Did Roberts Originally Vote To Strike The Entire Law, But Feel "Tremendous Pressure" And Reverse His Vote?

Volokh:


Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA? The dissent, along with the surprising way that Roberts chose to uphold both the mandate and the Medicaid expansion, will inevitably feed the rumor mill.

If this "man" changed his vote due to Obama's and his liberal friends' hectoring... I don't know what to say.

And so if I have this right: The Federal Government may now levy a special tax on me if I do not comply with their specific directives about what I should buy, or do?

Can they tax abortions at a high rate?

If I don't eat broccoli, they can assign a special tax, right? After all, it's just a little tax. I have the choice to either eat broccoli or pay the tax.

They can do that, right?

Can they tax me at a high rate if I own a gun? How about if I refuse to own a gun?

The government may now, per Justice Roberts, assign special taxes on people if they do not live their lives the way the government prefers.

As an old fuddy-duddy justice said, a long time ago: The power to tax is the power to destroy.

Posted by: Ace at 12:37 PM



Comments

1 If it was going to be upheld this is the way to do it.

It's now a trillion dollar tax increase hung around Obama's neck.

Posted by: BigPale at June 28, 2012 12:38 PM (KWg+0)

2 Roberts is a Big Government Conservative. That is why Bush picked him

Posted by: robtr at June 28, 2012 12:39 PM (MtwBb)

3
Linky no worky....

circles inside of circles wrapped up in conundrums...

Posted by: fixerupper at June 28, 2012 12:39 PM (C8hzL)

4
If Roberts flipped under political pressure to protect his image/legacy, he will have actually destroyed it. History will hold him in contempt ... IF TRUE

Posted by: Grumpy the Younger at June 28, 2012 12:40 PM (jts1f)

5 Nancy Pelosi:

Being a woman is no longer a pre-existing condition.

Thank you to Patrick Kennedy for all his work to prove that health care is not a privilege but a right.


What the fuck country am I in again?

Stop the world, I want to get off.

Posted by: © Sponge at June 28, 2012 12:40 PM (UK9cE)

6 If this "man" changed his vote due to Obama's and his liberal friends' hectoring... I don't know what to say.

He's a huge liability. Expect him to fold whenever something major comes up for the SCOTUS.

Posted by: EC at June 28, 2012 12:40 PM (GQ8sn)

7 Fuck President chimpymcbushhitler I hope he gets tried or war crimes.

Posted by: Mr Pink at June 28, 2012 12:40 PM (MpDjI)

8 One thing is for sure...

If Roberts wanted to write his name in history, he certainly did that.

Posted by: Jay in Ames at June 28, 2012 12:40 PM (UEEex)

9 What makes that rumor more believeable is that if you are going to uphold it on under the taxing power, why address the commerce clause at all? In any event, if the taxing power is this broad, why was it necessary to enact the 16th A?

Posted by: SH at June 28, 2012 12:41 PM (gmeXX)

10 I do. Fuck Roberts.

Or if you prefer mild sauce: Impeach Roberts.

Start printing the bumper stickers.

Posted by: Exile at June 28, 2012 12:41 PM (bR7nX)

11 Don't get mad, get even! Vote Nov 6th to repeal it.

Posted by: I'm the Honey Badger, BITCH! at June 28, 2012 12:41 PM (+7Usq)

12 I think we are dead.

Posted by: Joffen, fucking sunshine patriot at June 28, 2012 12:41 PM (aI2re)

13 When people thank President Bush for his Supreme Court justice, they can only be talking about the first one's pick of Clarence Thomas.

It is so ordered

Posted by: The Q at June 28, 2012 12:41 PM (B/yDO)

14 Ugh.

Posted by: David of PA at June 28, 2012 12:42 PM (RHrNg)

15
#8
Roberts will be damned for all time.

Posted by: Jack at June 28, 2012 12:42 PM (wUFaM)

16 I am going to piss Roberts name in the snow.

Posted by: Exile at June 28, 2012 12:42 PM (bR7nX)

17 I think that once everyone has a chance to read Roberts' opinion and has calmed down a bit from the initial shock, it will be revealed that Roberts isn't the traitor he first appeared to be.

Cooler heads prevail.

Both Redstate and The Weekly Standard are already writing to that effect.

Posted by: Niedermeyer's Dead Horse at June 28, 2012 12:42 PM (piMMO)

18 using the word "man" for any politician who lacks a medal for Valor is a misnomer....

and the Men and Women in black are simply politicians with a different schtick

Posted by: sven10077 at June 28, 2012 12:42 PM (LRFds)

19 If Roberts wanted to write his name in history, he certainly did that.


Pro-tip: Use a chisel and mallet to carve it in to stone. Don't piss your name in the snow.

Posted by: fluffy at June 28, 2012 12:43 PM (z9HTb)

20 If Roberts wanted to write his name in history, he certainly did that.


Posted by: Jay in Ames at June 28, 2012 12:40 PM


Yup. His name will be carved on America's grave marker, right under those of (in order) Bark Obama, FDR and George W. Bush.

Posted by: MrScribbler at June 28, 2012 12:43 PM (MQc8e)

21 This line is correct. Roberts was pressured by Laurence Tribe et al.
Check out Professor Tribe's February 2011 Op Ed in the NYT's.
Tribe signal loudly to Roberts, his former student, to make this constitutional under a Tax and under the concept of it being a social contract etc...
The best way to understand Robert's flawed thinking is Illya's 11:36 A.M. post on Volokh.
Robert's opinionis legal heresy and obfuscation.

Posted by: Scandia at June 28, 2012 12:43 PM (QWOh7)

22 If Roberts did indeed succumb to pressure from the left, he is a coward and essentially a co-conspirator in the trashing of America.

Posted by: Soap MacTavish at June 28, 2012 12:43 PM (vbh31)

23 Doesn't matter at this point. Post mordem.

Posted by: The Jackhole at June 28, 2012 12:43 PM (nTgAI)

24 I am not so sure about vote switching, but it is possible.

I get Roberts is playing chess (at least Roberts thinks so) and that this decision is very Holmes-like. Yes it is nuanced and has limitations on the commerce clause and certainly on mandates. Yes it may help tip this election to Mitt Romney and may prompt Congress to do some heavy lifting for a change. Still, it is a grave disappointment. He could have gone with the dissent and still written the opinion he did. Rather he wanted to look independent and he is in his heart a Statist.

Posted by: Evi L. Bloggerlady at June 28, 2012 12:43 PM (IgakF)

25 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.

Posted by: Rodney King at June 28, 2012 12:43 PM (e8kgV)

26 Pressured?

Perhaps. Who knows.

Roberts handed down a political ruling rather than a legal ruling. Roberts did the same thing on AZ.

Roberts is a lousy justice and a dunce.

Posted by: soothsayer at June 28, 2012 12:43 PM (3oX3m)

27 I think I remember during Roberts' confirmation process, there was some alarm over the fact that he said precedent was very important, not just the text. There was room in there for him to play, and I think that's what happened here.

Posted by: BurtTC at June 28, 2012 12:43 PM (TOk1P)

28 The issue here is not whether this a "tax" or a "commerce clause" issue.

The issue is "class expediency".

Posted by: N.V. Krylenko at June 28, 2012 12:43 PM (zlvkY)

29 I do. Grow some damn balls, fuckass.

Posted by: Lauren at June 28, 2012 12:43 PM (hNLFW)

30 "If this "man" changed his vote due to Obama's and his liberal friends' hectoring... I don't know what to say."

I can say plenty. He's a pussy, he's an utter fucking coward, he's a disgrace, when his character was tested it was found wanting, that Roberts is Obama's bitch ... oh, there's lot's I could say.

Oh, and thanks W, thanks for giving us yet another liberal turncoat on the court.

Posted by: thirteen28 at June 28, 2012 12:44 PM (AbmsP)

31 This makes perfect sense in light of the odd way the opinions read. It intermittently switches from "opinion of the court" to "opinion of Roberts" and back and forth.

Thus:
Here are the parts of the opinions and who voted for them/joined in them:

I (Introduction): No vote here or opinion - just background.

II (Anti-Injunction Act): Roberts, Ginsburg, Breyer, Sotomayor, and Kagan.

III-A (Commerce Clause smackdown): Roberts only.

III-B (The only way to view the mandate is as a tax): Roberts only.

III-C (It is possible to view the mandate as a tax and therefore constitutional): Roberts, Ginsburg, Breyer, Sotmayor and Kagan.

III-D (A critique of Ginsburg's dissent regarding Commerce Clause): Roberts only.

IV (Medicaid expansion unconstitutionally coercive): Roberts, Breyer and Kagan.

Thus,
only parts II and III-C are the formal opinion of the Court with force
of law. Although the dissent of Scalia, Kennedy, Thomas and Alito echoed
what Roberts wrote in III-A and IV, they did not join him in those
parts and therefore those parts did not secure the agreement of a
majority of justices.

Sorry for length.

Posted by: angler at June 28, 2012 12:44 PM (SwjAj)

32 Thank you Judge Roberts for your awesome decision! The hicks in flyover
country are lining up to give me their money. Keep up the good work!

Posted by: Mitt Romney at June 28, 2012 12:44 PM (RAWKi)

33 Roberts will be loathed forever for this decision. No matter what future cases he participates in.

It will be repealed. So what will he have gained with his ridiculous intrusion on our individual rights?

Posted by: Exile at June 28, 2012 12:44 PM (bR7nX)

34
9 What makes that rumor more believeable is that if you are going to uphold it on under the taxing power, why address the commerce clause at all? In any event, if the taxing power is this broad, why was it necessary to enact the 16th A?
Posted by: SH at June 28, 2012 12:41 PM (gmeXX)


Because the commerce clause would do more damage to freedom in the long term.

Calling it a tax put it back in the political, as opposed to legal, process where it belongs.

Without the 16th, Congress could only tax sales and property and would have no mechanism for enforcement.

Repeal is the answer.

Posted by: Grumpy the Younger at June 28, 2012 12:45 PM (jts1f)

35 Obama is a stuttering clusterf*ck of a miserable failure.

Posted by: steevy at June 28, 2012 12:45 PM (Xb3hu)

36 On one hand I am saddened. At least Robert's wrote a nice civics lesson explaining why the commerce clause was not upheld.That should sting a liberal or two. The fact he said it is one giant tax is another silver lining. My fear is that this ruling gives Romney cover not to forge ahead with a full repeal....

Posted by: Psycotte at June 28, 2012 12:45 PM (Hk10/)

37 How many posts will be put up before someone gets to the real issue? The federal government doesn't have to "mandate" anything to make you do it. It simply allows an exemption or deduction in the income tax code for those who do it.

Repeal the Sixteenth Amendment!

Posted by: Gerry at June 28, 2012 12:45 PM (knMIa)

38 Yup. His name will be carved on America's grave marker, right under those of (in order) Bark Obama, FDR and George W. Bush.


Posted by: MrScribbler at June 28, 2012 12:43 PM (MQc8e)



Don't forget LBJ

Posted by: TheQuietMan at June 28, 2012 12:45 PM (1Jaio)

39 Compassionate Conservatism....

Posted by: MostlyRight at June 28, 2012 12:45 PM (ZG8Ti)

40 Jeffrey Toobin said on twitter that Roberts was "red eyed, unhappy" when he was reading the decision. So maybe he is right.

