On Roberts: Not a Fan of the Butterfly Effect


Ethan Gach

I write about comics, video games and American politics. I fear death above all things. Just below that is waking up in the morning to go to work. You can follow me on Twitter at @ethangach or at my blog, gamingvulture.tumblr.com. And though my opinions aren’t for hire, my virtue is.

Related Post Roulette

24 Responses

  1. Avatar Kris says:

    Really nice artice. You say you lack analytic insight, but that’s the only mistake you made.

    The activity/inactivity distinction is really messy in general, in my opinion. If I drown my Uncle Scrooge to get his trillion dollar inheritance that’s active killing. If I see him drowning in his bathtub and don’t lend a hand to save him, that’s inactivity? Or is it? I am actively making a choice to use my body to do X instead of Y. In the first case, I’m actively using my hands to hold Uncle Scrooge down. In the second case, I’m using my will to hold my hands at my side while he drowns.

    That said, I actually like Roberts ruling. He’s write that there has to be some limit to the commerce clause. The commerce clause can’t be used to justify a law that requires -on pain of inprisonment- that you circumcise your children, or some such.

    I’m interested in what sorts of laws might be found unconstitutional under Roberts ruling. Certainly, any use of tax penalties is okay. So Roberts ruling might even allow a tax on not eating broccoli, or a tax penalty on not buying life insurance or a college education. It seems to only ban other kinds of mandates that are other than tax penalties.

    But what sorts of laws require a behavior and threaten something other than a tax penalty? Do socialist countries like Sweden have such laws? (I don’t think so.) If not, how is Roberts ruling at all a threat to future left-wing Democratic legislation. Democrats want to expand Medicare and Medicaid, to make college cheaper or free for the poor. They want to gove people some welfare in times of need.

    The only sort of law that I see threatened by the Roberts ruling are more right wing plans that try to privatize things like social security. Suppose some Republican says, we’ll requireyou to save for retirement and give you control of how you nvest your savings. But if you don’t follow the rule and you blow all your savings intentionally (perhaps you plan to leave the US before you retire or somesuch) you may go to jail. That kind of neo-liberal, supposedly more libertarian law might be at risk from Roberts ruling.

    This is a liberal, left-wing ruling from Roberts. (The Medicaid ruling is a bit more worrisome, but states rights are important and have been strengthened. That might be for the best in the long term.Report

  2. Avatar James Hanley says:

    it seems clear to me that a decision not to purchase is as much a part of commerce as its opposite. After all, decisions not to purchase overpriced, flimsy, or unnecessary products and services all drive market activity.

    That’s a good point, but it does compel the question of whether there is any activity or inactivity of any kind that the government does not authority over. If your standard is anything that has an economic effect, then I’m puzzled to figure out what’s left out of the government’s regulatory sphere.Report

    • Avatar Will Truman says:

      This! Though not universally so, I am skeptical of “inaction is action” arguments. That was one of my hesitations with the Mandate, and I problem I still have with it as a regulatory thing. But I always thought it was constitutionally permissible on taxation grounds.Report

    • Avatar Ethan Gach says:

      I am puzzled as well by it, as too, seems Roberts.

      This is super vague: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”

      We give Congress the power to regulate commerce betwen the states. Either that means only commerce between the states themselves, as in the actual state governments, or it means any commerical activity that crosses state lines by virtue of actual business transactions, or it means anything ever.

      I’m not very familiar with Commerce Clause interpretations, but it seems easy to look at only actual commercial transactions, and say this is interstate, or its not.

      But if, and I’m not saying we should, interpret it to include the regulation of effects, e.g. polution by part A in state B negatively affects party X in state Y, then all bets, it would appear, are off.

      The Court, and legal opinions in general, seem to like walking fine lines and carving things out and so on and so forth, but the problems with doing that, with being vaugue and limited, is that it makes it easy to be arbitrary and capricious, i.e. when you distinguish by degree, rather than by type, the boundaries become so blury that anyone can justify whatever they want, and it all devolves into a matter of political force (number of Justices of one political affliction or another, etc.).Report

      • Avatar James Hanley says:

        This is super vague: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”

        Vague, yes, but we can have no doubt that we are long since past the limits of its meaning as it was originally intended. The real purpose of it was to take the power of regulating interstate commerce and with foreign nations away from the states, which under the Articles of Confederation were setting tariffs against each other, and a whole variety of other beggar-thy-neighbor activities. But about the only economic regulation actually expected from the federal government as a consequence of the ICC was setting tariffs on imports. They didn’t actually do very much regulation of commerce among the states.

