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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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271 Responses

  1. Avatar ThatPirateGuy says:

    In celebration of the court respecting the constitution and lettin the ACA stand I am having steamed broccoli tonight.

    So happy that health care reform wasn’t destroyed by activist judges.Report

    • Even though it upheld the mandate, it’s worth noting that the Court expressly said it was not valid under the Commerce clause. In other words, it accepted the broccoli argument.

      I’m not certain whether I agree with that part of the decision since it was a close issue for me as Constitutional matter, but I must say that I very much think that part of the decision is a good thing as a matter of policy.Report

      • I had thought that if the mandate was to be considered a tax, the Court might have–or at least had the option to–defer judgment until someone actually challenged the collection of the “tax.” Is that correct?Report

        • Avatar Plinko in reply to Pierre Corneille says:

          I had heard that on the radio a bunch, but that kind of obviated the argument that it’s an unconstitutional mandate, doesn’t it? So why not just rule it as such now?Report

        • Avatar M.A. in reply to Pierre Corneille says:

          They might have, but the Supremes generally don’t like the idea of taking a case twice. I suspect they were looking to rule now and have it over with, and nobody on either side seemed to take the “defer judgement” option too seriously.Report

      • Avatar M.A. in reply to Mark Thompson says:

        I have no objection to a (slight) curtailing of the expansive view that previous Supreme Courts have had of the Commerce Clause. At some point it had seemed that the Commerce Clause could void almost any restriction on federal power, and I’m not for totally unlimited federal power.

        That being said, I’m also glad that the PPACA’s mandate was upheld under taxing powers as without a way to stop the free-rider problem, the rest of the law really would need to be taken back to the drawing board.Report

        • Avatar North in reply to M.A. says:

          Odd MA, I would think you’d have been hoping for a mandate invalidation. That’s the only realistic way that PPACA would be opened up legislatively for revisions short of a Democratic electoral blowout(we’ll tinker with it) or a GOP electoral blowout(we’ll repeal it).Report

          • Avatar M.A. in reply to North says:

            Individual provisions in PPACA can always be legislated later if need be, and I would encourage doing so. No law is perfect and I’m sure there are bits and pieces in there that need to be excised or revised.

            OTOH lose the mandate in a Supreme Court “nuh uh this is unconstitutional” ruling and there is no way to deal with the free rider problem short of trying to actually pass Single Payer, and we’ve already seen that the extreme right wing’s “fish the rest of the world, fish any ideas they have, Amurrika Fish Yeah!” mentality would lead them to go to civil war before allowing that to get as close as a committee vote.Report

            • Avatar North in reply to M.A. says:

              Well yes, but even if the right wing refused any co-operation, without the mandate the free rider issue would destroy the insurance companies unless Obama et all folded and refused to enforce the surviving provisions.Report

              • Avatar M.A. in reply to North says:

                Might destroy the insurance companies, but then we are looking at an even bigger mess because we have destroyed insurance companies, a healthcare system in complete ruins, and we’re trying to pass some new law to pick up the pieces. I don’t think that’s what anyone sane wanted.Report

              • Avatar Murali in reply to M.A. says:

                Actually, a healthcare system where the insurance companies were destroyed would probably turn out to do a better job of containing costs.Report

              • Avatar Jeff in reply to M.A. says:

                I don’t think that’s what anyone sane wanted.

                No comment. (But “no comment” is a comment, isn’t it…)Report

    • Avatar Brandon Berg in reply to ThatPirateGuy says:

      In celebration of the court respecting the constitution

      Ha! The Court hasn’t respected the Constitution since the Switch in Time.Report

      • Avatar MikeSchilling in reply to Brandon Berg says:

        the Switch in Time


        • Avatar wardsmith in reply to MikeSchilling says:

          “The switch in time saved nine”. During FDR’s reign of terror he threatened to increase the court’s size because they kept (correctly I might add) throwing out his illegal legislation. Coincidentally the chief justice at that time reversed his stance in 1937 to allow social security to continue, but not based on commerce clause rather on taxing authority.Report

          • Avatar BlaiseP in reply to wardsmith says:

            FDR’s reign of terror. That’s rich. I refuse to believe you would have preferred FDR’s enemies: Father Coughlin, the fascist Bund, Huey Long, the Wall Street Putschers and assorted fascist types. Knowing you’re a reasonably fair man, I feel bad even thinking such a thing.

            FDR saved the republic from a particularly nasty fate at the hands of the fascists. And yes, he did it with an inoculation of socialism, as Bismarck had similarly inoculated Germany with that vaccine to stave off Communism. It worked in the USA.

            The greatest mystery of the 1930s remains why Germany went fascist. Here was a nation of highly educated people, Freud, Einstein, Jung, thousands of intellectuals. German was then the language of science. How could these people have reverted to barbarism so quickly and so completely?

            Ward, it could have happened here.Report

            • Avatar North in reply to BlaiseP says:

              BlaiseP, didn’t Germany give in to fascism because of A) their surrender in World War I and B) the terms of their defeat in said surrender and how badly their post WWI government managed things?Report

              • Avatar BlaiseP in reply to North says:

                There are several schools of thought on this subject. I will go with the Germans I knew in the early 1980s, hardly scholars of the subject, but my old landlord survived Stalingrad and these are his thoughts:

                The Depression hit Germany hardest. Italy had emerged from the Depression under Mussolini. Though we think of Hitler as the great engine of fascism, Mussolini was the clutch and first gear which got fascism in motion. If Hitler got the whole rig into higher gears, he could not have done it without Mussolini.

                The Weimar Government wasn’t particularly awful. It didn’t have the resources to cope with the collapse in 1929 and particularly 1930. Investors stampeded out of German markets. Stalin’s fist finally encircles the USSR and Trotsky is exiled. The stage was thus set for the rise of the fascists in Germany, aided and abetted by the technocrats and industrial interests.Report

            • Avatar wardsmith in reply to BlaiseP says:

              Blaise, on another OP (one I hope you’ll write) we could get into this whole topic in depth. FDR made the Depression longer and deeper than it ever needed to be, and there are many who have claimed (correctly in my view) that he did so to promote his political agenda. The mid 20th century was full of monsters who “broke a few eggs” while making their omelets. FDR may not be credited with as many deaths as Stalin, but that is only because of the much greater wealth in the US. My mother, who lived through the era personally knew families who quite literally starved to death. When you write the OP, I’ll add in my own anecdata and links to buttress my case. As for Germany, Niemoller captured their denouement quite succinctly Hitler did a fantastic job of creating “the other” to rail against and as long as you weren’t a member of der anderen you felt safe. Until it was too late of course.Report

              • Avatar Kimmi in reply to wardsmith says:

                Families who starved to death? Okies? I seem to remember there was a reason the military is investigating global warming… But hell,if you want to claim the United States military don’t know what it’s talking about, it is a mostly free country. You can feel free to look like an idiot while doing so.Report

              • Avatar BlaiseP in reply to wardsmith says:

                Solid book. I recommend it to any scholar of the Depression, along with Bernanke’s Essays on the Great Depression which seems to be out of print, but I consider it essential reading.

                The protectionists made the Depression worse: they certainly spread it around. The Depression lasted considerably longer than it should have, on that we can agree. I have previously used the metaphor of a manual transmission. In 1932, the Fed raised interest rates in hopes of recouping some of the first flood of money injected into the economy. The Fed shifted out of first gear too early, the economy’s engine lugged horribly.

                I don’t like to engage in idle speculation, but I can’t resist a little of it to pass the time with a thinking man. What might have happened if the Fascists had come to power in Britain and successfully subdued the Communists? It was a narrow scrape, we know that now. I believe the USA would have gone fascist, too. If FDR’s political agenda included socialism, it was a strategy which had worked for Bismarck. Had WW2 not arisen when it did, FDR’s strategy would have failed: socialism never works out long term. It’s a good cure for some political diseases but it’s never a working modus vivendi.Report

              • Avatar wardsmith in reply to BlaiseP says:

                Hmm, ground already trod here and here. Italy had always been a conglomerate of politically competing interests (as they are today). Mussolini wanted them to unite behind /something/ hence fasci. The “idea” of a united Italy was great, the reality, not so much. Germans thought they were voting /for/ socialism. They had no idea of the wizard behind the curtain until it was too late.Report

              • Avatar aaron david in reply to wardsmith says:

                Ward, first link seems to be broken.Report

  2. I’m still ambivalent about whether I like that, but that’s the result I thought was right Constitutiuonally.

    Me too, more or less. I thought the ICC issue was a very close call, but the taxing power argument was correct, albeit undermined by the Administration’s claims in the early going that it was totally not a tax. My feeling was that issue should have been a no-brainer but for the decision to claim it was not a tax. I’ll be curious to see if the dissent on that issue tries to argue that it wasn’t a tax at all or if it tries to say that if it is a tax, it’s not a valid exercise of the taxing power.Report

  3. Avatar Burt Likko says:

    I’ve made several edits to this as more information about the opinion gets published, but as of this moment (7:35 Pacific time) I must cease my enjoyable morning blogging and get ready to go to a more mundane court and represent my own clients. FP’ers, please note the last paragraph in my edited OP.