Posted by: Colonel Pooteh at June 28, 2012 12:45 PM (t2cnv)

41 I know what to say ace,impeach him.

Posted by: steevy at June 28, 2012 12:45 PM (Xb3hu)

42 If this "man" changed his vote due to Obama's and his liberal friends' hectoring... I don't know what to say.


If he changed his ruling because of pressure then he doesn't belong on any court, anywhere.

Posted by: Ghost of Lee Atwater at June 28, 2012 12:45 PM (JxMoP)

43 Cooler heads prevail.

Both Redstate and The Weekly Standard are already writing to that effect.


Posted by: Niedermeyer's Dead Horse at June 28, 2012 12:42 PM


No doubt followed by NRO and Tepid Air.

If we're now being brainwashed to believe a total loss is really a "win," the spin on Bark Obama's re-election will be truly awe-inspiring.

Posted by: MrScribbler at June 28, 2012 12:45 PM (MQc8e)

44 Chairman Ryan just said he thinks they could repeal 80% of ObamaCare under reconciliation; the rest would require 60 votes. Ultimately, it is for the Senate Parliamentarian to decide.

Posted by: Miss80sBaby at June 28, 2012 12:45 PM (d6QMz)

45 Eric Erickson gets that silver lining award of the day. I don't buy his argument or Jay Costs. But perhaps in the long run, we will look back at the whole Obamacare saga as the death of the liberal dream. I doubt it, but I hope that to be the case. Obamacare sparked the Tea Party revolution, Obamacare finally got the Court to announce an outer marker for the Commerce Clause, Obamacare may spark the defeat of Obama. We just need to get Obamacare repealed. If we can show that repeal of governmetn programs is possible, maybe we can go after other things. Who knows. Revolutions don't usually happen incrementally, they happen quickly. But remember that FDR suffered a few defeats before finanlly winning on federal expansion. We are going to suffer some defeats, but maybe we will win the long game. Hopelessly optimistic.

Posted by: SH at June 28, 2012 12:45 PM (gmeXX)

46 So far, this is just overheated jumping to conclusions.

Posted by: Jeroboam at June 28, 2012 12:46 PM (Tcwdq)

47 17 I think that once everyone has a chance to read Roberts' opinion and has calmed down a bit from the initial shock, it will be revealed that Roberts isn't the traitor he first appeared to be.

Cooler heads prevail.

Both Redstate and The Weekly Standard are already writing to that effect.
---------------------------------------

Agreed. 100% !

Roberts is smarter than this. I don't see him as being weak.

Now clever? Oh yeah!!!

Posted by: Win Some, Lose Some! But Mainly Lose. at June 28, 2012 12:46 PM (5tpzF)

48 By the way, SCOTUS is becoming a country club full of out of touch people thrilled by their own voice.

Posted by: Exile at June 28, 2012 12:46 PM (bR7nX)

49 You know who this benefits? Me, bitches.

Posted by: Mitt Romney at June 28, 2012 12:46 PM (RAWKi)

50 All I know is that super lib m-fer Larry Tribe said Roberts would uphold it (which I scoffed at) and he was right.

Posted by: Guy Mohawk at June 28, 2012 12:46 PM (EtuU3)

51

incidentally, Roberts is a good example of why it's foolish for some to keep hoping Gen Petraeus would run for president.

You don't know these people. And the prudent thing to do is always assume these political appointees will favor big government power.

Posted by: soothsayer at June 28, 2012 12:47 PM (QhsAJ)

52 So in the past few weeks:

Obama gave amnesty to 1 million illegals
SCOTUS struck down the Arizona border enforcement laws
SCOTUS upholds Obamacare

This is what it feels like to get your ass kicked by liberal fascist fuckwads.

Posted by: Flatbush Joe at June 28, 2012 12:47 PM (ZPrif)

53 The way I am looking at it.

Roberts got all of the Liberals to sign off on --

this is not a power under-

The Necessary and Proper Clause.

When is the last time that happened?

He got all of the Liberals save Ginsburg to sign off on--

Congress does not have this power under--


The Commerce Clause.

This is the first time since the 1930s that on a major case there has been a limit on Congress' ability to regulate under--

The Commerce Clause.

Posted by: tasker at June 28, 2012 12:47 PM (r2PLg)

54 Does the "tax" angle leaves the door open for Congressional repeal? One would think so.

Was it covering your butt, but still leaving legal window for repeal?

Posted by: Deli LLama at June 28, 2012 12:48 PM (uv9eO)

55 I have more faith in Roberts than a lot of you apparently do. This was a complex ruling, and there was obviously a shitpot full of coalition building and compromise. He made sure he was the guy to write it, andI tend to think that the this was the only way he could get us a favorable ruling.

Yes. Favorable.

A) The election is now about ObamaCare.
B) The Congress couldn't pass this as a tax. I don't believe it originated in the House and I don't believe they had the votes under Senate rules. Obama himself says it isn't a tax. But the constitutionality of the "tax" is not reviewable until someone pays it, which won't happen til 2014, if I know anything about law (and I don't). So there are still massive constitutional barriers to the mandate's enforcement mechanism

Posted by: Herr Morgenholz at June 28, 2012 12:48 PM (zlvkY)

56 If the man changed his vote due to political pressure, he needs to resign

Posted by: Vashta Nerada at June 28, 2012 12:49 PM (HLFzM)

57 Well, just look at you now, Chief Justice Roberts. My how you've grown in office.

Posted by: OCBill at June 28, 2012 12:49 PM (YJvVE)

58 Posted by: Lauren at June 28, 2012 12:43 PM (hNLFW)

Such language from a lady!

Although....I agree 100%.

Posted by: CharlieBrown'sDildo (NJConservative) at June 28, 2012 12:49 PM (nEUpB)

59 I'm waiting for the extra taxes for NOT buying arugula.

Posted by: EC at June 28, 2012 12:49 PM (GQ8sn)

60 Both Redstate and The Weekly Standard are already writing to that effect.

Yeah OK.

Redstate? Erick is only worried about his job on CNN and what cocktail parties he is invited to.

This decision is as bad as it gets for our constitutional republic.

I've read the decision.

Don't piss down my back and tell me it's raining. I can actually read and think for myself.

Posted by: Exile at June 28, 2012 12:49 PM (bR7nX)

61 It also now fits into what I couldn't make sense of: why Scalia, Kennedy, Thomas and Alito did not join in part III-A of Robert's opinion, wherein he smacks around the commerce clause argument. If they had, it would have been "the opinion of the court," rather than just Robert's own opinion writing for himself. Perhaps S,K,T and A had already written a commerce clause smackdown and therefore didn't join in Roberts' belatedly-written one.

Posted by: angler at June 28, 2012 12:49 PM (SwjAj)

62 Or did Robert's do us a favor and seal the fate of Obama being a one termer?

Posted by: The James Bond Coundown Guy at June 28, 2012 12:49 PM (48wze)

63 Those avenues now have some limits and the Dems will never again get away with--

the penalty/no it's a tax gambit.

Posted by: tasker at June 28, 2012 12:49 PM (r2PLg)

64 if Obama gets re elected we can be assured that there will be 3 hard left justices appointed to SCOTUS. You thought we had it bad now???

Posted by: blogforce one at June 28, 2012 12:49 PM (7cXfH)

65 I still say - it was the US Catholic Church!

it was!

don't. trust. them.

Posted by: BlackOrchid-TeamDagny at June 28, 2012 12:49 PM (SB0V2)

66 So far, this is just overheated jumping to conclusions.

Who cares? Are we going to be held accountable for speculative analysis?

Posted by: Soap MacTavish at June 28, 2012 12:49 PM (vbh31)

67 I'm still unclear on the Roberts/Kagan/Breyer part.

I thought that Kagan and Breyer said that the gov't could threaten and withholds from the states. Ginsburg's dissent claimed that it was a 7-2 vote the other way

Posted by: The Q at June 28, 2012 12:49 PM (B/yDO)

68 So if we are talking conspiracy theories what about the decision to delay the announcement until the day of the Holder vote....

Posted by: SoCalMe at June 28, 2012 12:50 PM (s72/N)

69
Complex??

Both AZ and ACA were no-brainers.

Roberts is as much of a liberal dunce as Kagan and the others.

Posted by: soothsayer at June 28, 2012 12:50 PM (F/kuF)

70 "Posted by: Lauren at June 28, 2012 12:43 PM (hNLFW)"


Will you marry me?

Posted by: Exile at June 28, 2012 12:50 PM (bR7nX)

71 Roberts was red eyed? Boo hoo. He just screwed our country over because he is a pussy. I hope he can never look at himself in the mirror again.

Posted by: Lauren at June 28, 2012 12:51 PM (hNLFW)

72 Whether Roberts ruled under duress or his conscience makes no matter. He still sold the country out. He will have to be punished for that by being held up to ridicule at every opportunity and by being sure that we tarnish his name as much as we possibly can in every way we can. If he is movable by such tactics we have to use them.

Also, bitterness and revenge is all that is left to us so we might as well enjoy it.

Posted by: Voluble at June 28, 2012 12:51 PM (eOimU)

73 47 17 I think that once everyone has a chance to read Roberts' opinion and has calmed down a bit from the initial shock, it will be revealed that Roberts isn't the traitor he first appeared to be.

Cooler heads prevail.

Both Redstate and The Weekly Standard are already writing to that effect.

*********

One thing...it takes a damn while to read it.

Posted by: tasker at June 28, 2012 12:51 PM (r2PLg)

74 Oh, my bad.

So Ginsburg and the Wise Latina were the ones saying that the Feds could rape the states.

Posted by: The Q at June 28, 2012 12:51 PM (B/yDO)

75 But I thought he said f.u. to my state of Arizona just so he wouldn't be called a partisan.

It drives me crazy watching Obama right now repeating we can keep our current health insurance. Our family already lost the plan we were on through our employer, a large hospital, as the plan we chose did not meet ObamaCare regs.

Posted by: MostlyRight at June 28, 2012 12:51 PM (ZG8Ti)

76 Doesn't the EPA use the Commerce Clause as an excuse for "air quality that crosses state lines" as their power tool? Would stripping governments power who use Commerce Clause as a tool, be the same mechanism to strip government agencies of power until they could be disbanded all together?

Posted by: Deli Llama at June 28, 2012 12:51 PM (uv9eO)

77 Or did Robert's do us a favor and seal the fate of Obama being a one termer?

Posted by: The James Bond Coundown Guy at June 28, 2012 12:49 PM


Maybe so, but you don't still think that "one term" will run only four years, do you?

Posted by: MrScribbler at June 28, 2012 12:51 PM (MQc8e)

78

The Supreme Court has basically done a "Fixed It For You"...for Congress.

This is what I am still gobsmacked about.
I don't ever remember them doing something like this.

Seems like they were usually more concerned with looking at what was before them....and ruling specifically on what was before them.
Not doing a "here, we fixed this for you" type of ruling.

Posted by: wheatie at June 28, 2012 12:52 PM (0T8H7)

79 This case was so simple and clear cut that the Court's notorious swing voter was unequivocal in his dissent!

Posted by: soothsayer at June 28, 2012 12:52 PM (4Ljxa)

80 Roberts said we can do it:

TAX LAWYERS.

And tax them to hell.