        I don’t have a problem with extending the power beyond that original formulation (heck they even had a debate over whether Congress had the power to build a national road). But there is a trajectory here, and each decision like this keeps things moving in that trajectory. And the “inactivity = commerce” concept lacks even a hint of a theoretical stopping point. I’m not saying we are actually going to be required to buy broccoli n the near future, but it’s been within my lifetime that the idea of this mandate would have been shockingly unthinkable.Report

        • Avatar BlaiseP says:

          This line of rhetoric is meaningless. The Commerce Clause means what SCOTUS tells us it means, as it always has. The Rehnquist Court gave us one reading, the Roberts Court gives us another, as the Harlan Stone Court did in the era of Wickard v. Filburn and the Hughes Court gave us Darby Lumber and Carter v. Carter Coal Company.

          There was no original formulation. The first case I can find is Gibbons v. Ogden, thereafter SCOTUS is silent on the issue for decades.Report

        • Avatar Pierre Corneille says:

          But there is a trajectory here, and each decision like this keeps things moving in that trajectory.

          I would argue that because Roberts, the deciding vote, claimed the mandate operates as a tax and not as commerce regulation, this decision actually does not keep things moving along the “everything is [becoming] commerce” trajectory.

          I assume you weren’t saying the “trajectory” is “everything is [becoming] commerce,” but rather that the government is increasingly empowered to do almost anything, this time by a “tax” that is also somehow a “penalty.” If we ignore the incongruity of a penalty also acting as a tax, then this decision is not much different that any federal tax that is used in furtherance of a presumed social service or benefit.Report

        • Avatar M.A. says:

          The real purpose of it was to take the power of regulating interstate commerce and with foreign nations away from the states, which under the Articles of Confederation were setting tariffs against each other, and a whole variety of other beggar-thy-neighbor activities.

          Which gets awfully weird when you consider the effects of the 21st amendment in allowing for states to set their own liquor laws, prohibit liquor entirely, or set crazy interstate-regulatory taxation and commerce restrictions on shipping in just that one area.

          States have gotten around “entrance tax” laws merely by co-opting the federal Interstate system and overlaying it with “toll roads.” In some states, they specifically attack interstate shipping by attaching tolls only to commercial vehicles.

          I’m sure there are other ways that haven’t been challenged as the domain of the feds only, and as I said – part of the 21st amendment really ought to be repealed as an interstate commerce thing. The idea that I have to pay bribe money to a bunch of state senators’ or representatives’ kids in Texas to be “distributors”, or pass it through the bribes and extortion mill that is Utah’s “state stores” if I want to start a licensed distillery producing perfectly legal booze in Nevada…Report

      • Avatar Ethan Gach says:

        I agree James, but I would have preferred Roberts have come out and say, yea, inactivity is pretty much the same as activity, at least as it pertains to commerce, but we can’t just let the government regulate everything, and the odds of amending the Constitution are slim, so for the good of everyone I have stop the buck here.Report

    • Avatar DensityDuck says:

      ” it does compel the question of whether there is any activity or inactivity of any kind that the government does not authority over.”

      Note that the opinion declares that while Congress cannot make inactivity illegal, it is permitted to tax it–so, yes, the government does have authority over “activity or inactivity of any kind”.Report

    • Avatar Jaybird says:

      If your standard is anything that has an economic effect, then I’m puzzled to figure out what’s left out of the government’s regulatory sphere.

      This brings us back to Wickard and Raich and god only knows how many other cases.Report

      • Avatar Fnord says:

        Quite right. Activity or inactivity, Angel Raich was certainly not involved in commerce for any sensible definition of the term.

        From, ironically enough, the same place the “broccoli mandate” argument started, the Volokh Conspiracy:
        “There is a difference between activity and inactivity that raises concerns about individual liberty. But [the conservative justices] come to the wrong conclusion on the individual mandate for the very simple reason that the individual liberty concern is not relevant in the context of interpreting the Commerce Clause. The Commerce Clause does not exist to draw a line between government authority and individual freedom like, for example, the First Amendment does. The Commerce Clause exists to determine where the proper scope of federal power ends and state power begins.”

        Admittedly, I’d be plenty happy to see Raich overturned.Report

  3. Avatar Michelle says:

    A lawyer friend of mine suggested that Roberts’ interpretation of the Commerce Clause was actually quite reactionary, limiting what Congress can enact under the purview of the Commerce Clause. Will Wilkinson suggested the same yesterday in a post anticipating the decision:

    “To brighten the dashed hopes of conservatives, the ‘Why there can never be a broccoli mandate’ section of Roberts’ decision will on the whole narrow Congress’ commerce-clause regulatory powers. However, in their very great relief, and schadenfreude over bitter conservative disappointment, liberals will largely miss the minor revolution contained in Roberts’ sly scholasticism.”