    We SCOTUS watchers will have plenty to tide us over until the First Monday In October, that’s for sure. That commerce clause dicta… wow.Report

  4. Avatar Mike Schilling says:

    What is up with Roberts? That’s three recent decisions (Az ‘s anti-illegal-immigration law and two today) where he’s joining the “liberals”.Report

  5. Avatar Tod Kelly says:

    I have been fairly ambivalent about today’s decision. (I fully believe that a strike down would have only resulted in a single payer system down the road, and that attempting to make the current HRC workable will also result in a single payer system down the road.) I have been fairly certain that the only relevant area it would play out is the Presidential election; I think the Romney camp has been counting on either a worsening economy or Obama’s signature achievement being ruled unconstitutional.

    I had really been hoping for the ruling we got, however: in favor, with Roberts both voting to uphold and authoring the decision. I have been reading and hearing from so many people over the past week that it would fail because of Roberts – an honest, non-activist and non-Socialist judge that has the good of The People at heart. This has been so constantly repeated with such certainty that I am anxiously awaiting to see how the right spins this today in a way that makes Obama Evil and Roberts a Good Guy, and explains how everyone was so entirely wrong. It promises to be great fun.

    Let the backpedaling begin!

    (Note: I am not proud of this.)Report

    • Avatar North in reply to Tod Kelly says:

      I’d half hoped that the mandate would be struck down and the rest of it left in place. Then we’d have gotten to watch the conservatives try and decide whether to A) let the insurance industry implode and end up with single payer or B) actually negotiate with Obama and the Dems on health care for once.

      One take away; this ruling has saved Obama’s Hope&Change-above patrisanship style from the early years of his admin from being taken out back of the woodshed and shot (though it’s certainly still in the dog house).Report

      • Avatar Plinko in reply to North says:

        The more I thought about it the last few months, the more I’ve come to exactly this same view, North.

        I’ve been amazed at how the popular rhetoric has been exactly the opposite.

        A strikedown of the mandate, to me, would have been a huge win for liberals, a strikedown of the entire PPACA a huge win for conservatives and Republicans, and the complete upholding is a win pretty much only for Democrats currently holding national elected offices.Report

        • Avatar North in reply to Plinko says:

          Yes, Obama, the blue dogs and the centrists really got a big win out of this. Their names would have been mud if it’d gone down entirely and they’d have been disempowered if the mandate had been lopped off.Report

          • Avatar M.A. in reply to North says:

            We need more wins for the centrists and less for the frothing-mouthed right wing.

            The US doesn’t really even have a left wing any more, so I’ll take all the wins for the centrists I can get.Report

            • Avatar North in reply to M.A. says:

              Maybe not an empowered left wing but there’s certainly a large group of Demo pols to the left of Obama and the Blue Dogs and this is not a win for them (not a loss really either mind, but PPACA is very much a centrist sort of law so as long as it stands any alternative to the left of it is a non-starter).Report

              • Avatar Kimmi in reply to North says:

                let us finish rigging up a decent system. Then single payer THAT.
                Accountable care organizations are going to be FUN and interesting.Report

              • Avatar Scott Fields in reply to North says:

                A replacement for PPACA may be a non-starter now, but leftward “enhancements” are likely down the road. I wouldn’t be surprised to see the public option offered again the next time the Dems control the House.Report

              • Avatar North in reply to Scott Fields says:

                Yes, admissably PPACA does now represent a concrete beachhead from which future Dem majorities can work.Report

              • Avatar Jaybird in reply to North says:

                Will the insurance companies be more powerful or less powerful the next time the Dems have a majority?Report

              • Avatar Plinko in reply to Jaybird says:

                I have to assume less on Dems, what do they have left to offer but money? It’s just as likely that money goes to Republicans now as a bulwark against the creation of a public optionReport

              • Avatar Scott Fields in reply to Jaybird says:

                When you are trying to get it all done at once, nearly everybody has some power – see Cornhusker Kickback.

                With the beachhead established, incremental changes are easier. Isn’t this the slippery slope argument that is always being made?Report

              • Avatar North in reply to Jaybird says:

                Arguably less I’d say Jay. You can pour out bajillions to try and fight something as huge as PPACA and have some good odds of moving the public and making the legislative effort fail. But if the subject is an incremental change to clause X of paragraph B of the PPACA the public just isn’t going to pay enough attention and the Admin doesn’t face the same risks if they lose on trying to change it.Report

              • Avatar Jaybird in reply to Jaybird says:

                It seems to me that moving to single payer from the PPACA would entail as big a systemic change as from the PPACA as we had under Johnsoncare. Now, perhaps the difference philosophically is not as large… and maybe that’s the true gap that needs to be crossed… but, on a systemic level, it seems huge.Report

            • Avatar Scott in reply to M.A. says:

              If folks like Pelosi, Schumer, and Leahy aren’t fine examples of the loony left then who is?Report

    • Avatar cfpete in reply to Tod Kelly says:

      I am anxiously awaiting the backpedaling ala: “right wing coup” – “destruction of democracy” of this “politicized” 5-4 decision.
      I won’t hold my breath, but good to know where you stand TodReport

    • Avatar James Hanley in reply to Tod Kelly says:

      I am anxiously awaiting to see how the right spins this today in a way that makes Obama Evil and Roberts a Good Guy

      The Kenyan mob is holding Roberts’ daughter. She’ll be released as soon as the decision is officially published.Report

  6. Avatar James Hanley says:

    Ninth Circuit affirmed, the Stolen Valor Act is unconstitutional. Breakdown is Concurrence by Kennedy…

    Correction, opinion by Kennedy, even though it was only a plurality opinion (only he and 3 others signed onto it).

    Alito’s dissent was much like the dissent in Texas v. Johnson, a said justification for why we can limit unpatriotic speech.Report

    • Avatar Scott in reply to James Hanley says:

      Unpatriotic speech or lies? It seems that lies now have constitutional protection. How ironic that this ruling came out with obamacare.Report

      • Avatar James Hanley in reply to Scott says:

        Most lies have always had constitutional protection. Lies that defraud don’t, because you’re effectively stealing from people. But if we met on an airplane and I told you I was a Hollywood screenwriter and lived in a Beverly Hills mansion, and in my spare time consulted on cultural development for the Sultan of Brunei, that’s protected speech (even if I actually manage to get you to believe me). So the only difference here is that the lies are unpatriotic, they hurt the feelings of real Congressional Medal of Honor winners. The dissent is pretty blunt about that.Report

      • Avatar Kolohe in reply to Scott says:

        Oh, Scott, you’re so funny.Report

  7. Avatar Jaybird says:

    Oooh, maybe Roberts upheld it because he knew that it would totally take the wind out of the sails of the progressives and he’s practically handing Romney the White House!

    This isn’t about the PPACA at all! It’s Bush v. Gore II!Report

    • Avatar James Hanley in reply to Jaybird says:


    • Avatar North in reply to Jaybird says:

      I don’t know Jaybird; I’m an ameture American political watcher here but as I see it team Mitt is going to have a very hard time spinning this usefully. You have an unambigous win for Obama (low info voters and Americans love winners) and, just as bad, a defection by Roberts that reminds conservatives of Bush Minor (and team Romney and the GOP leadership is stuffed to the gills with Bush Minor era politicians).

      Could the right be more motivated against Obama than they already are? I’m doubtful. The lefts’ reaction is gonna be a tepid “good for you O” I’d say no up or down for him there (but avoiding the collective fit they’d have thrown if it’d been struck down in toto is a big plus for O). The low info middle’s reaction likely will be a small plus for Obama “we like winners”. So by my tally this is a modest win for Obama politically.Report

      • Avatar Jaybird in reply to North says:

        It seems that this takes the PPACA off of the table as something worth discussing for either Obama or Romney… I mean, Obama can’t say “PPACA passed and survived Constitutional muster because it’s a tax!” and, for whatever reason, the PPACA doesn’t poll very well. Romney can’t attack Obama on it because of obvious reasons (he did the same damn thing being first and foremost among them).

        I’d say it’s a wash pretty much as the PPACA is now here to stay… sure, it’s a win for Obama, but it’s a win that goes back to 2010 (that was quickly followed by the 2010 elections).

        If anything this *MIGHT* turn into an argument over who we want picking justices to replace the conservative dinosaurs on the bench… and while it’s not like Romney can argue that “we need more justices like Roberts!”, it’s certainly not like Obama can argue that without more liberal justices, PEOPLE WILL DIE and so we need him replacing the dinos.

        Because of this ruling, we’ll stop talking about the PPACA by August. It’s the furniture now.Report

    • Avatar Mike Schilling in reply to Jaybird says:

      Romney will have to raise even more money now, so it increases Roberts’s share of the Citizens United rakeoff.Report

    • Avatar BlaiseP in reply to Jaybird says:

      Eleven dimensional chess anyone? This is a stunning defeat for the States’ Rights crowd, a black eye they will be sporting for years to come. Obomneycare passed Constitutional muster. When Individual Mandate was a Republican issue and the Liberals were arguing for Single Payer, they rallied around that flag with a vengeance. Poetic justice to the dispassionate observer.

      My g/f the Tea Partier is deeply angry over this decision. I’m no fan of PPACA for reasons I’ve laid out elsewhere. I want Single Gateway, connecting patients to health care directly. I’ve seen the abuses of the current health insurance system and implemented many of its more onerous provisions, petty whore that I am. Congress could fix this but they won’t, because they’re all in thrall to the campaign donations made by the very firms which now screw everyone, especially the health care providers.Report

      • Avatar North in reply to BlaiseP says:

        I’m with you there BP, there is definitly a karmic sort of cruel ironic justice to this. The right did wield the Mandate as a stake to kill HCR under Clinton. Now the the very thing they falsely offered has been passed into law under a new Dem President they hate even more than Clinton.Report

      • Avatar DensityDuck in reply to BlaiseP says:

        “Obomneycare passed Constitutional muster.”