Posted by: AmishDude at June 28, 2012 12:52 PM (T0NGe)

81
"Chairman Ryan just said he thinks they could repeal 80% of ObamaCare
under reconciliation; the rest would require 60 votes. Ultimately, it is
for the Senate Parliamentarian to decide."

The Vice President can overrule the Parliamentarian.

Posted by: Galactic Overlord Reince Priebus at June 28, 2012 12:52 PM (RfcVE)

82 >> Being a woman is no longer a pre-existing condition.

Wait, she's a tranny? Do her grandkids know?

Posted by: EeyoreRadish at June 28, 2012 12:52 PM (/kI1Q)

83
This explanation from Volokh makes sense.

Roberts tortured logic in his opinion to the point that it died. The mandate IS a tax so that he could uphold it, but it ISN'T a tax that one has to pay and then sue to recover ... or something.

ZeroHedge has a post featuring Rick Santelli's take from this morning: the process is now back where it should be, as a de facto referendum that voters will decide in November. Exactly right.

I'm more hopeful now than I was yesterday that Obama will be a one-term president ... even though this decision was a travesty. Or - maybe *because* is was a travesty.

Posted by: crisis du jour at June 28, 2012 12:52 PM (J1eJz)

84 The part of the opinion that addresses why it’s supposedly OK to tax you for existing is at page 41-42. Roberts’ reasoning goes that because the government can encourage home purchases with tax incentives, it can also encourage healthcare purchases with tax incentives. He completely ignores that the former incentive is based on a voluntary choice, a home purchase, and the latter incentive is based on not doing anything at all. He begs the question and he does so badly.

Posted by: wte9 at June 28, 2012 12:52 PM (ZL7LA)

85 >>He got all of the Liberals save Ginsburg to sign off on--



Congress does not have this power under--





The Commerce Clause.

_____

I really don't think he did. That part of the opinion (III-A) was written by Roberts alone and is not "the opinion of the court."

Posted by: angler at June 28, 2012 12:52 PM (SwjAj)

86 Chairman Ryan just said he thinks they could repeal 80% of ObamaCare under reconciliation; the rest would require 60 votes. Ultimately, it is for the Senate Parliamentarian to decide.


Screw the Senate Parliamentarian, the Democrats certainly would. They can completely ignore the Parliamentarian and any nonsensical reconciliation rules if they so desire, the question is would they, and the answer to that is almost certainly not. Unfortunate, since the rules were flouted every step of the way in the passage of this monstrosity.

Posted by: Ghost of Lee Atwater at June 28, 2012 12:52 PM (JxMoP)

87 I suspect that Roberts switched because he felt that he could control the opinion better if he wrote it for the liberal wing and let the conservative wing write their own opinion(s).

Posted by: cthulhu at June 28, 2012 12:52 PM (kaalw)

88 incidentally, Roberts is a good example of why it's foolish for some to keep hoping Gen Petraeus would run for president. You don't know these people. And the prudent thing to do is always assume these political appointees will favor big government power.
Posted by: soothsayer at June 28, 2012 12:47 PM (QhsAJ)


Yeah I agree, when I served I never met a high ranking officer that was not a big fan of big government. That is how the military survives on largess of big government.

Posted by: robtr at June 28, 2012 12:52 PM (MtwBb)

89 http://en.wikipedia.org/wiki/Gabelle

Posted by: LiveFreeOrDie at June 28, 2012 12:52 PM (6eu/y)

90 There is still pending litigation re: the contraception mandate.

This isn't over yet.

Posted by: Gran at June 28, 2012 12:53 PM (p8FXV)

91 >>>Complex??
Both AZ and ACA were no-brainers.

If course they were, which is why Breyer and Three-Dog Night voted the way they did. Theyre fucking idiots.

By "complex" I mean the politics of it. You gotta get 5 votes one way or the other, and there is more horsetrading at SCOTUS than in the Congress, sometimes.

Posted by: Herr Morgenholz at June 28, 2012 12:53 PM (zlvkY)

92 "Cooler heads prevail."

Just once I would like to see hotter heads prevail.

Posted by: schizoid at June 28, 2012 12:53 PM (RAWKi)

93 Roberts the idiot just gave the feds the power to compel any private transaction as long as it can be construed as a tax, in perpetuity. He also made bills of attainder constitutional.

Posted by: Vashta Nerada at June 28, 2012 12:53 PM (HLFzM)

94 Keep your pudding supplies chilled everybody. We'll have our chance to dip soon enough. Taxation without representation didn't stand the first Patriot's ire, and the new Patriots will lay waste to this iteration of it soon enough.

Posted by: dfbaskwill at June 28, 2012 12:53 PM (ndlFj)

95 Oh, and ace's comment about abortion made me think of this...

Remember thay in China it isnt illegal to have a second child, you just have to pay a $6000 fine to do it. It's when you can't pay the tax that they kidnap you, abort your 7 month old baby, and rip out your uterus.

Posted by: Lauren at June 28, 2012 12:53 PM (hNLFW)

96 I'm less interested in Roberts and Romney, more interested in how Congressional and Senate candidates react. I want EVERY aspirant R candidate to say they're voting for repeal, if elected. I want EVERY D candidate to be made to declare what they will do.

Then we'll have a fair hearing on this topic. We weren't going to get it from the Supreme Court bench.

Posted by: BurtTC at June 28, 2012 12:54 PM (TOk1P)

97 posted this in the romney speech thread comments, but our CJ deserves another defence. square-quoting "man" without really knowing? >.

i know it was unpopular yesterday, but that politico thing about obamacare being overturned helpful to romney?

remember, this here is an incredibly unpopular law.

maybe john roberts is just a sly old fox...PERHAPS the arguments came down to a choice between a) unconst mandate with upholding the exchanges that wld break the gov't without the mandate, and b) roberts switching to uphold even the mandate itself...but then writing the opinion that calls it a TAX and makes obama the biggest TAX-RAISER EVAR.

i mean, think about it...roberts has GOT to know that the biggest tax in the history of american legislation has GOT to be an unpopular thing "in this economy".

you may find fault with the analysis above, saying that choice (a) of the dilemma wouldn't be possible, because after all, to sever the mandate and uphold the exchanges would BREAK the country...who can afford to insure those with pre-existing conditions without the mandate? i mean, what a STUPID piece of legislation without the mandate!

but it's not roberts' job to rule to rule on the stupidiity of any given piece of legislation...only its constitutionality. perhaps he simply could find nothing in the heath-exchange part of the law to really justify striking the entire law down as unconstitutional...IANAL, but it seems, while impracticable and self-destructive without the mandate, that the gov't may indeed constitutionally retain some ability to force states to offer at least health-insurance exchanges under commerce, right?

so maybe roberts simply couldn't bring himself to find other parts of the law unconstitutional...and so to reserve for himself the right to author the ruling -- and determine the terminology to be used on describing obamacare's mandate -- he decided to uphold the mandate as well...making sure to call it a "tax".

i mean, does anyone think any of the other 4 justices who voted to uphold the mandate would have requited for it to be a "tax" to be constitutional, given their impassioned defences of far-reaching Commerce powers during the orals?

i haven't read the decision yet, in full disclaimer. but it seems plausible of our venerable supreme court chief justice.

Posted by: jimi ray at June 28, 2012 12:54 PM (79EF9)

98 There is still pending litigation re: the contraception mandate.



This isn't over yet.

Posted by: Gran at June 28, 2012 12:53 PM


Bark Obama is shaking in fear over making Kathryn Jean Lopez angry, right?

Posted by: MrScribbler at June 28, 2012 12:54 PM (MQc8e)

99 I think that once everyone has a chance to read Roberts' opinion and
has calmed down a bit from the initial shock, it will be revealed that
Roberts isn't the traitor he first appeared to be.



Cooler heads prevail.



Both Redstate and The Weekly Standard are already writing to that effect.

---------------------------------------



Agreed. 100% !



Roberts is smarter than this. I don't see him as being weak.



Now clever? Oh yeah!!!

So Thomas, Alito and Scalia are checkers-playing idiots?

Posted by: andycanuck at June 28, 2012 12:54 PM (nrW1y)

100 Thank god unborn children are no longer a pre-existing condition and my tax dollars will go towards Shop-Vacing millions of those fucking inconveniences out from between the diseased pissflaps of the 99%.

Posted by: Empire of Jeff at June 28, 2012 12:54 PM (oihrP)

101 I’m living’! I’m breathin’! Bawdy Jeebus in a black robe, I’m more limber than Stretch Armstrong!

Posted by: The US Constitution at June 28, 2012 12:54 PM (xDqmM)

102
holy smokes does Roberts realize the implications of a precedent of this magnitude??

I don't believe he does. Roberts is a political dunce.

Posted by: soothsayer at June 28, 2012 12:54 PM (p5cc/)

103 A tax on all blogs considered HQ's

Posted by: Adc at June 28, 2012 12:54 PM (JJJ5P)

104 Herr,
This is precedent setting and is NOT good for the country.
There is no logical way to square what Roberts attempted to square between the commerce clause's plenary powers and the taxing powers of the congress. He is making an assumption that federal statute, and that is what this is, cannot be implemented with both a tax and jail as potential remedy for choosing NOT to purchase healthcare. While it is not presently schemed this way, Robert's own opinion does not take into account of the wide authority of implementation and thus tries to find a fig leaf to set apart this as only a Tax.
This is very, very bad law despite the potentiality that we could repeal Obamacare.

Posted by: Scandia at June 28, 2012 12:56 PM (QWOh7)

105 For everyone screaming about Roberts, please explain to me how it would have helped if he was in the 4-justice minority? Then he wouldn't have been able to write the opinion--perhaps Ginsburg or a 'wise Latina" would have. I'm sure the commerce clause would have no limitations in that case.

In warfare sometimes you have to limit your losses when you know you are going to lose. I'm not happy, but the derision should be focused on Kennedy (and the other liberal justices) more than Roberts.

Posted by: JWD at June 28, 2012 12:57 PM (y5bPZ)

106 Are you joking?

Of course it's constitutional.

Those old photos I have of Roberts didn't hurt either.

Posted by: Nasty Pelousy at June 28, 2012 12:57 PM (TLHj1)

107 As pissed off as I am, I do think that Justice Roberts succumbed not to political pressure but to precedents where the Supreme Court defers to the legislative and executive branches if there is some ground to uphold the law. As noted above, he did not expand the Commerce Clause, rather, found a means of deference. He has also given the Republicans a rallying cry like in 2010 as well as the ObamaCare Tax increase. All is not lost and we'll need to fight like our nation depends on it because it does.

Posted by: eureka! at June 28, 2012 12:57 PM (xCpfo)

108 This has been a bad 3 weeks for the rule of law and the Constitution...

Posted by: TFC3Tweets at June 28, 2012 12:58 PM (Umv2b)

109 @98

Huh?

Posted by: Gran at June 28, 2012 12:58 PM (p8FXV)

110 Ace writes: Can they tax me at a high rate if I own a gun?

Every new gun sold includes a "hidden" excise tax to the Federal gov't. So, yes.

Posted by: Boston12GS at June 28, 2012 12:59 PM (0VqvZ)

111 Considering Kennedy wanted to scrap the whole damn thing, there's no reason to think Roberts would be in the minority if he voted to repeal, JWD.

Posted by: Lauren at June 28, 2012 12:59 PM (hNLFW)

112 All you need to know to go hmmmm is that Justice Kennedy was squarely in favor of striking the whole law down...

Kennedy ain't not Conservative...

