judges from participating in plea agreements, but another subsection of the rule also provides that a 'variance from the requirements' of Rule 11 is 'harmless if it does not affect substantial rights,' so this one did not come as a huge surprise."

ALSO: "We have gene patenting. The Court holds that natural isolated DNA is not patentable. Synthetic DNA is patentable." This is a very important case. Unanimous. Thomas wrote the opinion, so that means only Kennedy, Scalia, and Roberts are left to have opinions that might come out today. Here's the PDF of the case, Myriad Genetics. It's a unanimous opinion but Scalia concurs to say:

I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.

AND: That's it for today.

Did Chief Justice John Roberts "lose his cool"?

I keep reading about this incident, invariably with the focus on the Chief's demeanor, causing me to suspect that the press is covering for the Obama administration again:

The chief justice accused the solicitor general’s office of being less than candid, by suggesting (as he read the government’s brief) that the secretary of labor in the Bush administration had changed her mind “upon further reflection” when that was not the reason at all. Instead, he corrected, it was “a new secretary now under a new administration” who had done so.

The chief justice scolded, “Don’t say the secretary is now of the view. It’s not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous.”

You can listen to the interchange here, beginning at 29:00. Roberts sharply criticizes the government's lawyer, Joseph R. Palmore, for something that — it seems rather obvious — deserves criticism. I don't hear Roberts becoming inappropriately emotional, which is what "losing his cool" means.

Now, if you want to say Roberts is a hypocrite because his writing is equally disingenuous or worse, that's another matter. It's what Andrew Cohen at The Atlantic is doing in an item titled "The Nerve of John Roberts":

A little disingenuous. This from a judge who disappeared the scope of the Commerce Clause in the Affordable Care Act case.

Disappeared the scope? That's Cohen's way of referring to the identification of some limit on the scope of the commerce power, so that it didn't reach a private citizen's failure to purchase insurance. Congress has power under the Commerce Clause to regulate nearly everything else, which to Cohen's eye is no power at all. Unless it's everything, it's nothing. Disappeared!

This from a judge who gutted decades of First Amendment precedent in the Citizens United case after reaching out, unilaterally, to expand the scope of that campaign finance case.....

Yes, yes, roll out your list of Supreme Court decisions you wish went the other way. That's not in the same category as deceptively stating the facts of a case, which is simply not acceptable in lawyers' briefs. The Solicitor General's office disserved us. The Chief Justice called the lawyer on a deception and — with restraint — said he "found it a little disingenuous."

What I find disingenuous is the criticism of the Chief Justice. And after all he did for you upholding Obamacare! (He used the tax power instead of the commerce power).

But no thanks will be forthcoming. Pressure must be kept up. This is a big term for the Supreme Court — gay marriage (probably), affirmative action, the Voting Rights Act — and Roberts's vote may be required to reach what the media know are the right results. Roberts needs to know that any love for him is purely contingent. He's being watched.

If Romney wins, will it lead to the the Supreme Court overruling Roe v. Wade?

I explain why the answer is probably no, and that if it were yes, it would hurt the GOP:



This clip begins with an explanation of what Chief Justice Roberts did in the Obamacare case. Also, I speculate about what kind of Justices a President Romney might appoint. I don't expect them to be such staunch conservatives.

Randy Barnett talks about winning on the Commerce Clause, but losing the Obamacare case.

A second look at Jan Crawford's "Roberts switched views to uphold health care law."

Reading this article last night, I guessed that one of Crawford's sources was Justice Kennedy and that Chief Justice Roberts shifted his position in the process of writing about the question of severability (that is, whether to strike down the whole law if the individual mandate is unconstitutional). I reread the article today, and I want to highlight and stress 4 points.

1. Crawford never says that Roberts committed to a decision on severability. At the conference after the oral arguments, she says, Roberts voted with the conservative group that the commerce power did not support the mandate, but Roberts was "less clear" on severability. He assigned himself the opinion, and he followed through on the commerce power.

2. One of the sources describes Roberts as becoming "wobbly" by May and failing to adequately explain what he was doing. Once it emerged that Roberts would rely on the taxing power, there was "fair amount of give-and-take with Kennedy and other justices," that one justice described as "arm-twisting." (At least they weren't neck-wringing! (A Wisconsin joke.))

3. I see vanity as a motivation to talk to Crawford:

The two sources say suggestions that parts of the dissent were originally Roberts' actual majority decision for the court are inaccurate, and that the dissent was a true joint effort.

The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

They didn't like Roberts getting credit for their work, and they didn't like getting called sloppy. It was a strange situation: Court observers were airing suspicions that Roberts had turned, which was (apparently, at least partly) true, but they were using evidence that was (apparently) not true, and that wounded the pride of the dissenting Justices who wanted it to be known that they really did write their own opinion and that they hadn't made careless mistakes. They want respect, it seems. And they don't like Roberts getting all the credit... or perhaps any of the credit.

4. The source(s) want it known that Kennedy, more generally, deserves a great deal of credit for his work over the years on the Court. Here, again, I see vanity, as Crawford — seeming like a mouthpiece — says:

Kennedy has long frustrated conservatives, because he occasionally joins with liberals to provide the key swing vote in cases involving social issues. They openly mock his writing style as grandiose and his jurisprudence as squishy - in other words, changeable and too moderate.

That's not entirely fair to Kennedy....

Kennedy mocked as squishy? But Roberts went wobbly! I'm seeing a pattern to these protestations. I'm seeing a psychodrama here, with Kennedy feeling rivalry toward the Chief, who structured the decision in a way that would tend to draw admiration from many of the media folk who shower affection on Kennedy when he does the things they like. Kennedy — or somebody — seems to have wanted it to be known that it's Roberts' judicial demeanor and craftsmanship that deserves mockery.

"The commentary on John Roberts's solo walk into the Affordable Care Act wilderness is converging on a common theme: The Chief Justice is a genius."

"All of a sudden he is a chessmaster, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times."

So begins the Wall Street Journal editorial, overstating the convergence and — big surprise — setting up a critique of the Chief. His approach to the taxing power, the editors say, is new and scarily unconstrained. They're disturbed that Congress can configure a tax that shapes behavior that it could not simply command, and yet they admit — as they must — that tax law does that all the time. Congress can't compel you to go into debt to buy a house, but you'll pay less taxes if you have a mortgage interest deduction. Congress can't require you to get married, but single taxpayers get stuck with higher tax rates. Why is this new area of taxing so shocking?

Sources tell Jan Crawford that Chief Justice Roberts really did switch sides.

The CBS reporter heard from "two sources with specific knowledge of the deliberations."

Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law...

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold....

Chief Justice Roberts writes an opinion limiting the commerce power and the spending power.

This is an important opinion about federalism and the scope of Congress's enumerated powers. Even as the individual mandate was upheld under taxing power — and Roberts wrote about the expansiveness of that power — we have an opinion that is limiting those other 2 powers. I want to begin to talk about the Chief Justice's contribution to constitutional law as he writes about these 2 powers.

Let's not be distracted by the breadth of the taxing power. The American people exert tremendous political power against taxing. Look at the Tea Party. A political price will be paid — both for the tax and the deceit about imposing a tax.

What I want to do first, now that I have my hands on the opinion, is analyze the Commerce Clause doctrine.

"Nonlegal Arguments for Upholding the Individual Mandate."

Ilya Somin describes and refutes arguments based on enhancing the Court's "legitimacy," avoiding the appearance of "partisanship," and avoiding "judicial activism." Actually, calling these arguments "nonlegal" is part of the refutation.