        Well, yes, once the Supreme Court threw out the commerce clause argument and went with a power-to-tax argument, it got a lot more Constitutional. Unfortunately we’d been told all along that the mandate A: wasn’t a tax and B: was Constitutional under the commerce clause.Report

        • Avatar James Hanley in reply to DensityDuck says:

          This. 1,000 times this.Report

        • Avatar North in reply to DensityDuck says:

          This just in, politicians played politics with definitions of specific terms on legislation; Justices call spades spades; dog bites man. Weather at eleven.Report

          • Avatar Annelid Gustator in reply to North says:

            Yeah, I’m wondering what exactly *would* surprise DD and Hanley.Report

            • Avatar James Hanley in reply to Annelid Gustator says:

              I’m not sure what you mean; Roberts did surprise me here.

              As for Duck, I don’t know what surprises him, but I don’t think surprise was what he was expressing here. Sounded more like wry amusement that even though they won the big prize, what defenders of PPACA’s constitutionality were arguing all along was rebutted.Report

          • Avatar James Hanley in reply to North says:

            Not quite that simple. The doesn’t always go to the effort of trying to find a justification for the law that isn’t given by the government. They really don’t generally do that when the government has specifically refused to use that justification. And as much as the mandate operates in a matter quite similar to a tax/rebate scheme, it is technically different. It would have been much easier for Roberts to say, “sorry, you did it the wrong way,” than to say, “well, if you squinch your eyes, stand on your left foot and put your finger to your nose, it looks just like a tax, so we’ll go ahead and call it a tax even though the government is telling us it isn’t a tax.”

            This is especially true if we assume that Roberts was not terribly well-disposed to the mandate. He could so very easily have said, “nope, unconstitutional under the Commerce Clause.” There is absolutely no way he would have felt compelled to this conclusion. He had to have consciously chosen this conclusion as a preference, not any kind of necessary outcome.

            I haven’t had time to read the opinion yet, but if this reporting is accurate, it’s fairly unusual.Report

          • Avatar Scott in reply to North says:


            I thought Dems didn’t lie or play bait and switch? You mean they are just as dishonest as Repubs?Report

            • Avatar North in reply to Scott says:

              I have ~never~ claimed the Dems didn’t lie or play politics and never will. They’re politicians so they’re fundamentally dishonest at heart. Now as to whether they’re as dishonest as Republicans? I’m inclined to thing they’re not. I mean the entire HCR mess has been one giant outcome of the republicans flat out lying in ’94 and claiming they wanted something like PPACA when in fact they were saying so only to try and kill a single payer proposal.Report

              • Avatar M.A. in reply to North says:

                Now as to whether they’re as dishonest as Republicans? I’m inclined to thing they’re not.

                The things that come to my mind:

                Despite the moans and wailing and self-flagellation on the right wing about “lame stream media” and “liberal media”, the right-wing media empire is VAST and makes not even the pretense of fairness or of objectivity, or for that matter of fact-checking. That’s a huge mark against the conservative side in terms of honesty questions.

                We can go round and round about politicians saying one thing, then the other. On Fox News Sunday (June 25) Darrell Issa let everyone know he had absolutely no evidence of anything in F&F; by Monday he’d returned to the talking point line of accusing Obama of being involved directly.

                Memories like goldfish, I swear…Report

              • Avatar wardsmith in reply to M.A. says:

                You might not want to go there MA. Issa said he didn’t have “EVIDENCE” as what is allowable in a court of law, but he certainly has “PROBABLE CAUSE” to search for that evidence, hence the president invoking “executive privilege”. The fact of the matter is F&F was an OCDETF operation from the get go.

                And before you speciously claim AGAIN that F&F is exactly the same as Wide Receiver, let’s just recap the differences shall we?

                Wide Receiver installed GPS tracking devices in guns. WR “allowed” those guns (about 400) to be purchased by known or suspected bad guys to be taken south of the border. The Mexican government was INVOLVED FROM THE BEGINNING. The cartels removed the GPS chips, therefore the entire operation was CANCELLED.

                Fast and Furious did NOT involve Mexican government, did NOT include any kind of tracking chips (the supposition was that cartel members who were smart enough to find and deactivate hidden GPS chips were too stupid to find and remove obvious serial numbers). F&F had a different agenda entirely (because the guns were legally purchased using “mules” the probable intent was to do an end run around gun purchase laws, esp concerning assault weapons bans). Issa is right that he doesn’t currently have “Evidence” because that evidence is contained in records the Justice Department refuses to release. Once those records ARE released, Issa will have his evidence. Obama prays that A) he gets reelected and B) somehow gains a Democratic majority in the House so this investigation can be squashed.

                But you are correct that the American voters have memories like goldfish, or worse.Report

              • Avatar Scott in reply to M.A. says:

                That is why you have an investigation, to develop facts but Holder has been stonewalling for over a year. Then when Holder’s attempts to get Issa to beg off fail, he calls in Barry to swoop in to use his exec priv to save him. This could have been done in a monthReport

              • Avatar Stillwater in reply to Scott says:

                One argument I’ve heard (here at the League, I think) is that there may be undercover operatives in Mexican cartels who’s identities would be compromised by an investigation into FF. That might be part of the reluctance to turn over evidence, but it seems to me if that were the case, back-channels would be used to quash Issa’s zeal. Short of that (and given the history of how this has developed it seems unlikely), Holder’s got some splainin to do.Report

              • Avatar Tom Van Dyke in reply to Stillwater says:

                Exactly, Mr. Still. Protecting the Mexican operatives is ExecPriv to a T, and backchannels would get any principled interrogator to back off.

                Even if Issa were unprincipled, he could never survive the backlash when the truth eventually came out.Report

      • Avatar Brandon Berg in reply to BlaiseP says:

        Obomneycare passed Constitutional muster.

        Not really. It oversteps Congress’s Article I, Section 8 bounds left and right. It’s just that all the other ways it overreaches have been getting rubber-stamped by the Supreme Court for several decades now.Report

        • Avatar Morat20 in reply to Brandon Berg says:

          I think after 80 years of SCOTUS decisions on the New Deal, on modern economic and regulatory regimes, saying “it’s overstetping it’s bounds left and right” is just plain wrong.

          8 decades — which included at least one giant political realignment — and all that’s been done is some tinkering on the edges.

          After that much time, you’re far better off trying to amend the Constitution to make it be explicitly what you want then stubbornly claiming the last 4 generations of Supreme Court decisions were blatantly wrong.Report

        • Avatar BlaiseP in reply to Brandon Berg says:

          Please. There’s also Section 9 to consider, which was cited in the decision. You know, that bit about General Welfare, which I pointed out yesterday. Here’s the meat of the decision:

          By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.(11)

          The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.


          JUSTICE GINSBURG questions the necessity of rejecting the Government’s commerce power argument, given that §5000A can be upheld under the taxing power. Post, at 37. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving

          The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command.
          The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read
          as a tax.
          11 Of course, individuals do not have a lawful choice not to pay a tax due, and may sometimes face prosecution for failing to do so (although not for declining to make the shared responsibility payment, see 26 U. S. C. §5000A(g)(2)). But that does not show that the tax restricts the lawful choice whether to undertake or forgo the activity on which the tax is predicated. Those subject to the individual mandate may lawfully
          forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax.

          • Avatar James Hanley in reply to BlaiseP says:

            Section 9 is limits on Congress. It doesn’t give Congress any powers.Report

            • Avatar BlaiseP in reply to James Hanley says:

              Sure it does. It’s just been a long time since we had a mandate to purchase anything, addressed in Section 9 by Capitation.

              No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

              A capitation is not a tax. It’s a fee exacted for being a citizen. Notice how that reads, capitation or tax.Report

  8. Avatar DBrown says:

    Whether a strike down would have helped the demo-rats over the thugs, misses the point. If it was struck down, there was a very real danger of millions of people in need who the law currently helps, would have been thrown to the wolves. That is what matters – the thugs can scream and the demo-rats can still cry about only half a glass and no single payer but millions (and many thousands of lives saved) will benifit for now.Report

  9. Avatar DensityDuck says:

    I look forward to hearing a lot of “commerce clause wha-huh? This was always justified by Congress’s power to tax sources of income!” as though nobody had ever argued anything different.Report

    • Avatar Ryan Noonan in reply to DensityDuck says:

      Ironically enough, I think the Commerce Clause has a lot more power to restrict the state than the Taxing and Spending Clause. Of course, given Raich is still precedent, this is probably a distinction without a difference.Report

    • Avatar Michelle in reply to DensityDuck says:

      It wouldn’t be the first time that history was rewritten by political expediency. Just ask the folks at Fox News.Report

    • Avatar clawback in reply to DensityDuck says:

      The tax angle was put forward by the government side as an “alternative argument,” so I don’t know who was doing the justifying in your passive voice construction, but it wasn’t the government’s legal team.Report

  10. I’m going through the dissent right now, but it seems the key basis for them claiming this wasn’t a valid exercise of Congress’ taxing authority is that they do not think it’s a tax. The primary reason they don’t think it’s a tax? Because the legislation uses the word “penalty,” which of course it does because the Democrats thought (without any real basis, IMHO) that it would be meaningfully more politically palatable to deny that it’s a tax. If the legislation uses the word “tax,” it winds up 8-1 or 9-0 in favor of the mandate on these grounds; but because it uses the word “penalty,” the only thing saving the mandate was Roberts’ willingness to give the Administration every benefit of the doubt and engage in some pretty significant linguistic gymnastics (correctly, IMHO, but it’s not too difficult to see how he could have reached the opposite conclusion in good faith).