Posted by: TFC3Tweets at June 28, 2012 12:59 PM (Umv2b)

113 incidentally, Roberts is a good example of why it's foolish for some to keep hoping Gen Petraeus would run for president.

Also why it's foolish to nominate a newbie for Senate. The Tea Party learned the hard way.

Posted by: AmishDude at June 28, 2012 12:59 PM (T0NGe)

114 JWD at June 28, 2012 12:57 PM

What? He would have been in the majority.

Posted by: wte9 at June 28, 2012 12:59 PM (ZL7LA)

115 Robert's Switch II, the switch in time that saved nine.

Here's the first.

The first Justice Roberts saved the New Deal. What is the second saving?

Posted by: jeanne at June 28, 2012 12:59 PM (GdalM)

116 >>>Herr,

This is precedent setting and is NOT good for the country.

No shit. I think Roberts took this path instead of the other option, which was Commerce Clause says we can.

Posted by: Herr Morgenholz at June 28, 2012 12:59 PM (zlvkY)

117 The government may now, per Justice Roberts, assign special taxes on
people if they do not live their lives the way the government prefers


Are you serious? This whole thing sucks ass, but there is nothing new about the concept. The government mandates social security, we don't get to opt out voluntarily. The government mandates medicare/medicaid and we have to pay for it. The only thing novel is the court's defining it as what it obviously is - a tax - despite the administrations smarmy fucking lies to the contrary.

Posted by: Gristle Encased Head at June 28, 2012 01:00 PM (+lsX1)

118 JWD,
Not sure I follow on this.
Roberts consideration was political and ego as evidenced in the legal obfuscation and weak compare and contrast he made between the commerce clause powers and tax powers of congress.
Roberts decision was reversed engineered so he could attach to the affirmative to uphold Obamacare.

Posted by: Scandia at June 28, 2012 01:00 PM (QWOh7)

119 The words Obamacare and TAX will now be joined at the hip.-Hell they're siamese twins.

Posted by: Little Boomer at June 28, 2012 01:00 PM (3qM/W)

120 The legacy of Chief Justice Roberts, as he will be remembered forever by history:

The man who voted to uphold The Broccoli Mandate.

Posted by: Arbalest at June 28, 2012 01:00 PM (XpbFW)

121 >>>I thought that Kagan and Breyer said that the gov't could threaten and withholds from the states. Ginsburg's dissent claimed that it was a 7-2 vote the other way

they joined the conservatives in holding this was unconstitutional. However, the liberals found that they could simply modify the language of the law to bring it into comportment with the constitution

Basically they ruled they could re-write this part to make it okay.

The conservatives, on THAT point, I think disagreed, and thought the law had to be tossed.

but then they thought that for other reasons.

Posted by: ace at June 28, 2012 01:01 PM (aw5Tx)

122 WE'LL HAVE TO WATCH THE FINAL OPINION. IF THESE DISCREPANCIES ARE REMOVED, WE'LL KNOW HE'S A SPINELESS BASTARD.

Posted by: reid at June 28, 2012 01:01 PM (JwUAW)

123 86 Screw the Senate Parliamentarian, the Democrats certainly would. They can completely ignore the Parliamentarian and any nonsensical reconciliation rules if they so desire, the question is would they, and the answer to that is almost certainly not. Unfortunate, since the rules were flouted every step of the way in the passage of this monstrosity.

He is talking about a potential Republican-controlled 113th Congress with a Republican White House.

Posted by: Miss80sBaby at June 28, 2012 01:02 PM (d6QMz)

124 This must be fixed by an amendment. Otherwise we are subjects.

Posted by: Bevel Lemelisk at June 28, 2012 01:02 PM (IS2o0)

125 Huh?

Posted by: Gran at June 28, 2012 12:58 PM


Go check out NRO (if you have a strong stomach). Their prime motivation these days seems to be to natter about what matters most to teh Catholics. Never mind treason in our government; what did Archbishop O'Doul say to KJL after Mass last Sunday?

Posted by: MrScribbler at June 28, 2012 01:02 PM (MQc8e)

126 On the upside, I guess we can tax the hell out of abortion now.

Posted by: Rodney King at June 28, 2012 01:02 PM (e8kgV)

127 By the way, why didn't Elena Kagan, the ugliest woman to sit on the Court since Warren Berger, recuse herself?

Posted by: Herr Morgenholz at June 28, 2012 01:03 PM (zlvkY)

128 OT,, but important

House debates on Holder Contempt vote happening right now.

Posted by: Lauren at June 28, 2012 01:03 PM (hNLFW)

129 There is something hidden with this decison and I don't think it is bad. I don't know what it is, but Robert's is not that stupid...Something there, something hidden .....

Posted by: The James Bond Coundown Guy at June 28, 2012 01:03 PM (48wze)

130 If the federal government can force you into the marketplace to purchase a product, can they force you into the marketplace to "consume" a product?

Can the federal government force you to receive treatment? Back in the old days, people with infectious diseases were quarantined, that is they were confined to their house by force of law. In the early days of the aids epidemic there was talk of bringing back quarantining but it went nowhere.

Well, if the quarantining laws were constitutional back in the day, could forcing treatment upon someone today be constitutional?

We already have laws requiring immunization against various diseases.

Yeah it's just me imagining a worst case scenario, but why couldn't the federal government force treatment upon unwilling patients, while at the same time withholding treatment from the aged or infirm?


Posted by: Boots at June 28, 2012 01:04 PM (neKzn)

131 Both Redstate and The Weekly Standard are already writing to that effect.
Which tells you everything you need to know about those who put partisan interests ahead of principle.

On the whole, the right is no more consistent on anything than the left is. It's always OK when they do it.

Posted by: Entropy at June 28, 2012 01:04 PM (TULs6)

132 Oh fart, the link thingy doesn't work..oh well, it's in wiki.

Kinda bad we have to rely on Romney to get this abomination repealed. We're going to have to turn the heat up on him and never relent, or he'll think the public is accepting obamatax and nothing will change;

Posted by: jeanne at June 28, 2012 01:04 PM (GdalM)

133 Because Roberts pussed out and said she didnt have to, Herr.

Posted by: Lauren at June 28, 2012 01:04 PM (hNLFW)

134 I tend to equate the "cooler heads will prevail" meme with supplication.

Posted by: Soap MacTavish at June 28, 2012 01:04 PM (vbh31)

135 >>>House debates on Holder Contempt vote

Rest assured, Mr. Holder, that our current pissy moods will not effect our votes in any way.

Posted by: Darrell Issa at June 28, 2012 01:05 PM (zlvkY)

136 If Roberts was strong-armed into voting for this abortion, then we know we now live in a totalitarian state. The tree of liberty is thirsty

Posted by: The Tree of Liberty at June 28, 2012 01:05 PM (mLZe7)

137 Where can I get some government-funded choom? For my *cough* health and disposition going forward?

Posted by: Fritz at June 28, 2012 01:05 PM (/ZZCn)

138 I do not write this glibly: Dred Scott II

Posted by: soothsayer at June 28, 2012 01:05 PM (3dufx)

139 Oh yes... TheWeekly Standard and Red State as dispositive sources of constitutional commentary... let's just get drunk now, eh?

Posted by: Scandia at June 28, 2012 01:05 PM (QWOh7)

140 Look, they had a choice: throw this out as the constitutional violation it so obviously is and invite thousands of similar challenges to established long term law like farm subsidies, medicare, and so on... or pretend its okay. They chose the coward's course. It was that or question previous supreme court decisions and that simply is not done.

Posted by: Christopher Taylor at June 28, 2012 01:05 PM (r4wIV)

141 2700 pages.... 2700 pages...

You don't have to read it to strike it down on general principal that no law should be that thick...

Posted by: phreshone at June 28, 2012 01:06 PM (Bxm/r)

142 I find the fact that Scalia frequently refers to Ginsburg's "dissent" to be...odd. And perhaps revealing.

Late vote-switching has happened before. Kennedy famously switched his vote in Planned Parenthood v. Casey from upholding the abortion restrictions (and thus overturning Roe) to striking them down at the last minute.

Posted by: Jeff B. at June 28, 2012 01:06 PM (FCfv5)

143 He is talking about a potential Republican-controlled 113th Congress with a Republican White House.


I got that, but he is still saying that they could get rid of 80% and the rest would need 60 votes even with a Republican Senate. I am saying that I don't care what the Senate Parliamentarian rules, all of it should go whether they have 60 votes or not. If they have 51 votes, kill it, every bit.

Posted by: Ghost of Lee Atwater at June 28, 2012 01:06 PM (JxMoP)

144 @125

I'd have thought there would be a better chance of getting it thrown out on 14th Amendment grounds.

IOW - Muslims are exempt, but Catholic companies are forced to buy contraception?

Posted by: Gran at June 28, 2012 01:06 PM (p8FXV)

145 [deleted. I think Kathy was trying to suggest that obama thugs threatened Roberts, but it sounded like she was threatening him... just mind your wording please. -- ace]

Posted by: Kathy from Kansas at June 28, 2012 01:06 PM (F0o5k)

146 "Kinda bad we have to rely on Romney to get this abomination repealed."

Never going to happen. Never. Congress won't give up control of 20% of the economy and a multi-trillion dollar micromanagement of your life. Never.

Posted by: Christopher Taylor at June 28, 2012 01:06 PM (r4wIV)

147 There isn't anything hidden in the decision.
Robert's decided on ego and posterity i.e. his posterity within Academia.

Posted by: Scandia at June 28, 2012 01:08 PM (QWOh7)

148 Kilgore has arrived...

Posted by: Soap MacTavish at June 28, 2012 01:08 PM (vbh31)

149 Cleanup on 145 ...

Posted by: Arbalest at June 28, 2012 01:08 PM (XpbFW)

150
I still don't see where the Court ruled that the tax itself is constitutional. I don't think that was the issue before the Court.

The USCon prohibits "direct", or poll taxes--taxes you have to pay because you draw breath. The income tax was an amendment. This is not an income tax--it is a direct tax. Why is it legal?

Posted by: spongeworthy at June 28, 2012 01:08 PM (r5w1L)

151 #145 -- that's going way the fuck too far.

Posted by: MrScribbler at June 28, 2012 01:09 PM (MQc8e)

152
The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.

Posted by: Thomas Jefferson at June 28, 2012 01:09 PM (pUOpM)

153 "Kathy from Kansas" is the oddest Mau Mau name I've ever heard.

Posted by: Herr Morgenholz at June 28, 2012 01:09 PM (zlvkY)

154 With 51 Senators, GOP can eliminate mandate
http://bit.ly/LRD4cV

"But repealing the individual mandate takes only 51 votes (50, if a Republican is the vice president). You see, Senators can’t filibuster a bill passed under 'budget reconciliation.' Since Chief Justice John Roberts ruled today that Obama’s individual mandate is a tax, Republicans, it seems to me, could simply lower the tax for not having health insurance down to $0.00, as a matter of budget reconciliation."

Posted by: Miss80sBaby at June 28, 2012 01:10 PM (d6QMz)

155 1. Obama's argument that Congress could use its power to regulate
commerce between the states to require everyone to buy health insurance
was rejected by the court.