    I haven’t had a chance to read the decision yet, so I’m not sure if the argument will hold, but I wouldn’t put it past Roberts to sneak an essentially conservative interpretation into the opinion. I doubt he’s going all left-liberal on us (although I’m guessing all the usual right wing sources are freaking about where he came down on this matter).Report

    • Avatar Kimmi says:

      yeah, it’s clever on his part. And, actually, I do get his point.Report

    • Avatar Tom Van Dyke says:

      Michelle, Wilkinson’s accuracy is eerie. Roberts poisoned the Commerce Clause, we should note.Report

      • Avatar Stillwater says:

        You found the silver lining Tom! Sustaining the ACA is a victory for conservatism!

        You can spin that sh*t all day long.Report

        • Avatar Tom Van Dyke says:

          I was quoting Wilkinson. Put it back in your pants.Report

        • Avatar Turgid Jacobian says:

          That’s how I see it, long term. Short term, the President has to feel moderately good. Long term, there are two big things–this bit that seems to go well beyond Dole, and the other that starts back down the road through Wickard to Lochnerville.Report

    • Avatar Kris says:

      I really don’t get Wilinson’s point.

      What law is there, that is supported by the left-wing (moderate or otherwise), that would be struck down on the basis of Roberts’ decision? The left-wing wants to have progressive taxation and use that funding to create free public schools, free or subsidized universities, old-age pensions, etc. All of those things are obviously permitted.

      Roberts’ ruling only seems to spell bad news for neo-liberal and conservative plans to enact things like privatized social security. A private social security scheme might have to require you to save money, and might have to have serious punishments (more than just tax penalties) associated with not saving.

      If the idea is that Roberts’ ruling is a win for conservatives because it suggests that the commerce clause has some limits, any limits, that’s just not true. Surely even the most liberal justice wouldn’t think that requiring everyone to, say, have their child circumsised is permitted by the commerce clause. Every meaningful clause allows some things and bans others. The Commerce Clause is no different, it had limits before Roberts’ ruling. But the limits that Roberts’ ruling lay down seem pretty much entirely obvious regardless of his ruling.Report

  4. Avatar Kris says:

    Shorter Roberts: The Federal Government can’t make you buy something, but they can tax you differently if you don’t. Note that “make” means somehing really strong here, more than just “coerce with fees or tax credits.

    What liberal government ever wanted the government to have the power to make people buy stuff in that stronger sense? The government makes you pay taxes, maybe makes you enter the draft. No one has ever proposed making you buy something in that strong sense of “make.” No liberal government, not in the U.S or socialized countries like Canada, ever will propose that. Certainly, no one would’ve supported jail time for not buying insurance.

    Roberts showed that The whole broccoli argument was a red herring. Yes, Justice Scalia, the government can’t make you buy broccoli, but it can provide tax credits and fees for things that promote the common good. Thats what the ACA does.Report

  5. Avatar Brandon Berg says:

    Heh. “The Butterfly Effect” is the term I use to ridicule the idea that the Constitution gives the government the power to regulate anything which might conceivably have an effect on interstate commerce, when in reality it only states that Congress has the power to regulate those things which actually are interstate commerce.

    It’s fascinating to see it being used non-ironically by a proponent of that interpretation.Report

    • Avatar E.C. Gach says:

      No where do I state that I am a proponent of that view.

      My concern here is why Robterts is alright with some kinds of interstate commerce being regulated, but not others, without giving any robust criteria for how to distinguish between the cases.Report

      • Avatar George Turner says:

        If we dig into interstate commerce, does the federal government’s actions overcome states’ restrictions on trade between states? The commerce clause is logically related to other areas of federal supremacy, such as patents, whereby we maintain a national system of patents to prevent states from granting their own to protect domestic producers from out-of-state competition.

        I’m redecking a 1973 Thundercraft walk-through-windshield speedboat for my housemate, and it was involved in this very question. Thundercraft, located in Tennessee, was sued by Bonito Boats of Florida for copying their hull production method which was protected from competition under Florida law. The Supreme Court ruled in Thundercraft’s favor in Bonito v Thundercraft.

        Just as the Constitution grants the federal government power over a patent system, it grants the federal government power over regulating interstate commerce. Saying that the federal government can mandate commerce that doesn’t exist is akin to the government having the power to force people to invent things.Report

      • Avatar Brandon Berg says:

        No where do I state that I am a proponent of that view.

        Indeed you do not. I apologize for the misconstruction.Report