    So, yeah, this is me taking credit for calling this thing almost exactly right on December 16, 2009:

    I’ve said it before, I’ll say it again: this Administration has a bad tendency to unnecessarily undermine critical legal positions for the sake of minimal, short-term political expediency.Report

    • Avatar North in reply to Mark Thompson says:

      Kudos to you Mark, help yourself to a victory lap around the League. I remember reading your post and finding little to object to so I didn’t comment. Wish I had; I could have looked prescient by association.Report

    • Avatar Stillwater in reply to Mark Thompson says:

      What’s interesting about all this penalty/tax talk is that when the case went before the court, and the Admin. was agreeing with the opposition that the mandate didn’t constitute a tax, I was as confuzzled as could be. In fact, I’m still so confused about that move. Is this how the Admin has viewed the mandate from the begininnig? Was this type of patently incorrect thinking a hold-over of the Republican justifications for a mandate back when supported it (that the GOP is hamstrung politically when it comes to advocating any new taxes)? Is it that they misunderstood their own bill?

      From the very beginning, the people I read – and trusted – when it came to the constitutionality of the PPACA (the folks at Balkinization) thought the mandate functioned as a tax, and was justified under the taxing powers of Congress. (I even made a comment about a year ago saying that Roberts would side with that argument , so the final decision would be 6-3). Now, it appears that Roberts had to make that argument for the Administration.

      I think you’re right that it looks like a case of putting political expediency in front of careful legal reasoning. It does appear to look sloppy. But I still have a hard time believing that the Admin actually did try to sell the mandate as anything other than a tax. That is, even tho the word “penalty” is used in the Act, I don’t recall anyone making a political argument based on that understanding of the provision.

      Am I wrong about that?Report

      • Avatar Burt Likko in reply to Stillwater says:

        I was confused when the White House and its proxies insisted it wasn’t a tax. Seemed obvious to me that it was, labels notwithstanding. I suppose they feared the standard GOP criticism of “tax and spend” but so what? People susceptible to tjat argument were almost certainly never going to support PPACA anyway.Report

        • Avatar Stillwater in reply to Burt Likko says:

          People susceptible to tjat argument were almost certainly never going to support PPACA anyway.

          Exactly. And for the fence sitters, the subtle distinction between the legal distinction between a tax and a penalty a) would viewed as completely irrelevant wrt the provisions practical effect and b) could only be justified if the Admin and Dems actually made the distinction into a political issue with some bite. Which they didn’t. So: ????? Wtf?

          Why weaken your own legal case for political expediency when you don’t follow up with any political expediting?Report

        • Avatar M.A. in reply to Burt Likko says:

          “Taxes are the gummints sticking a gun in yer back an’ stealin from yer wallet! *hiccup, swig from a moonshine jug*”Report

        • Avatar Michael Drew in reply to Burt Likko says:

          I suppose they feared the standard GOP criticism of “tax and spend” but so what?

          GOP criticism was not what they feared; they knew they were in for that.

          What they feared (or, had to avoid for any of this to even matter) were fleeing sheeplike Democratic Senators and no health care reform.

          It was a good trade then, and remains a good trade. Even if SOCTUS strikes it down because of things said in public discussion about the reform, or because they found that what functioned exactly like a tax was not legally worded correctly in order to be a tax for the purpose of the Constitution, that’s on SCOTUS, and the administration still avoids the outcome in which they try for health are reform and fail because of defections in their own party.

          Good trade. Then and now.Report

      • Take a look at the first link in the post I wrote in 2009.Report

        • Avatar Stillwater in reply to Mark Thompson says:

          Well, that interview pretty much captures Obama’s thoughts on it. I think the rationale is sound – the purpose of the mandate is to prevent free-riding. But the penalty – in the form of collections by the IRS – is clearly different than penalties to prevent free riding by automobile drivers. It’s clearly a tax!Report

      • Avatar Will Truman in reply to Stillwater says:

        If I recall, the “it’s not a tax” was in response to Republican accusations that he’d lied about “no tax increases for anyone making less than $250k a year.” It was an argument that was made, though, on a political level.Report

        • Avatar Stillwater in reply to Will Truman says:

          That makes some sense, a little anyway, in explaining Obama’s inflexible denial of the obvious. I think he was trying to split hairs here: the rationale of the mandate was to prevent free-riders, and that can only be accomplished by imposing some type of penalty. But the hair don’t wanna split along those lines, since the penalty imposed takes the form of a tax.

          Kudos to Mark for picking up on this craziness waybacklongago. I seem to recall reading the transcript from the GS interview with Obama back then, and I understood him as making a conceptual point about the justification of the tax (that it’s a penalty to prevent free-riding), rather than that he was denying that it is a tax. So I was as confused as anyone about what he was saying there. Hell, even GS couldn’t figure out what the hell Obama was talking about.Report

    • Avatar Koz in reply to Mark Thompson says:

      “I’m going through the dissent right now, but it seems the key basis for them claiming this wasn’t a valid exercise of Congress’ taxing authority is that they do not think it’s a tax.”

      Well Mark, you and I agree on the legal issues surrounding PPACA more than most things but if I were you I’d hold off on that victory lap.

      Given that your preferred tax argument went oh-for-life in the lower courts I think it’s more likely that Roberts got cowed, or was in some other way motivated to manufacture a way to uphold the law.Report

      • Avatar Mark Thompson in reply to Koz says:

        The thing is that the reason it went oh-for-life in the lower courts was exactly the reason it almost failed in the SCOTUS, and indeed the reason I was critical about the politically-motivated use of the word “penalty” and denial that it was a tax.Report

        • Avatar Koz in reply to Mark Thompson says:

          Ok, but then the reason it went oh-for-life in the lower courts is the same reason it should have lost at SCOTUS.

          And let’s also note, that whatever vindication you claim for your legal theores is balanced by the discredit suffered to your political theories. That is, bearing in mind today’s decision in particular, the only way to stand for freedom in America and have some expectation to carry the day is to vote Republican and politically associate with the mainstream Right. Barnett et al lawyered this case about as well as it could be done, but when push came to shove you sold out the cause of liberty in America to a point beyond repair.Report

          • Avatar Ryan Noonan in reply to Koz says:

            The only way to stand for freedom in America is to vote for the party that would amend the Constitution to prohibit gay people from getting married!Report

          • Avatar Patrick Cahalan in reply to Koz says:

            > The only way to stand for freedom in America
            > and have some expectation to carry the day is
            > to vote Republican and politically associate
            > with the mainstream Right.

            Koz, it never ceases to amuse me how little you pay attention to the mainstream Right’s record on civil liberties.Report

            • He’s Bruce Willis in The Sixth Sense. He doesn’t *SEE* it.Report

              • Avatar Koz in reply to Jaybird says:

                Oh bullshit. One reason I have been exasperated with your bland assertions of my inability to perceive the consequences of whatever happened between 2002 and 2006 is that some of us saw it plainly well enough _in_ 2006, as I’ve pointed out to you before.


              • Avatar Jaybird in reply to Koz says:

                Also your inability to see that one of the consequences involves reading sentences such as “That is, bearing in mind today’s decision in particular, the only way to stand for freedom in America and have some expectation to carry the day is to vote Republican and politically associate with the mainstream Right.” in the light of 2002-2006.

                It makes no sense to you that someone might look at 2002-2006 and say “This is what Republicans are like when they have power.” None. They’re forever Republicans in opposition in your vision… and never Republicans being opposed.Report

              • Avatar Koz in reply to Jaybird says:

                Not at all. The GOP has many faults but at no point in our adult lifetimes would the GOP have done something like PPACA. Not before 2006, not during, not after.

                The GOP represents the American people and accept the constraints they place on us. The other team doesn’t. The end.Report

              • Avatar Patrick Cahalan in reply to Koz says:

                I have to be honest, Koz, I think PPACA is not a good solution to a problem, but I’d much rather be encouraged to buy health insurance than to have the NSA filtering through all the packets on the Internet. Or have extraordinary rendition. Or have Gitmo. Or passing DOMA. Or any number of a long laundry list of things that have wide support among the GOP base.

                On the scale of “infringements of my liberty”, PPACA is pretty low on my outrage meter, even if it’s decently up on the scale on my, “this is bad collusion between corporate America and the government” meter.Report

              • Avatar BlaiseP in reply to Koz says:

                They did. What do you call Medicare Part D? Or Romneycare? Or the GOP’s counter-offers on Clinton’s HCR? Or the perennial Doc Fix?

                The GOP will never prosper while it refuses to acknowledge the facts of the past.Report

              • Avatar Koz in reply to Koz says:

                In that case get the American people to make a big deal out of whatever you want and then you don’t have to worry about the GOP. But that only lasts as long as the people are operationally sovereign, which won’t be too much longer if the libs get their way. We’ve been over this before, Pat.