2. The law was upheld on a basis — the taxing power — that the Administration didn’t advance.

Posted by: Jay at June 28, 2012 01:10 PM (3LaGb)

156 I think 145 was saying how Obama threatened Roberts, not making such a threat now. (If I'm wrong, please ban them post-haste of course).

Posted by: Ian S. at June 28, 2012 01:10 PM (tqwMN)

157 The government may now, per Justice Roberts, assign special taxes on people if they do not live their lives the way the government prefers.

That is why the Republic is dead and gone. We are now a fascist nation

Posted by: Colonel Pooteh at June 28, 2012 01:10 PM (t2cnv)

158 @117, no this is different. This is not participation in a government program; this is buying a private service or being fined.

This is the government mandating you buy a GM, solar panels for your roof, or propaganda books for your children. If you don't, they'll fine you.

This isn't a slippery slope, it's here. We need a party that is willing to reform the system and fight this crap.

Is that the GOP? I haven't seen anything to indicate it is. All I hear about is moneybombs and vague promises to repeal Obamacare. And fear of being too fiery, of needing to strike a moderate tone.

Posted by: Bevel Lemelisk at June 28, 2012 01:10 PM (LnQr8)

159 Roberts is smarter than this. I don't see him as being weak. Now clever? Oh yeah!!!So Thomas, Alito and Scalia are checkers-playing idiots?
Posted by: andycanuck at June 28, 2012 12:54 PM (nrW1y)

yeah, i was not going to mention it.

Posted by: willow at June 28, 2012 01:10 PM (TomZ9)

160 In a perfect world, #145 would be hunted down and prosecuted.

Posted by: Soap MacTavish at June 28, 2012 01:10 PM (vbh31)

161

Agreed that is was the coward's course. Stare Decisis,
Precedent uber alles.
It would have indeed called into question a multitude of decisions based on Federal over reach.

A massive disapointment. But a bit of a quick poll of people in the office, and most people are OK with this. So the consideration that the ballot box offers us a resolution may be a false hope.

Posted by: Reader C.J. Burch writes..... at June 28, 2012 01:10 PM (RFeQD)

162
145 ... Disgraceful.

Posted by: Grumpy the Younger at June 28, 2012 01:10 PM (jts1f)

163 I think KfromK is saying that that's what Obama said to Roberts...at least that's how I read it.

Posted by: Lauren at June 28, 2012 01:11 PM (hNLFW)

164 Did Roberts Originally Vote To Strike The Entire Law, But Feel "Tremendous Pressure" And Reverse His Vote?
Um, yes.
Clearly.

Posted by: Jay at June 28, 2012 01:11 PM (3LaGb)

165

The idea of having to pay for the insurance for the grown kids of fatcat government bureaucrats....just pisses me off.
If people in the private sector want to cover their grown kids....I don't care.
They should have to pay moreto do that, though.

But as it stands now....the fat-assed GSA douchebags can stick us with paying for the insurance of their fat-assed kids.

Posted by: wheatie at June 28, 2012 01:11 PM (0T8H7)

166 What gets me is how lousy the solicitor's case was and how he got mocked and laughed at so much by the judges... and they went ahead and ruled for him anyway. That on its own is enough to prove that it wasn't about the merits of the case but the politics and potential legal consequences.

Posted by: Christopher Taylor at June 28, 2012 01:11 PM (r4wIV)

167 ACE 145 needs to be wiped

Posted by: willow at June 28, 2012 01:12 PM (TomZ9)

168
How long do those in power expect this Repub..., um...Democ..., um...Whatever The Fuck It Is Anymore to NOT fly apart at the seams? Maybe it's best that we do. Half of us don't care about Liberty. The other half won't stand for the encroaching Fascism. How the hell do youreconcile that?

Posted by: Jaws at June 28, 2012 01:12 PM (4I3Uo)

169 154 M80sB,

I thought reconciliation can only be done if it lowers the deficit. And with the way the CBO operates, lowering the taxes would be seen as expanding the deficit/

Posted by: The Q at June 28, 2012 01:13 PM (B/yDO)

170 I think KfromK is saying that that's what Obama said to Roberts...at least that's how I read it.

Posted by: Lauren at June 28, 2012 01:11 PM


There are certain things that should not be said.

Posted by: MrScribbler at June 28, 2012 01:13 PM (MQc8e)

171 I think 145 was saying how Obama threatened Roberts, not making such a threat now.

Does it matter? You DO NOT post shit like that anywhere, anytime, for any reason.

Posted by: Soap MacTavish at June 28, 2012 01:13 PM (vbh31)

172 so, i just want to make sure people know, the obamacare ruling actually LIMITS the damage that the federal gov't can do under commerce...just about the only silver lining in the ruling.

[quote]

15.
2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the
Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.
(a) The Constitution grants Congress the power to “regulate
Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate
commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce

Cite as: 567 U. S. ____ (2012) 3
Syllabus
power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by
purchasing a product, on the ground that their failure to do so affects
interstate commerce.
Construing the Commerce Clause to permit Congress to regulate
individuals precisely because they are doing nothing would open a
new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do.
Upholding the Affordable Care Act under the Commerce Clause
would give Congress the same license to regulate what people do not
do. The Framers knew the difference between doing something and
doing nothing. They gave Congress the power to regulate commerce,
not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and
enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

[end quote]

so that's a very beneficial part of the opinion. and i guess he's made obama the biggest taxer in the history of ever.

still, it seems gross to read "chief justice john roberts found that the mandate can be upheld under commerce's power to tax", ugh. but i have faith. ~.~

Posted by: jimi ray at June 28, 2012 01:13 PM (79EF9)

173 If you think businesses will respond well to having Washington DC micromanage their benefits packages, that this won't cost them more and destroy private insurance... I have a bridge to sell you.

Posted by: Christopher Taylor at June 28, 2012 01:13 PM (r4wIV)

174 For everyone screaming about Roberts, please explain to me how it would have helped if he was in the 4-justice minority?

What 4 justice minority? If Roberts says the mandate was unconstitutional he would've had a 5 justice majority. We wouldn't have seen any of the 4 who wanted to throw out the whole thing switch to saying the mandate was fine because Roberts disagreed on severability. Instead we would've seen a ruling throwing out the mandate, one limiting Medicaid, and the rest of the law would've stood.

Posted by: Colonel Pooteh at June 28, 2012 01:14 PM (t2cnv)

175
re: the fate of our republic

we have still learned nothing from Greece

Washington DC continues the march down the same path as the failed Eurozone.

Posted by: soothsayer at June 28, 2012 01:15 PM (/eLjI)

176 I thought reconciliation can only be done if it lowers the deficit. And with the way the CBO operates, lowering the taxes would be seen as expanding the deficit/


Lowering the tax to $0.00 doesn't even address any of the other problems with the law.

Posted by: Ghost of Lee Atwater at June 28, 2012 01:15 PM (JxMoP)

177 Memory fails me. Did Obamacare originate in the Senate?
If so, aren't "tax" measures legally supposed to originate in the House?

Posted by: Michael Rittenhouse at June 28, 2012 01:15 PM (2Oas0)

178
163 I think KfromK is saying that that's what Obama said to Roberts...at least that's how I read it.
Posted by: Lauren at June 28, 2012 01:11 PM (hNLFW)


I hope so ... But that sort of thing needs to be made clear ... Quotes ... Or sock puppets etc.

Posted by: Grumpy the Younger at June 28, 2012 01:16 PM (jts1f)

179 Hey, if they can tax behavior, how about a million dollar tax for abortions?

Posted by: Junshin at June 28, 2012 01:16 PM (20NzC)

180 If you think businesses will respond well to having Washington DC micromanage their benefits packages, that this won't cost them more and destroy private insurance... I have a bridge to sell you.


Especially when proponents of the bill were openly admitting that the whole thing was a trojan horse designed to destroy private insurance.

Posted by: Ghost of Lee Atwater at June 28, 2012 01:16 PM (JxMoP)

181 Thank you Ace. This is exactly what I've been ranting on on my Facebook page. The power to tax is the power to destroy. Now that inactivity can be taxed, what cannot be taxed? Will we be forced to go for checkups every six months and each pound we are under or overweight will be taxed. What about owning the wrong car? What about having too many kids? Where are the limits to government's power to destroy?

Posted by: NJRob at June 28, 2012 01:17 PM (FVp26)

182 In a hilarious side note, Scalia actually used the vulgar phrase "lick and a promise" in his dissenting opinion.

For those who don't know, that's a old phrase referring to the girl who licks your cock and promises more "once we're married," only to back out once the ring is on the finger. It's amazingly inappropriate for a SCOTUS opinion.

Posted by: Jeff B. at June 28, 2012 01:17 PM (FCfv5)

183 Any representative we can convince to start introducing bills to tax abortions, listen to talk radio, watch soccer, etc...etc..

Similar to how the leftists thought they were being oh-so-cute with their whole "no vasectomy/viagra unless have an ultrasound first" sort of bills recently.

Would help highlight the insanity of where this can lead.

Posted by: Coldstream at June 28, 2012 01:17 PM (qrCKL)

184 Quotes to ponder:

"My friends, you have nothing to fear from an Obama presidency."

and

"The Founding Fathers created the Presidency to keep an eye on Congress, and the Congress to keep an eye on the President; and the Supreme Court to keep an eye on both of them."

Yeah. Right.

Posted by: Wolfus Aurelius at June 28, 2012 01:17 PM (exvgC)

185 Maybe Roberts was trying to make it up to Obama for screwing up the Oath of Office?

Posted by: Junshin at June 28, 2012 01:17 PM (20NzC)

186 If Roberts wanted his name in history it will be carved on my gravestone.

With his vote he has probably denied me the healthcare I have now.


Posted by: mpfs at June 28, 2012 01:18 PM (iYbLN)

187
After the decision, the Republican Governors Association said that
nothing should be done by the states until after the election, a clear
signal that they believe a GOP president, House and Senate will kill the
health care reform pushed through by Democrats and opposed by
Republicans.

RGA Chairman Bob McDonnell said, “Today’s ruling crystallizes all
that’s at stake in November’s election. The only way to stop Barack
Obama’s budget-busting health care takeover is by electing a new
president. Barack Obama’s health care takeover encapsulates his
presidency: Obamacare increases taxes, grows the size of government and
puts bureaucrats over patients while doing nothing to improve the
economy.”

Posted by: Rodney King at June 28, 2012 01:18 PM (e8kgV)

188 >>so, i just want to make sure people know, the obamacare ruling actually
LIMITS the damage that the federal gov't can do under commerce...just
about the only silver lining in the ruling.

Nope. That section (III-A) was written by Roberts and no one joined in that opinion. No. One. It is his opinion and not the opinion of the Court.

Posted by: angler at June 28, 2012 01:18 PM (SwjAj)

189 Agreed it shouldnt have been said, but there's a big (probably criminal) difference between making thst threat and saying that someone else made the threat.

Posted by: Lauren at June 28, 2012 01:18 PM (hNLFW)

190 >>>so that's a very beneficial part of the opinion. and i guess he's made obama the biggest taxer in the history of ever.

Except that Roberts' Commerce Clause section of the opinion has no judicial force. It's him writing for himself alone. The only parts that are enforceable precedent are the Anti-Injunction Act section and the "Mandate upheld as a tax" section. Everything else is dicta or dissent.