              • Avatar Kimmi in reply to Koz says:

                Bailing out the banksters doesn’t count?
                The president lying to wall street and main street, repeatedly, about the state of the economy doesn’t count?
                (okay, maybe you think he really was that stupid).Report

              • Avatar Koz in reply to Koz says:

                “What do you call Medicare Part D? Or Romneycare? Or the GOP’s counter-offers on Clinton’s HCR? Or the perennial Doc Fix?”

                Either the GOP acquiesced to where the people wanted to go, or the people acquiesced to where the GOP wanted to go.

                I don’t know why this is supposed to be so difficult. It seems pretty simple to me.Report

              • Avatar BlaiseP in reply to Koz says:

                We may always count on you, Koz, for some capacious inanity.

                In point of fact, the GOP have done something like PPACA. They did it in Massachusetts under Romney, they did it with Medicare Part D. I remember Dole talking about just this sort of program years ago.

                Just what the hell is the GOP’s problem? Here they’ve gotten a market-based solution, everyone has to purchase their own health care. According to their own prophets, the market should be springing into action supplying all this fresh demand.

                So what do we get? A cabal of goddamn GOP mullahs like so many starlings on a telephone wire, issuing fataawaa against the proposals of their own people. Allah moves in most mysterious ways, his justice is inscrutable. But on this you may rely, Koz, the gods answer the prayers of the stupid. Now we have exactly what the GOP has been preaching for all these years. If you do not like it so well, you have none to blame but your own.Report

              • Avatar James Hanley in reply to Koz says:

                What Pat C. said, precisely. But on the destruction of liberties scale, it’s far below warrantless wiretapping, the state secrets privilege, and just about anything related to the war on drugs. In fact the number of people who are likely to experience an adverse effect on their liberty is probably miniscule compared to the number of people who are deprived of their liberty by ant-SSM laws.Report

              • Avatar Koz in reply to Koz says:

                Take it up with the American people. We answer to them.

                “I can explain to this to you, but I can’t comprehend it for you.”Report

              • Avatar BlaiseP in reply to Koz says:

                Then let us have less of this outright denial of the obvious, Koz: at several points in our adult lifetimes the GOP has done something like PPACA. The GOP has many faults but its chief failing is its faulty memory. Comprehension relies on memory and if I cannot make you include the undeniable facts from the past, I will at least mention them to you.Report

              • Avatar Koz in reply to Koz says:

                Blaise, never before to my knowledge has the GOP (or either party, really) pushed through anything as significant as PPACA over the opposition of a definitive majority of the citizens, a large number of whom _specifically organized and mobilized_ in opposition to it.

                You can bulldoze the silent majority if they are apathetic. If you can bulldoze the vocal majority we are in real trouble.Report

              • Avatar BlaiseP in reply to Koz says:

                I would only repeat myself in enumerating the enemies of PPACA, chief among them the insurance industry, whose representative, Karen Ignagni, told Obama to his face she’d run a billion dollars worth of attack ads if he dared to use the phrase Single Payer.

                Obama flinched. PPACA is nothing but a huge gimme for the health insurance industry.

                Let’s face facts here, PPACA conforms to Bismarck’s Sausage Factory, where anyone who loves either laws or sausage should have a strong stomach before entering the premises. It is nothing but a recapitulation of Romney’s legislation in the Commonwealth of Massachusetts, just as Bush’s Education Bill was nothing but ol’ Teddy Kennedy’s education bill — with the funding provisions stripped out of it.

                Romneycare had no substantive opposition. That opposition was muzzled by the same players who silenced Obama’s single payer provisions. Here is a case where a regulated industry can simply push government around, not that the GOP ever minded that sort of sum of vectors in government. The GOP are nothing but a gaggle of prostitutes, swearing fealty to their pimps.Report

              • Avatar Koz in reply to Koz says:

                Right, I didn’t get around to you in other thread. If the train of thought you supported there carried the day back in April 2009-March 2010, we wouldn’t be where we are today, and specifically we wouldn’t have the particular problem I’m talking about here.

                But let’s also note that, without getting too specific, with very few exceptions the libs in Congress who opposed PPACA on this or that ground ended up getting roped into it anyway. Among others, I’m pretty sure Kucininch was one of them.Report

              • Avatar Jaybird in reply to Koz says:

                The GOP has many faults but at no point in our adult lifetimes would the GOP have done something like PPACA.

                This stuff is why I sometimes suspect he’s not real.

                Surely he remembers Bob Dole in the 90’s and the GOP’s opposition to Hillarycare. He’s having us on.Report

              • Avatar Koz in reply to Koz says:

                “Blaise, never before to my knowledge has the GOP (or either party, really) pushed through anything as significant as PPACA over the opposition of a definitive majority of the citizens, a large number of whom _specifically organized and mobilized_ in opposition to it.”

                Jay, are you even reading? I am struggling (and failing) to find simpler ways to write something that’s really not that difficult.

                “I can explain this to you, but I can’t comprehend it for you.”Report

              • Avatar Jaybird in reply to Koz says:

                Yeah, your second statement clarified the holy crap out of the first.

                The first, though? The one where you said, ahem:

                The GOP has many faults but at no point in our adult lifetimes would the GOP have done something like PPACA. Not before 2006, not during, not after.

                You’ve gotta admit, it certainly seems like something that a left-leaning guy who really wanted to screw with people would type.Report

              • Avatar Koz in reply to Koz says:

                Ok Jay, whatever. I only wrote the same thing for like ten straight comments before the lightbulb finally flipped on for you. Maybe if you read a little closer, you could avoid some of your usual tropes.Report

              • Avatar Jeff in reply to Koz says:

                My Goodness, I didn’t think anyone could pass TVD in GOP-blindness. Over 4,000 Americans and who knows how many Iraqis dead from an illegal war, but those Republicans, they are FREEDOM!


          • Avatar Mark Thompson in reply to Koz says:

            I’m so totally not going to have this argument again.Report

      • Avatar Kimmi in reply to Koz says:

        who blackmails the supreme court?? much easier to just buy their houses if you wanna cause trouble.Report

        • Avatar Koz in reply to Patrick Cahalan says:

          Well, I for one don’t think Roberts is a good guy here. Oddly enough, Kennedy got this one right in oral arguments. Ie, if the mandate is “special” because it’s health care, or in reality because of deference to Congress and the lib-legal Establishment, next time it’ll be something else.

          With the benefit of hindsight, especially Stenberg and the source material for _The Brethren_, today’s decision is strongly resonant with the political and institutional prerogatives of the Court. Unfortunately for Roberts, he got caught trying to be a little too cute.Report

    • Avatar M.A. in reply to Mark Thompson says:

      I’ll ask this as simply as possible:

      What is a penalty assessed on your tax forms, if not a tax?Report

      • Avatar DensityDuck in reply to M.A. says:

        It’s not a tax for the same reason that it’s improper to call a carpool-lane violation ticket a “Driving In The Wrong Lane Tax”.Report

        • Avatar Mike Schilling in reply to DensityDuck says:

          What if single-occupant cars were allowed to drive in the carpool lane for $20/day? More a fee than a tax, but it’s the government levying a fee to encourage behavior. (And, sure, you have alternatives, but not if you want to get work in less than an hour.)Report

          • Avatar Burt Likko in reply to Mike Schilling says:

            You could say that exists already just at a higher rate, randomly and inconvieniently enforced. You can drive in carpool lanes all you like as long as you’re willing to pay the tickets.Report

            • Avatar Mike Schilling in reply to Burt Likko says:

              True, but if we consider Jason’s criterion of intent,. the two are quite different. Also, if a carpool violation is considered a moving violation, after a certain number they take your licence away.Report

          • Avatar DensityDuck in reply to Mike Schilling says:

            “What if single-occupant cars were allowed to drive in the carpool lane for $20/day?”

            Which, in many places, is exactly what’s happening. And…

            “[I]f a carpool violation is considered a moving violation…”

            I think that, in most places, it isn’t. And this makes sense. Because if it’s a moving violation then it’ll bump up the offender’s insurance rates, so they’ll fight it in court. If it’s only a fine, then they’re more likely to just pay it and avoid the hassle.Report

        • Avatar Burt Likko in reply to DensityDuck says:

          A tax penalty isn’t a punishment for breaking a law because there is no due process provided before you are liable for it. If I get a traffic ticket, then I have to be arraigned and I get a trial before I am liable to pay the fine.Report

  11. Avatar Burt Likko says:

    As a matter of pure amusement I’ll be interested to see if this post, about the biggest constitutional case of the year and a decision point in the largest policy issue of the past three years, will get more comments than the post about circumcision.Report

  12. Avatar Tim Kowal says:

    Oh how, how am I supposed to get any work done today?

    I will allow myself to get some things off my chest and then try to forget about the opinion for the rest of the work day.

    A tax? Roberts upheld it as a tax? That was the lamest of the arguments. It was in fact only the second backup argument advanced by the Administration. Roberts only devotes about a page to explaining why it’s not unconstitutional as a direct tax. And it’s pretty obviously not an income or excise tax. So, what kind of tax is it?

    Also, it’s NOT a tax for purposes of the Tax Anti-Injunction Act. Again, from reports I’ve read of the opinion (not the opinion itself, yet), the analysis on this is pretty thin. So again, what kind of tax is it?

    A magic tax, apparently. Kind of how the California Supreme Court treats pensions as a different kind of contract so as to evade the state constitution’s prohibitions on gifts, retroactive benefits, and taxes beyond the fiscal year, but never gives reasons therefor. It’s a magic contract.

    This is why I’m led to the conclusion that this is a political decision: I was not convinced before today of complaints that the Court was improperly influenced by politics, but I am now so convinced after reading parts of Chief Justice Robert’s opinion and reports of same. Joining the other conservatives in striking down the law would have been much easier for him to square with this constitutional philosophy. But I think Lawrence Tribe basically got him right yesterday: Roberts was worried about how a decision invalidating the law altogether would reflect on the Court in the eyes of the American people, regardless of the merits of the decision. In my view, unless there was a real existential threat to the Court, the decision is lamentable if this is the reason for upholding the ACA as a “tax.”

    That said, I also wonder at the political effect of calling this a tax. NPR mentioned that the “tax” (about $200) is only about a tenth of the cost of a basic health plan for young people (about $2,000), the demographic the “tax” is aimed at. And yet Fox News mentioned that the “tax” is already the biggest tax hike in history. It will be interesting to see how this plays out if indeed the “tax” is insufficient to get young healthy people to buy insurance, which the ACA absolutely depends on to make its other provisions work.

    I’m also relieved at the limitations on the Medicaid mandates on the states. It’s not as easy to get political support to push back on states rights issues, so it is important that the Court respected that limit on federal power.

    I’m also relieved that the Commerce Clause has been limited, for now. I enjoyed Justice Thomas’s two-page dissent, basically saying: When you have mushy Commerce Clause jurisprudence, you can’t be surprised when lawmakers can think they can do anything they want. The message is clear now. They can’t. Not unless they come right out and call it a “tax.”

    So in a roundabout way, the Court responded to complaints about being overly political by becoming more political: They punted the constitutional issue back to the people, and at the same time gave opponents of the ACA a powerful rhetorical device for the November election by calling the mandate a “tax” — a substantial and regressive one at that.Report

    • Avatar Stillwater in reply to Tim Kowal says:

      And it’s pretty obviously not an income or excise tax.

      Why is it obviously not an excise tax? If medical providers are obligated by law to provide healthcare to everyone independently of proof of insurance or ability to pay, then why can’t it be justified as an excise tax on the privilege of receiving medical care in times of need?Report

      • Avatar Tim Kowal in reply to Stillwater says:

        If it were a tax on receiving those services, it would work. But those paying the tax are doing so specifically because they are not buying the services. If there is no transaction, there is nothing to tax. This takes us back to the position originally (and logically) taken by the Administration in the first event: it’s a penalty, not a tax.Report

        • Avatar Snarky McSnarkSnark in reply to Tim Kowal says:

          Would you be satisfied if it were universally assessed as a “health care tax,” and waived for those that have insurance?Report

        • Avatar Burt Likko in reply to Tim Kowal says:

          I think this confuses the nature of the taxed service of insurance. Extension of coverage does not equal delivery of benefit.Report

        • Avatar Tim Kowal in reply to Tim Kowal says:

          …nothing to tax as an excise tax, to be more clear.Report

        • Avatar Stillwater in reply to Tim Kowal says:

          That’s where the argument that healthcare provision isn’t like other markets. You can’t tax at the point of the transaction because the transaction – in this case, providing medical services – is required to be performed independently of the ability to pay. The transaction, therefore, isn’t a typical exchange of goods and services for money, so no collection mechanism can be built into it.

          I mean, I’m not denying the principled point you’re making here. But that point only holds up, it seems to me, if the healthcare is relevantly similar to other markets and transaction-types under which that principle normally applies.Report

          • Avatar Tim Kowal in reply to Stillwater says:

            I understand your point. But I think all this underscores why the tax argument was only the second backup argument made by the Administration. The Commerce Clause or N&P Clause would have worked if they extend this far. Conceptually, the tax argument doesn’t seem to work without a lot more explanation than the Chief Justice’s opinion apparently provided.Report

            • Tim: It may help to think of it this, though I confess this is not technically how the mandate is structured (the effect, however, is identical), and I don’t think it’s quite Roberts’ argument here:

              I think you would agree that, Constitutionally, the government has the power to impose a blanket tax on all citizens.

              I think you would also agree that the government, Constitutionally, has the authority to provide tax credits in order to incentivize particular behavior, even where that behavior is the purchase of private goods and services from privately-owned entities.

              In effect (albeit admittedly not word), the mandate imposes a tax of $x on all taxpayers, with a credit for the full amount of the tax for anyone with a qualifying insurance plan.Report

              • Mark,

                You may be right. In fact, Roberts’ opinion says: “Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote, for example, purchasing homes and professional educations. See 26 U. S. C. §§ 163(h), 25A. Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.”

                However, he is careful to mention the limits of the taxing power. That is, the taxing power can be used only as an incentive, not as a punishment. Quoting from an earlier case, Roberts observes “there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.”

                Where I can see future litigation arising is where Roberts says: “Because the tax at hand is within even those strict limits, we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it.” As I mentioned above, the tax presently is only about one-tenth of the cost of a basic insurance plan. If it turns out this is not enough incentive to buy such a plan, Congress may be put to the choice of increasing the tax, or else letting the health program bleed red ink by tens or even hundreds of billions. And if Congress increases the tax, challengers may revisit the question of whether the tax has now crossed the threshold to become an impermissible penalty.Report

              • Tim: I think your assessment here is exactly correct.Report

              • One other thing worth mentioning by the way, is that this is neither an expansion nor a limitation of existing taxing power law – the penalty vs. tax standard, and the manner of distinguishing between the two, is reasonably (emphasis on reasonably) well-settled. The trouble here comes that the law idiotically goes so far as to expressly call what otherwise clearly operates as a “tax” a “penalty.” No law has ever been so poorly drafted as to use the very word that’s supposed to be impermissible as a stand-in for the very word that’s expressly permissible.Report

              • Avatar Stillwater in reply to Mark Thompson says:

                It’s puzzling to me that they could have gotten things that wrong. I mean, all they had to do was call Marty Lederman or Balkin himself to get it right. How long does that take?Report

              • Avatar Stillwater in reply to Mark Thompson says:

                Altho, the fact that the bill was written by the insurance lobby might lead to some interesting conspiracy theories about it…Report

              • Avatar Will Truman in reply to Tim Kowal says:

                This touches on my single reservation about the taxation argument (a reservation insufficient to put my views on its constitutionality into question: We obviously can’t apply a $1,000,000 tax on abortions. In this case, though, the tax is sufficiently light that it brings up more questions of not being sufficient to the task than it does of being excessively burdensome. That’s a statutory, rather than constitutional observation, though.Report

              • Avatar DensityDuck in reply to Will Truman says:

                “We obviously can’t apply a $1,000,000 tax on abortions.”

                Although we have no trouble with the notion of applying punitively-high taxes to things with the intent of discouraging those things, as any smoker will tell you.Report

  13. Avatar Marchmaine says:

    Great… now we get the heath care we deserve, not the health care we need.Report

  14. Avatar Brandon Berg says:

    It seems to me that the weakness of the taxation argument for upholding this law is exactly the same as the weakness of the commerce clause argument: It gives Congress carte-blanche power to do anything it wants, as long as it creates a pretextual tax for window dressing. Why acknowledge limits on the commerce clause, only to render them utterly moot?Report

    • Avatar Brandon Berg in reply to Brandon Berg says:

      Also, it’s interesting that they pushed the Stolen Valor Act back to Congress even though it could be theoretically rewritten to be constitutional, yet rather than doing the same with Obamacare, they did the rewriting themselves.Report

    • Avatar Stillwater in reply to Brandon Berg says:

      FWIW, I thought that too. One of Mark’s comments makes it pretty clear that Robert’s was arguing that the mandate is justified by the already-existing taxing powers of congress (if it’s viewed as a tax). It doesn’t extend or change those powers in any way.


      • Avatar Brandon Berg in reply to Stillwater says:

        Right, but the point is that it was explicitly sold as not being a tax. For the administration to get it past the public by claiming it isn’t a tax and then to get it past the courts by claiming it is is extremely sleazy. The court should have sent it back to Congress to rewrite it to make it Constitutional, just as they did with the Stolen Valor Act, rather than accept the rewrite as implicit.Report

        • Avatar BlaiseP in reply to Brandon Berg says:

          So buy health insurance. Is that a tax? No it’s not.Report

        • Avatar Mike Schilling in reply to Brandon Berg says:

          Not really parallel situations. Fixing Stolen Valor will require changing the text of the law in some as yet unknown fashion; this merely required describing the law differently.Report

        • Avatar Stillwater in reply to Brandon Berg says:

          For the administration to get it past the public by claiming it isn’t a tax and then to get it past the courts by claiming it is is extremely sleazy.

          I think the public always believed it was a tax. (I mean, it’s obviously a tax!) And the administration didn’t get it past the courts by claiming it wasn’t a tax. They got busted hard on that. Roberts voted to sustain the bill despite the crappy argument that the mandate wasn’t a tax. The fact that ACA was sustained can’t be pinned on the Obama Admins poor legal reasoning, when by all accounts it would have received even more yea votes if they employed sound legal reasoning.Report

    • Avatar DensityDuck in reply to Brandon Berg says:

      “Why acknowledge limits on the commerce clause, only to render them utterly moot?”