Posted by: Jeff B. at June 28, 2012 01:19 PM (FCfv5)

191 I like that tax abortions idea.

Also, I take it at this point that we're actually going to have to have a Constitutional amendment to prevent Congress from "taxing" us into purchasing other things now?

Posted by: Iblis at June 28, 2012 01:19 PM (9221z)

192 "Memory fails me. Did Obamacare originate in the Senate?
If so, aren't "tax" measures legally supposed to originate in the House?"

Effectively, yes. The Senate version is what was passed into law, making it the official legislation. If this is a tax, it cannot be from the Senate. Not that it will matter. Judges will just find a way its okay anyway.

Posted by: Christopher Taylor at June 28, 2012 01:19 PM (r4wIV)

193
182 ... BRB, have to clean up the Mt.Dew I just spewed all over my screen!

Posted by: Grumpy the Younger at June 28, 2012 01:19 PM (jts1f)

194 Roberts' role, in a nutshell:

The Obama Administration, having never deigned to refer to the mandate as a tax until it became judicially necessary to do so, turned in an absolute botch of a case, through its Solicitor General, that had "Epic Fail" written all over it.

Kindly and accommodating Perfesser Roberts took their hash job, rewrote it and fashioned arguments where they had advanced none, and awarded them a "good, solid B+".

Un-effin'-believeable...

Posted by: Krebs v Carnot: Epic Battle of the Cycling Stars at June 28, 2012 01:19 PM (FcKXR)

195 143 I got that, but he is still saying that they could get rid of 80% and the rest would need 60 votes even with a Republican Senate. I am saying that I don't care what the Senate Parliamentarian rules, all of it should go whether they have 60 votes or not. If they have 51 votes, kill it, every bit.

I agree wholeheartedly that every bit of it should go. The biggest problem with your suggestion, though, is that it would give the Ds cover if they wanted to pass something worse than ObamaCare further down the road. It is so incredibly frustrating...

Posted by: Miss80sBaby at June 28, 2012 01:20 PM (d6QMz)

196
Fuck John Roberts, and every Communist piece of shit that voted with him.

Posted by: Sam Adams at June 28, 2012 01:20 PM (8gq9k)

197 I blame Bush.

Posted by: Beto at June 28, 2012 01:20 PM (BAnPT)

198 Quoting #177: "Memory fails me. Did Obamacare originate in the Senate?

If so, aren't 'tax' measures legally supposed to originate in the House?"

My thought, too, but then, I'm one of those old-fashioned guys that believe the Constitution is the supreme law of the land.

Posted by: Mr_Write at June 28, 2012 01:21 PM (VJUQK)

199 #145 needs to be hit with the BANHAMMER...way over the top

Posted by: Mjölnir the banhammer at June 28, 2012 01:21 PM (Jls4P)

200 My understanding from the initial media reports was that the vote on the tax clause was 6-3. If it was 5-4 with Roberts as the swing vote, he deserves all of the blame.

Posted by: JWD at June 28, 2012 01:21 PM (y5bPZ)

201 Remind me again who the stupid bitch was who let this abomination out of committee in the first place?

Was it Snowe or Collins?

Either way they both need to be tarred and feathered and locked in the stockade in the center of town for all to mock and abuse.

Posted by: mpfs at June 28, 2012 01:22 PM (iYbLN)

202 55

Agree completely!

Not a loss.. A win..just takes time to unwind!

Posted by: catman at June 28, 2012 01:22 PM (YKUmW)

203 again Obama referred to the US as the wealthiest nation on Earth.

what bullshit

we're in the hole $16 Trillion

Posted by: soothsayer at June 28, 2012 01:23 PM (Si5xx)

204 Yeah, ban and delete 145. Please. I'm all for tarring and feathering though. Run out of town on a rail.

Posted by: Christopher Taylor at June 28, 2012 01:23 PM (r4wIV)

205 Absolutely how Scalia's dissent reads. It is not very sharply written, as his dissents typically are. It's a pretty 'generic' discussion of the constitutional issues. I thought it strange that he referred to Ginsburg's opinion as the "dissent" (which technically it kind of is) but I don't know the usual practice for such things.

Scalia doesn't strenuously tackle Roberts' argument as one would expect. The dissent ends up looking pretty lifeless, albeit more correct than Roberts.

Posted by: Crispian at June 28, 2012 01:24 PM (uBMtY)

206 Since 145 was a hit-and-run, I formally retract my earlier misreading. Ban, and send the IP to the FBI.

Posted by: Ian S. at June 28, 2012 01:24 PM (tqwMN)

207 Lots of conjecture. I doubt it will ever come to light whether he did change his opinion. And regardless it matters not. It doesn't take someone in a black robe to tell us what we all know to be common sense. Where in the Constitution does it say the federal government can force people or companies to buy something against their own free will? Or coerce them into buying something by "taxing" them without using the word "tax"?

Posted by: Andrew at June 28, 2012 01:24 PM (HS3dy)

208 If Roberts was pressured to change his mind or not, it just doesn't matter a bit. Its not like we can vote him out of office, although there is this: if he can be pressured one way, he can another, perhaps. So he just opened himself up to massive letter and email writing campaigns.

Posted by: Christopher Taylor at June 28, 2012 01:25 PM (r4wIV)

209
So the takeaway here looks to be that electing Romney is the hill to die on.

GOTV is paramount, obviously. We need an unassailable majority to remedy the damage, and to keep Romney from tilting to the big gov or worse, liberal side.

If we prevail in that, it's incumbent for US--the constituents-to pressure the legislators to follow our wishes. More important now than ever before. They'll respond to pressure.

Meanwhile, as said earlier, the shitstorm is going to intensify, so be ready.

Posted by: irongrampa at June 28, 2012 01:26 PM (SAMxH)

210 Yes, "Kathy from Kansas" (no. 145) had quotes around her little speech. We were supposed to take it that O's thugs were threatening Roberts to get him to change his vote. Would have worked fine if she'd put "-- Obama's Chief Thug" or something like that right after it.

Posted by: Wolfus Aurelius at June 28, 2012 01:28 PM (exvgC)

211 Sorry Ace but Yes, the Fed can tax you for any damn thing they can dream up and have had that power since FDR made it fashionable to do so to farmers. Wilson gave him the sword in 1913 and he wielded it as much as he thought he could.Up till now most pols were just not ballsy enough to say it out loud but here the dems have rang the bell as loud as they can. You want to stop this then kill the IRS with a tax system that does not require one. Till then,live with it.Sorry.

Posted by: Rich K at June 28, 2012 01:29 PM (X4l3T)

212 I'm so mad. I'm not going to get any work done today.

Posted by: Andrew at June 28, 2012 01:31 PM (HS3dy)

213 In the early days of marijuana prohibition, they knew that the feds couldn't ban it, having just passed the alcohol prohibition by constitutional amendment.
So the feds imposed a huge tax on pot and then busted people for not paying the tax.
I seem to remember that the SCOTUS struck that down as obviously NOT a tax even though it was explicitly called that.
Then Scalia vote to uphold federal authority in Raich based on the commerce clause.
I'm getting REALLY disappointed in the sophistry of our ruling class.

Posted by: Whitehall at June 28, 2012 01:31 PM (FmPSC)

214
Until today my 'safety net' so to speak, my little peace of mind was Chief Justice Roberts.

I thought, well, at least we have this guy as Chief - a solid Constitutionalist.

That, in one minute at 10:15 am, was dashed. Gone.

*it also provided me a little consolation for Bush's shitty legacy.

All gone now.

Posted by: soothsayer at June 28, 2012 01:31 PM (ZGmNK)

215 This is a bad day, but mostly because of a "their team won and ours lost" thing. Had we won, the Dems would have had a rallying point and another "Bush/Gore" "Citizen's United" whinge to hang over us for decades. It's also hard to take because of the Dems gloating. However, I personally think this will seal Obama's fate in Nov. Think how sweet it will be to tweet "President Romney. Bitches!"

Posted by: babygiraffes at June 28, 2012 01:32 PM (h0KX8)

216
182
In a hilarious side note, Scalia actually used the vulgar phrase "lick and a promise" in his dissenting opinion.

For
those who don't know, that's a old phrase referring to the girl who
licks your cock and promises more "once we're married," only to back out
once the ring is on the finger. It's amazingly inappropriate for a
SCOTUS opinion.


Posted by: Jeff B. at June 28, 2012 01:17 PM (FCfv5)



Good God, that's the first I've ever heard of that particular interpretation of that phrase. I always heard it described as a half-assed cleaning job, hitting the table a lick with the dusting cloth and promising to do a better job later. Where the hell did you get that?

Posted by: Klawnet at June 28, 2012 01:32 PM (a/VXa)

217 "Scrapping the whole thing" would have been judicial activism.

What Roberts has done is scuttle the whole thing without saying so.

Congress will never vote for the taxes necessary to make this monster work.

Posted by: Cricket at June 28, 2012 01:34 PM (DrC22)

218 That paragraph from Eugene Volokh with all the ramifications thereof is absolutely bone chilling.

Posted by: starry at June 28, 2012 01:35 PM (oZfic)

219 Uh, they already did. The taxes are there already. If Roberts is playing the long game, he just punted on first and goal.

Posted by: ejo at June 28, 2012 01:35 PM (HzC9j)

220 Unlimited taxing power overwhelms and consumes the Commerce Clause.

Thanks John.


Posted by: Cream of Someyunguy at June 28, 2012 01:36 PM (aFxlY)

221 I guess you could call it a "tax loophole in the Constitution".

Funny how liberals have faith that the Constitution gives women having abortion a right to be left alone with their doctor to make the decision in privacy. But if you choose to deal with your medical care expenses in private with your own doctor, the government will seek you out and punish you for it.

It no longer matters what the laws and the Constitution says, we are now a nation ruled by naked political power. So you'd better go grab some before somebody else does.

God, I hate liberals.

Posted by: Socratease at June 28, 2012 01:36 PM (vaIln)

222
heh, even Rush is disgusted with Roberts and says he's a hack

Posted by: soothsayer at June 28, 2012 01:36 PM (eAba4)

223 Klawnet at June 28, 2012 01:32 PM

Yeah. When I read that phrase in the dissent I didn't know what it meant, looked it up, and found your description, not Jeff B.'s.

Although it would be funnier otherwise.

By the way, we don't know who actually wrote the dissent. It was written as a block of four justices.

Posted by: angler at June 28, 2012 01:37 PM (SwjAj)

224 >>>The taxes are there already.

No, they're not. See my #55

Posted by: Herr Morgenholz at June 28, 2012 01:37 PM (zlvkY)

225 @190

well, the part i quoted was just roberts' opinion, but it's PRECISELY the component of the 5-4 court opinion that prevents a massive gov't expansion under commerce.

in the actual court opinion declaring the tax constitutional:

"First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes."

so yes, it is now supreme court PRECEDENT that "the constitution permits us from federal regulation under the commerce clause so long as we abstain"; that is, the commerce clause cannot force you to ENGAGE in activity. that's an important legal win, to be honest.

the proof that the other 4 justices in the majority did NOT care to rely on a tax assumption and rather cared to uphold the govt's argument that the commerce clause allows the individual mandate lies in the fact that the opinion i quoted earlier is ONLY authored by john roberts and none of the 4 libs who upheld the mandate...so that's why the part i quoted is the important part about limiting commerce power, even if that opinion itself is not majority opinion.

essentially, as it appears, the liberals on the court were forced to find that commerce does NOT allow congress to mandate any ACTIVITY in order to uphold the constitutionality of obamacare.