      Because it’s harder to convince people to accept a new tax than it is to convince them to accept a new not-a-tax.Report

  15. Avatar Tim Kowal says:

    Here’s a thought I’ll float out there (as I continue to ignore my previous promise to forget about the decision and get some work done today): I’ve been hearing that the first 40 pages of the decision, about how the Commerce Clause does not go so far as to support the mandate, is very favorable for constitutional conservatives. Hugh Hewitt, for example, was very complimentary of Roberts’ CC and N&P analysis as I listened on my way to a late lunch a few minutes ago. Without having personally read it, I wonder whether that analysis was something Roberts might not have been able to get away with had he not thrown in for upholding the law. In other words, did Roberts buy an opportunity to significantly limit or even roll back Commerce Clause jurisprudence in exchange for his vote to uphold?

    Or is this just cynical and conspiratorial?Report

    • Avatar Stillwater in reply to Tim Kowal says:

      I’m on board with that. Given his arguments, I think it’s reasonable to conclude he was motivated by something to vote the way he did.Report

      • Avatar Tim Kowal in reply to Stillwater says:

        Or, along the lines further above, Roberts was convinced that the tax would have to be increased to properly encourage people to get health plans, at which point the law would then be unconstitutional as a punitive tax, and already unconstitutional under the CC and N&P clauses. So maybe Roberts is incredibly far-sighted about the whole thing. À la Kramer’s plan to ruin a garment merchant by removing all the dessicates:

        ELAINE: Come on, what is taking you so long?

        KRAMER: Elaine, I broke the price-gun, so I had to move to plan B.

        ELAINE: Plan B? There is no plan B.

        KRAMER: (holds up some small white sachets) I took these out of every single
        garment in the store.

        ELAINE: What?!

        KRAMER: They’re dessicates. See, they absorb moisture. (gleeful) These clothes
        won’t last five years without ’em.

        ELAINE: That’s not gonna do anything.

        KRAMER: Patience.Report

    • Avatar BlaiseP in reply to Tim Kowal says:

      Nothing conspiratorial about it. As Justice Roberts starts coming into focus, I’m starting to see a justice who isn’t particularly swayed at oral argument. This guy’s a scholar. He left a few Post-It Notes in that ruling, showing how he’s going to rule on Commerce Clause: he’s going to view both Section 8 and Section 9 of Article 1 as part of a larger whole.

      When I was teaching my son to play chess, I’d never take it easy on him. But when the game was going my way and his little lip would start to quiver, I’d turn the board around and let him play my position. Thus he never lost a game we played … until he started getting really good. Then it was my lip which would quiver.

      That’s what Roberts has done with this case. He’s out-thinking both sides on this case, constantly turning the board around.

      I’m not a lawyer but I love good solid legal writing and though Roberts isn’t as florid as Frankfurter or OWHolmes was, he’s can lay out his positions with competence and clarity. Roberts is obviously embarrassed by Alito and would very gladly stuff him in a mail sack and ship his loquacious and obtuse ass to Mongolia if the law allowed it. He wrote NFIB v. Sebelius as much to preserve the dignity of his own court as anything else.

      Ryan Noonan @89 says it rather better:

      If Roberts were inclined to issue a modest ruling invalidating the mandate, and the dissenters wanted full destruction of the whole law, he would have been stuck between picking and choosing which of the two four-person opinions he liked best or basically doing what he did. For the sake of his legacy and the Court’s legitimacy, it was sort of a no-brainer.Report

    • Avatar Scott in reply to Tim Kowal says:

      No I think Roberts started believing his own BS about how 5-4 partisan votes are bad and is so worried about his legacy and the view of the court that he is willing to flush the Constitution down the toiletReport

      • Avatar Tom Van Dyke in reply to Scott says:

        Well, Scott, I happen to agree with Justice Roberts, the more I think about it. Killing the Obamacare bill would have left a chaos of loose ends, and a 5-4 decision would have made things even uglier partisanwise.

        My own partisan self would rather the bill have been killed—and I think many of those loose ends were the fault of the bill itself, passing it without knowing what’s in it, and handing out healthcare ponies all over—but I’m thinking that Justice Roberts did what’s best for the country here.Report

        • Avatar Tim Kowal in reply to Tom Van Dyke says:

          Tom — I might be coming to that view as well, but if both the partisan and principled parts of me think the law should have been struck down, what word describes the part of me that agrees with what Roberts did here? The words that immediately come to mind aren’t very flattering.Report

          • Avatar Michael Drew in reply to Tim Kowal says:

            The Burkean part?

            It seems odd to think that the Burkean cycle could work as quickly as this, but if you’re agreeing with the reasons Tom gives, it’s basically a species of the Burkean insight that’s at work.Report

            • Avatar Tim Kowal in reply to Michael Drew says:

              It didn’t strike me as Burkean, exactly. What Lawrence Tribe implied was that Roberts needed to uphold the law as some sort of contrition for Bush v. Gore and Citizens United, a fragrant sacrifice to appease an angry segment of the American population who have withdrawn their support from the Court as an institution. And in exchange for Roberts sacrifice, I am suggesting, he gets some mileage in paring back the Commerce Clause.

              If this is indeed what’s happening, it kind of like Rehnquist’s New Federalism, only much sneakier.Report

              • Avatar Tom Van Dyke in reply to Tim Kowal says:

                Roberts needed to uphold the law as some sort of contrition for Bush v. Gore and Citizens United

                My thought exactly, Tim, in my demi-sleep through radio earphones this AM! And not entirely unwarranted esp Bush v. Gore, that the Chief Justice should think of the health of the republic and take one for the Supreme Court.

                But I fear our lefties will never be satisfied, and will spit on CJ Roberts’ wisdom, sacrifice and statesmanship rather than see it for what it is.

                I just hope there aren’t enough of them to ruin what’s left of our polity. This was a brave and wise decision our Chief Justice has made. The Obamacare bill deserved to be overturned: Hell, it was “swing vote” Justice Kennedy who wrote the dissent!

                John Roberts and what he did today is a reason to love this country, and not abandon faith in it. Processes, policies and politics are not what makes a nation. Patriotism does, and Chief Justice John Roberts is an American patriot. What he did today was good for all of us, not just this half or that.Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                But I fear our lefties will never be satisfied, and will spit on CJ Roberts’ wisdom, sacrifice and statesmanship rather than see it for what it is.

                “Look! Did you see it? ”


                “How quickly a hypothetical possibility turns into irrefutable fact, one to be used as a cudgel to beat ones enemies! That my, my friend, is how myths are born.”Report

              • Let’s give John Roberts his props then, Mr. Still? I was hoping that you were not one of those “lefties” of whom I hope there aren’t too fucking many of. In the words of the splendid Ali G, check yrself before you wreck yrself, eh?

                I said I “feared” it,

                But I fear our lefties will never be satisfied, and will spit on CJ Roberts’ wisdom, sacrifice and statesmanship rather than see it for what it is.

                and you did nothing to assuage my fears. To the contrary.

                Assuage. Assuage…Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                Your fear was that lefties wouldn’t see the “wisdom, sacrifice and statesmanship” of John Roberts, all of which is purely speculative at this point. But for somereasonorother, you’re elevating it to a matter of established fact.

                It isn’t. Yet, anyway. Right now, we have no idea why he ruled as he did.Report

              • Speak for yrself, brother, that you have no idea. I have quite a good idea why Justice Roberts did as he did. Your good idea to the contrary would mean we’re having a discussion!Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                My ‘good idea’ to the contrary is that you don’t have any evidence for your good idea. If you had evidence for your idea, and I had evidence for a different idea, we’d be having a discussion about which of our ideas is the right one. But right now, we’re only having a discussion about you’ve formed an opinion about Robert’s motives without any evidence to substantiate it. Other than pure speculation.

                But if pure speculation counts as evidence, then have at it.Report

              • Avatar Tim Kowal in reply to Tom Van Dyke says:

                Tom — I’m still very much ambivalent, but very much hoping the part of me that agrees with you prevails. As to my other mind on this, I am going to try to post the transcript of Hewitt’s interview of my old law prof and mentor John Eastman yesterday, who is mighty upset about the decision. Would be very interested to get your take on it with respect to what it means to our “independent” judiciary if it cows too easily to public sentiment. At some point, there would be no need to talk about constitutional conventions since, were the Court to simply pander to popular will, every session of Congress is a new constitutional convention.

                I don’t believe Roberts’ decision goes that far, not by a sight. But it does raise the question of whether there’s some articulable limit to what we suspect he may have been thinking here.

                Or, maybe what you’re saying is, this is not the sort of thing we can have articulable limits about, and we absolutely depend on wise and judicious and patriotic statesmen, in the true sense of the word, to privately agonize over such questions. And perhaps we have this in CJ Roberts and his Court, God save it.Report

              • Avatar Tom Van Dyke in reply to Tim Kowal says:

                Tim, the dissent shows why Obamacare is unconstitutional. Roberts exercises wisdom, that the Courts should not always use their power to right all legal wrongs.

                As a good governance guy, I admire such prudence. Roberts has thrown a political question back to the political sphere where it belongs.Report

              • Avatar Mike Schilling in reply to Tom Van Dyke says:

                And the four concurring justices show why it is constitutional. The lack of even the slightest effort to hand-wave them away and the pretense that Roberts decided this case unilaterally is striking.Report

              • Of course Roberts decided the case, Mike. He found a way to leave the bill in place that the Obama administration didn’t even argue, that the mandate/penalty is really a tax.