Posted by: jimi ray at June 28, 2012 01:38 PM (79EF9)

226
182
In a hilarious side note, Scalia actually used the vulgar phrase "lick and a promise" in his dissenting opinion.

For
those who don't know, that's a old phrase referring to the girl who
licks your cock and promises more "once we're married," only to back out
once the ring is on the finger. It's amazingly inappropriate for a
SCOTUS opinion.


Posted by: Jeff B. at June 28, 2012 01:17 PM (FCfv5)

You've got to be kidding. You're focusing on THAT?
Even if true, "inapropriate" is mild compared to the atrocity unleashed on this nation today.

Posted by: Marybeth at June 28, 2012 01:38 PM (Ks0w4)

227 Conform, or be taxed.


Posted by: nickless at June 28, 2012 01:39 PM (MMC8r)

228
Not only did we lose two big cases, in one week we went from having a solid young Conservative Chief Justice to having a weak-willed liberal-leaning Chief Justice.

Posted by: soothsayer at June 28, 2012 01:39 PM (BWzj8)

229 Muslims are exempt, too.

It's like Obama found a way to institute the jizya.

Posted by: nickless at June 28, 2012 01:39 PM (MMC8r)

230 John Roberts = Bart Stupak

Posted by: Al From Bay Shore at June 28, 2012 01:40 PM (H7qBA)

231 @bdomenech Scalia refers to Ginsburg's opinion on the mandate as a "dissent" nine times. NINE TIMES.

Posted by: Miss80sBaby at June 28, 2012 01:41 PM (d6QMz)

232
228
Not only did we lose two big cases, in one week we went from having a solid young Conservative Chief Justice to having a weak-willed liberal-leaning Chief Justice.

I think that's the saddest truth of all that we have had to to come to grips with this week.

What the fuckity-fuck happened to him? Has he "evolved" this week?

Posted by: Marybeth at June 28, 2012 01:41 PM (Ks0w4)

233 >>>You've got to be kidding. You're focusing on THAT?
Even if true, "inapropriate" is mild compared to the atrocity unleashed on this nation today.


You really are a humorless scrunt, aren't you? If you're 24/7 100% afterburners-on anger rage, then you're just going to burn yourself out. It's a funny little SIDE note. Which is what I described it as.

Posted by: Jeff B. at June 28, 2012 01:41 PM (FCfv5)

234 Erick Erickson made a good point on Roberts. The power to tax was not expanded that much, but the power of the Commerce Clause was restricted. To those who say we need a filibuster-proof majority to repeal this, remember it was Olympia Snowe who got us to where we are today. I'm sure the Obamas were bringing her briefcases full of cash when they went to Martha's Vineyard.

Posted by: Tattoo De Plane at June 28, 2012 01:42 PM (i330i)

235
And something really stinks with this whole Roberts thing.

It makes me wonder if they really do have something on him? He's certainly done a 180.

Posted by: Marybeth at June 28, 2012 01:42 PM (Ks0w4)

236 yeah losing the cases is bad enough
but we lost the Court too

shit, I'm getting angry again

Posted by: soothsayer at June 28, 2012 01:42 PM (UWdoo)

237 Ought to get a hat tip for posting the darn link two hours ago, don't ya think?

Posted by: Billy Bob, pseudo-intellectual at June 28, 2012 01:42 PM (KZI7g)

238 Anybody check to see if CJ Roberts is really zombie Earl Warren with good makeup?

Posted by: cryptocon at June 28, 2012 01:43 PM (PMX8s)

239 and please dont anyone tell me you have any faith left in Roberts

I know you dont.

Posted by: soothsayer at June 28, 2012 01:43 PM (GRkMw)

240 But the constitutionality of the "tax" is not
reviewable until someone pays it, which won't happen til 2014, if I know
anything about law (and I don't). So there are still massive
constitutional barriers to the mandate's enforcement mechanismPosted by: Herr Morgenholz


No, Part one of the decision specifically says that the law was challenged in this case and did not run afoul of the Anti-Injunction Act, aka have to wait to challenge a tax.

Yes, it doesn't make sense to thereafter declare the bill constitutional because it's a tax, but there you go.

The challenge has been made.

It is a 'confusing' decision to say the least; it's insane. I'd like to think that Roberts is playing the Grand Game but I have nothing to point to other than the shear madness of the ruling.

Posted by: weft cut-loop at June 28, 2012 01:44 PM (famk3)

241 They DID threaten Roberts, and the entire court.


SCOTUS also struck down the 'Stolen Valor Act'. WTF is going on?

Posted by: Don in the Donner Pass at June 28, 2012 01:46 PM (Dll6b)

242 I work for a Fortune-50 corporation. We didn't get to keep our health insurace because the costs increased so much due to Obamacare. My daughter broke her arm and it will be 100% out of pocket. They converted our formally good insurance to a catastrophic-only policy and raised the premiums.

Posted by: Grim at June 28, 2012 01:46 PM (tO352)

243 John Roberts is an embarassing clusterfuck of a miserable Judas.

Posted by: Bevel Lemelisk at June 28, 2012 01:46 PM (IS2o0)

244 @231

ginsburg's opinion is partially in dissent:

"Unlike THE CHIEF JUSTICE, however, I would hold, alterna­tively, that the Commerce Clause authorizes Congress to enact the minimum coverage provision. I would also hold that the Spending Clause permits the Medicaid expansion exactly as Congress enacted it."

i haven't gotten to scalia's dissent yet, but perhaps he's referring to those parts of her opinion with that dissented from the court's judgment?

Posted by: jimi ray at June 28, 2012 01:46 PM (79EF9)

245
You really are a humorless scrunt, aren't you? If you're 24/7 100% afterburners-on anger rage, then you're just going to burn yourself out. It's a funny little SIDE note. Which is what I described it as.


I have a hell of a sense of humor, which is why I come here . . . to read, laugh, and enjoy. The comments here are usually truly hilarious and witty.

Occasionally, even yours.

But today you are proving yourself to be a true dickwad.

Posted by: Marybeth at June 28, 2012 01:46 PM (Ks0w4)

246 We need a list of conservative mandates for January. They don't even need to be particularly useful, just something to ream liberals in the ass with. And we can give exemptions to every purple and red state. Just cause.

Posted by: Aaron at June 28, 2012 01:46 PM (Tlix5)

247 The stakes for the election just went up a zillion percent. Shit Status: Real http://www.youtube.com/watch?v=IUH3JQjcweM

Posted by: HoundOfDoom at June 28, 2012 01:48 PM (KhioZ)

248 The federal power to tax anything was infinitely expanded if it stands on its own separate from the Commerce Clause.

234
Erick Erickson made a good point on Roberts. The power to tax was not
expanded that much...

Posted by: Valiant at June 28, 2012 01:48 PM (aFxlY)

249 The real question is why did Roberts fear the left more than he dreaded flushing the Republic down the toilet and the derision from the right.

Posted by: Linlithgow at June 28, 2012 01:51 PM (Gim9y)

250 @234

that's what i'm trying to say! half of what the gov't envisioned commerce being able to do -- the mandate of activity rather than simply abstention therefrom -- was declared unconstitutional with this opinion, once and for all (ehhhh knock on wood).

the power to tax hasn't really been raised that much. congress really already DOES have the power to tax anything...they just don't do it because it's incredibly unpopular to do so! they know new congresspeople can be elected and taxes repealed...and honestly, congress didn't want this to be a tax in the first place, because who can get re-elected after voting to impose a multitrillion dollar tax on the nation in a bad economy?

i think the CJ made a tough, but ultimately honest, decision. he has voted with the conservatives on MANY, MANY other rulings. we're writing him off because we're sore over "losing' a single big one?

Posted by: jimi ray at June 28, 2012 01:51 PM (79EF9)

251 Why are we surprised that he folded? The Dems and the left always threaten people when they look like they aren't going to get their way. They also follow through. They boycott businesses and go to the homes of those that oppose them and threaten their families. The left will even go so far as to set up situations where Conservative opponents could/will be killed (Swatting).

What do we do? We whine and vote for guys who fail us rather regularly. We say we don't want to become like them.

So at the end of the day we lose big things like this and they win.

Do we all get that now?

The left will go to the mat for what they want and we don't and until we do we need to get use to things like this.

Posted by: southdakotaboy at June 28, 2012 01:52 PM (Ur6Wj)

252 jimi ray at June 28, 2012 01:38 PM

I missed that.

Posted by: angler at June 28, 2012 01:52 PM (SwjAj)

253 Rush just gave credit, on air to "a blogger" Eugene, that's good that he gave credit.

Posted by: starry at June 28, 2012 01:53 PM (oZfic)

254 Somebody on local radio today, even before this abomination came down, referred to the Supreme Court not as SCOTUS but as "SCROTUS." They gave the tongue-in-cheek meaning as "Supreme Court Royal of the United States," but it's more appropriate without the explanation, doncha think?

Posted by: Wolfus Aurelius at June 28, 2012 01:53 PM (exvgC)

255 Roberts to Obama: Here you go champ. A great big millstone of a medal to tie around your scrawny neck, engraved with "For the Largest Tax Increase on the Middle Class Evah, and for Creating a Huge New Entitlement Program During an Economic Crisis". Now swim across the finish line. Look! There goes Romney!

Obama: Blub blub blub . . . .

After getting over my shock, I'm happy. Roberts turned it back over to the people to choose representatives who will Do Our Will not their own. As it should be.

Romney. Repeal. Replace.

Posted by: starboardhelm at June 28, 2012 01:53 PM (hHgxI)

256 I actually think the gloating by the left may hurt them with the public, which by and large dislikes this bill. Incidentally, when's the last time the Supreme Court was the shield protecting us from constitutional violations? When was the last time it really counted and they came down on the right side of things? Yeah.

Posted by: Christopher Taylor at June 28, 2012 01:56 PM (r4wIV)

257 Yea #145 sounds like that's what Obama might havethreatenedRobertswith tomake him change his mind. That's how I read it. It wouldn't surprise me if that actually happened the way this regime does business.

Posted by: Jaimo at June 28, 2012 01:56 PM (9U1OG)

258 "Prudence, indeed, will dictate that Governments long established should
not be changed for light and transient causes; and accordingly all
experience hath shewn that mankind are more disposed to suffer, while
evils are sufferable than to right themselves by abolishing the forms to
which they are accustomed. But when a long train of abuses and
usurpations, pursuing invariably the same Object evinces a design to
reduce them under absolute Despotism, it is their right, it is their
duty, to throw off such Government, and to provide new Guards for their
future security"

This is a question that has been on my mind for a while and is obviously raised again today: how do we know when we've reached this point? It is our right and, more importantly, our duty to throw off an absolute Despotism. One would be hard pressed to say our current system is less despotic than King George III. Do we go on forever like this? The issue of secession is pretty thin in the academic world.

Posted by: Aaron at June 28, 2012 01:57 PM (Tlix5)

259 Stop.

Roberts kept the commerce clause from becoming the regulatory catch all for congress. That was the whole point of the suit. In other words, we won.

Knocking down the whole statute would just have been gravy. Everyone agreed that congress could enact a tax to achieve the same thing because congress does have broad powers of taxation under the Constitution. So Roberts just put the whole thing back on more realistic footing and tossed it back in the Dems lap.