                I don’t know what news sources you consume, but you’re clearly undernourished. 😉Report

              • Avatar Tim Kowal in reply to Tom Van Dyke says:

                I don’t know how that squares with Chief Justice John Marshall’s observation in Marbury v. Madison that it is “the very essence of judicial duty,” the reason a “judge swear[s an oath] to discharge his duties agreeably to the constitution,” that the judge must find “that a law repugnant to the constitution is void”; and his observation in McCulloch v. Maryland that “should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land.”Report

              • Tim, prudence and restraint are in a SC justice’s job description too, especially the Chief Justice.

                The Obamacare bill is a horror, far beyond what the general public is aware of. This political question will be resolved at the polls, and I think it’s proper that the SC continue, where possible, to keep the political where it belongs, in the hands of the people.

                By defining it as a tax [of borderline constitutionality], Roberts has laid out the equation in its best form.

                And hey, perhaps the people will love the idea and elect a congressional majority that can write and pass a good law that is of unquestionable constitutionality. That would assuage my “good governance” gene just fine.Report

              • In addition to what Tom says immediately above, with which I fully concur, I’d just point out that his notion about judicial restraint being part of the job finds no shortage of support in the well-recognized doctrine of Constitutional avoidance, basically making it the task of the court to bend over backwards to find any plausible interpretation of a statute that would avoid rendering it unconstitutional. The upside of using this doctrine (which Roberts did, I jump to add) is that whenever the Court is compelled to do so, the effect is always going to be to place a very narrow interpretation on the statute, and any deviation to broaden that interpretation, whether by the courts or by subsequent legislative amendment is going to run into problems.

                Is Roberts’ reading exactly how Congress intended it to be read? Well if Congress can even be said to have an “intent,” then I think the answer is that his interpretation is probably not what they intended. But does Roberts’ reading meet the low threshold for a “plausible interpretation”? I think it does, since this is such a low bar.Report

              • Avatar Mike Schilling in reply to Tom Van Dyke says:

                Of course Roberts decided the case, Mike.

                And when we lost the game? Entirely the fault of the guy who made the last out.Report

              • Avatar Kolohe in reply to Tom Van Dyke says:

                Chief Justice Roberts: The Bill Buckner of Jurisprudence.Report

              • Avatar Tim Kowal in reply to Tom Van Dyke says:

                I think I agree with everything Tom and Mark have said here to the extent Roberts truly believes in the tax justification laid out in the opinion. I would be very slow to come to a belief that he doesn’t, but I must say that it is fraught with many problems that he doesn’t address, which is conspicuous given the attention given to the case, the length of oral arguments (and lack of mention of the taxing issue at oral arguments), and the length of the opinion. All of this leads to some discomfort, and has led to many to ask whether there is some extra-legal, extra-constitutional considerations at play here. It is as to those questions that I am of two minds, which I partly laid out today at Dutch Courage. I find the alternate conclusions, that Roberts is a statesman of the first order and that Roberts should resign (again, only we we could assume, which I neither do nor have cause to do, that Roberts did not assert the tax justification in good faith), both plausibly supported depending on the answer to those questions.

                Though I’ve not answered these questions for myself yet, I presently lean towards admiring Roberts and expecting that his opinion will in fact be worthy of its historic significance.Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                I was tending bar in a popular sea-food joint in Chicago when the Mets were down to their final out. I guy from Boston says “I wanna buy two bottles of champagne RIGHT NOW! Open em up!’ I said, “you sure you don’t wanna wait for the last out?” “Hell no!” he yells. I had just popped to cork on the first bottle when the ball squibbed between Buckners legs.

                I didn’t get a very good tip that night.Report

              • Avatar Mike Schilling in reply to Tom Van Dyke says:

                I had just popped to cork on the first bottle when the ball squibbed between Buckners legs.

                That’s odd – the Sox fan bought champagne when the score was tied? 🙂Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                Dude, he ordered it when they were ahead. I didn’t get around to popping the cork on it till we got Bucknered.

                It was BUSY!Report

              • Avatar Mike Schilling in reply to Tom Van Dyke says:

                The game was already tied when the ball went. between Buckner’s legs. That let in the winning run, not the tying one.Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                Wasn’t Boston ahead at the bottom of the inning? 5-3, I think? I thought NY scored three runs to win in the bottom of the … 10th? 11th? With two outs. Or am I misremembering?Report

              • Avatar Kimmi in reply to Tom Van Dyke says:

                I’ll not spit on Roberts’ wisdom. What I will note is that it appears as if it came out of a state of panic. And that just looks bad for all of us, not just the law students who get to study this later.

                Like Roe V Wade, this is gonna go down in the history books as “we ought to have done better.” Unlike Roe V Wade, here the court has no excuse by the case’s significance.Report

              • Avatar Tom Van Dyke in reply to Kimmi says:

                Oh, that’s spit all right.Report

              • Avatar Kimmi in reply to Tom Van Dyke says:

                no it ain’t. I object quite strongly to the wording of the decision, without making one scrap of difference about the actual decision.

                Can you allow me to quibble over semantics without calling me both unmannerly and ungrateful?Report

        • Avatar Scott in reply to Tom Van Dyke says:


          Sorry, but loose ends are Congress’ problem not the Court’s. All this law means is that the next time the gov’t wants to create a mandate they only have to call it a tax.Report

          • Avatar Tom Van Dyke in reply to Scott says:

            Scott, the “loose ends,” the healthcare ponies Obama gave out, are his and the Dem congress’s fault. But overturning the bill, all the 25-yr-olds on their parents’ insurance, etc. and fishing etc., no good man. Chaos.

            Yes, the loose ends were “The Court’s” problem, because they had the final call. And it was the Chief Justice who did what needed to be done. Were he not the CJ, he’d have been free to vote theory or sentiment. I think the conservs were right in theory, the libs in sentiment. [Justice Ginsburg’s solo dissent is an abomination in both. She just doesn’t give a shit anymore.]

            And I’ll tack on one more, that the president isn’t half the statesman our Chief Justice is. I think if Roberts had been the Fifth Vote to overturn, we’d be in a world of poopoo right now.Report

          • Avatar Marchmaine in reply to Scott says:

            Taken alone, this is not necessarily a bad thing. It is interesting to speculate how the final product might have been different if we had all known in advance that the “republican idea of a mandate” (based on the commerce clause) was unconstitutional from the start.Report

    • Avatar Tim Kowal in reply to Tim Kowal says:

      Hugh Hewitt suggests something similar but fleshes is out more:

      “One way to think about this: The decision is a modern Marbury v. Madison, where the executive who thought he had won had actually lost. The Chief Justice, already on the fence because of the plausible argument about the taxing power and worried about the Court’s reputation and legitimacy as well as the prospect of two or three more appointees from President Obama, decides to go for the historic win and, by putting the taxing power on steroids, upholds the law but also changes the campaign tone which will not only result in the election of Mitt Romney and security in the next round of Supreme Court nominations and confirmations, but also lays the foundation for a long range cabining of the Commerce Clause and an eventual strike down of other portions of Obamacare, including the HHS regs. If this scenario plays out, this will put Roberts in Marshall’s rank, but that depends on the electorate and, if elected, Mitt Romney’s appointees to SCOTUS.”

      I do think this will change the campaign tone, but not sure how or in whose favor. The rest is similarly plausible, but not sure exactly how.Report

      • Avatar Stillwater in reply to Tim Kowal says:

        The rest is similarly plausible, but not sure exactly how.

        I’m with you on that. It seems a little to early to be citing Roberts opinion on the ACA as leading to conservatopia. Maybe we should wait a day or two.Report

      • Avatar DensityDuck in reply to Tim Kowal says:

        Indeed, maybe this is Kelo all over again. “The Constitution and its Amendments mean what they say they mean, and what was done here is something that they say Congress can do. If you want this fixed, do it in the legislature.”Report

      • Avatar Tim Kowal in reply to Tim Kowal says:

        More on the Marbury angle, which is increasingly persuasive:

        Particularly this bit at the end:

        “One of the interesting features of Marbury is that the court didn’t have to decide that Marbury was entitled to his commission. Indeed, it probably should have decided the jurisdictional issue first, then left the remaining issues for the courts to decide upon refiling. But Marshall wanted to get the most favorable outcome for Federalists that he could, while still maintaining the court’s credibility.

        “Similarly, Roberts actually didn’t have to address the Commerce Clause/Necessary and Proper Clause issues. Having decided the tax issue, he actually probably could have stopped there. That he didn’t suggests that he wanted to make sure that, even in defeat, there were five clear votes for the conservatives’ view of the Commerce Clause and Necessary and Proper Clause.”Report

        • Avatar Tom Van Dyke in reply to Tim Kowal says:

          Yah, Tim, I saw that one. Exc. Altho this:

          “If the only way Americans can defend their liberties is to hide behind the verbiage of a Supreme Court opinion, it’s already too late for freedom here.

          My guess is that the chief justice doesn’t think it’s too late. He knows, as we all do, that the remedy — a remedy far more potent than any judicial decision — is at hand.

          If conservatives in an election year like this one can’t win the battle of the ballot box, no Supreme Court judgment can save them.”Report

          • Avatar Tim Kowal in reply to Tom Van Dyke says:

            True words, but we cannot pretend, and the court should not pretend, that all our wounds are self inflicted. We have good constitutional safeguards, yet they are ignored. It is somewhat indecorous for the Court to punt to the people a problem of government over reach which the court helped create in the first place and had the opportunity to redress.

            That said, I am sympathetic to the reality that repairing the damage done by 75 years of unprincipled precedents will take some delicacy, which I imagine is what the CJ had in mind.Report