Liberals just got denied the ability to run your whole life claiming inactivity counts as commerce. Now they have an unpopular law AND a gigantic new tax. In other words, yesterday they had one problem. Today they have two.

Liberals were hoping for one of two outcomes: the mandate being upheld under the commerce clause OR the entire law being struck down. In case of the former, they could bank on their new commerce clause powers unto seven generations or whatever. If the latter, well, the scripts were being written for a good old fashioned trashing and de-legitimization of a judiciary that stood in their way.

In the end, Roberts denied them both these victories. Now stop whining. This piece of legislative gimcrack just became the hottest of potatoes. Insurance companies are now facing destruction with mandatory issue and no mechanism to receive the to-small-to-cover-the-cost tax that goes directly to the government's general fund and not them. In other words, the thing is broke and won't be easily fixed.

Make that three problems...

Posted by: foo at June 28, 2012 01:57 PM (lQMLp)

260 > Those old photos I have of Roberts didn't hurt either.

Wonder if Chief Justice Roberts has a wide stance IYKWIMAITYD.

Posted by: Lemmenkainen at June 28, 2012 01:57 PM (ZWvOb)

261 #245: today?

Posted by: Christopher Taylor at June 28, 2012 01:57 PM (r4wIV)

262 the mandate of activity rather than simply
abstention therefrom -- was declared unconstitutional with this opinion,
once and for all (ehhhh knock on wood).Posted by: jimi ray


Um, that was Roberts' opinion and his opinion only.

" 2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause."

One justice's opinion is not a ruling.

Posted by: weft cut-loop at June 28, 2012 01:58 PM (famk3)

263 "Roberts kept the commerce clause from becoming the regulatory catch all for congress. That was the whole point of the suit. In other words, we won."

Yeah we won the hell out of this. The bill is still there and will destroy the economy. Woo let me get out the confetti about how much we won.

Posted by: Christopher Taylor at June 28, 2012 01:59 PM (r4wIV)

264
Erick Erickson at Redstate.com is saying that we shouldn't be hard on Roberts. Some of his haughty minions on the comment boards are insulting people who respectfully disagree with him.


I fucking hate that website.

Posted by: Reggie1971 at June 28, 2012 01:59 PM (S9lbG)

265 Posted by: foo at June 28, 2012 01:57 PM (lQMLp)

Well put!

Posted by: starboardhelm at June 28, 2012 02:00 PM (hHgxI)

266 Romney said he is still going to have pre existing conditions in his new bill.

He's an idiot.

Posted by: Billy Bob, pseudo-intellectual at June 28, 2012 02:00 PM (KZI7g)

267 Insurance companies aren't facing shit. When they become insolvent they will become GSA's raking in the taxpayer dole just like the fucking post office. Another useless organization making decisions for people they don't even know all at our cost. Big Big costs.
The government is making sure that insurance companies will become the administrators of the bloated healthcare program.

Posted by: Jaimo at June 28, 2012 02:00 PM (9U1OG)

268 I posted yesterday that I could feel this in my bones, that it wasn't going to go as expected. MSM thought it was going to go against them, they weren't prepared.

Posted by: starry at June 28, 2012 02:01 PM (oZfic)

269 Meanwhile, are all those "a 5-4 decision destroys democracy" articles being Minitruthed out of existence?

Posted by: Christopher Taylor at June 28, 2012 02:02 PM (r4wIV)

270 @262 i already addressed this in comment 225. robert's singular opinion is what DROVE the 5-4 ruling away from accepting the gov't line on commerce powers, so that's why i quoted robert's singular opinion.

the reason robert's opinion is listed BEFORE the opnion of the court that the obamacare tax is constitutional is because the opinion of the court is in this case contingent upon the roberts opinion. if roberts had NOT individually found 2. and 3. (and if the court had not found 1., which would have made the entire case moot to begin with), he would not have joined the four liberals in deciding 4., either.

anyway, if you'll go back to 225, you'll see where i quote the actual opinion of the court. it's just that roberts' opinion gives a better insight into his own judgment, which is what we're discussing.

Posted by: jimi ray at June 28, 2012 02:03 PM (79EF9)

271 I don't think they can tax you for not eating broccoli.
For not buying broccoli, sure... but not for not eating it.

Posted by: malclave at June 28, 2012 02:03 PM (W1Ndc)

272
266Romney said he is still going to have pre existing conditions in his new bill.

He's an idiot.


Be careful. Dissent against Mitt will earn you an interesting invitation from JeffB

Posted by: Marybeth at June 28, 2012 02:04 PM (Ks0w4)

273 I was hoping for the law to be struck down. But now I'm thinking that Roberts' decision is a brilliant splitting of the baby.

1: The Commerce Clause has found its outer limits. Lopez revolution resurrected. Huge.

3. Limitation on federal government's ability to coerce states through dispersal of federal funds. Another heretofore apparently boundless power of the federal government over the states that now has discernible limits. Big.

2: "Mandate" upheld under the tax power. The power to tax has ALWAYS been the power to destroy. Has always been the power to coerce and compel conduct. Has always been a political hot potato. It's not sneaky power. It's obnoxious and obvious. It's rightly the source of rebellions through history. It's the power of assholes like King George. We didn't cry, "No taxation." It was, "no taxation without representation." So, let's vote the thing away if it's bad policy. That's what you do with a bad tax.

4. Democratic values upheld. Brewing crisis of confidence in the independence of the Court quelled. Decision leaves political issues with the political branches. Keeps a manifestly political issue in the political realm.

Conservatives hate the ACA for constitutional and policy reasons. Liberals love the ACA as socialist policy and care for the constitution only as a tool to socialist policy. The media will see this as a victory for socialist policy. But socialist policy wasn't before the Court. Governmental power was. And the law was upheld not under the Secret Ninja Commerce Clause, but under the Tax Power, a much clearer, legitimate governmental power with better defined constitutional limits. "Requirements for the apportionment of direct taxes and the uniformity of indirect taxes, the disallowal of taxes on exports, the General Welfare requirement, the limitation on the release of funds from the treasury except as provided by law, and the apportionment exemption of the Sixteenth Amendment. [cite Wikipedia]"

So, I see this decision as a victory for conservatives on the constitutional issues that matters most, the Commerce Clause Power and constitutional limits on governmental power, and keeps the policy issue where it belongs: in the public sphere as an election issue.

As Instapundit, noted, the Court refused to save us from ourselves. Well, good. That's not their job. Roberts established some good precedent that will stand for ages and left the policy issue to the voters. Let the voters decide.

Posted by: ss at June 28, 2012 02:05 PM (m2RwJ)

274 jimi ray, the mandate being declared unconstitutional is irrelevant, the ruling just gave the federal government the power to effectively do it anyway, by calling it and crafting it around a tax on behavior or lack of behavior. It doesn't matter what was ruled or by whom on the mandate. It was back doored in.

Posted by: Christopher Taylor at June 28, 2012 02:05 PM (r4wIV)

275 "Limitation on federal government's ability to coerce states through dispersal of federal funds. "

Wrong. The bill specifically says that the government cannot limit MEDICAID funding to states, not any other. They can penalize states by withholding any other funding they wish, such as highways, etc.

Posted by: Christopher Taylor at June 28, 2012 02:06 PM (r4wIV)

276 @271

apparently, to eat it. o.o

the reason "buying" is no longer key is that it's no longer a question of federal interstate commerce powers...the opinion pretty much says they can tax you for not doing just about ANYTHING that, so long as they provide you the opportunity to just pay a tax so that you don't have to do it...and so long as the tax is not overly punitive.

Posted by: jimi ray at June 28, 2012 02:07 PM (79EF9)

277 Last night I posted solomonesque decision and I think that's what they were trying to do.

Posted by: starry at June 28, 2012 02:08 PM (oZfic)

278 the reason robert's opinion is listed BEFORE the
opnion of the court that the obamacare tax is constitutional is because
the opinion of the court is in this case contingent upon the roberts
opinion. if roberts had NOT individually found 2. and 3. (and if the
court had not found 1., which would have made the entire case moot to
begin with), he would not have joined the four liberals in deciding 4.,
either.
Posted by: jimi ray


A distinction entirely without a difference. There's nothing in the USC or the bill that states the justices have to proceed from the Commerce Clause and then get to the tax powers. The order for those two items is meaningless.

Just because the other justices said nothing about the Commerce Clause does not mean the agree with Roberts' opinion! You can't rely on absence of opinion to declare the CClause inoperable.

The lefty justices don't give a shit how it was upheld. All that mattered was that it was upheld.

Posted by: weft cut-loop at June 28, 2012 02:09 PM (famk3)

279
271I don't think they can tax you for not eating broccoli.
For not buying broccoli, sure... but not for not eating it.

Whew, that's a relief.

Posted by: George Herbert Walker Bush at June 28, 2012 02:09 PM (S9lbG)

280 Ann Coulter was exactly right about Roberts. He was basically a blank slate. From her column on 7/20/2005: "But unfortunately, other than that, we don’t know much about John
Roberts. Stealth nominees have never turned out to be a pleasant
surprise for conservatives. Never. Not ever."

Posted by: chas at June 28, 2012 02:11 PM (JXsDO)

281 Rush just said that the romney camp has raised over a million dollars today...I'll ad, so far...

Posted by: starry at June 28, 2012 02:11 PM (oZfic)

282 History will hold him in contempt ... IF TRUE

Roger B. Taney is lonely

Posted by: Purp (@PurpAv) at June 28, 2012 02:12 PM (6L459)

283 Rush is talkin about "tea leaves"!

Posted by: starry at June 28, 2012 02:12 PM (oZfic)

284 El Rushbo is revisiting this now.

Posted by: Valiant at June 28, 2012 02:14 PM (aFxlY)

285 244 @231 i haven't gotten to scalia's dissent yet, but perhaps he's referring to those parts of her opinion with that dissented from the court's judgment?


"A few respectful responses to JUSTICE GINSBURG’s dissent on the issue of the Mandate are in order..." (pp 139 and following)

(I am still reading.)

Posted by: Miss80sBaby at June 28, 2012 02:14 PM (d6QMz)

286 @278

ok, this time please go back and read 225. the court's opinion EXPLICITLY states that, pph., "the court finds that congress cannot mandate activity as well as inactivity thru commerce clause, but they can pretty much tax anything."

as i said in 225, it would seem that the liberal justices had to agree to a limitation of commerce powers in order to uphold their party's favourred piece of legislation.

no, john roberts' singular opinion will never be quoted as supreme court precedent. however, the sentiments are present in the majority opinion, and the very fact that john roberts' conclusions were what they were is what drove the opinion upholding the mandate as a TAX, as opposed to under commerce as the other 4 justices wanted it.

i don't see how this is difficult to understand.

again, the reason i quoted roberts' opinion instead of the spread-out bits and pieces addressing commerce's limitation of powers in the court opinion is that i felt it better illustrated roberts' judgment, which is what is in question here.

Posted by: jimi ray at June 28, 2012 02:15 PM (79EF9)

287 I absolutely believe the Left rattled Roberts by threatening to "taint" the Supreme Court with charges of partisanship.

Conservatives, take note of this. Fighting ugly pays off.

Also, from Roberts ridiculous reasoning, all you have to do is attach a tax to anything and it's Constitutional. I'm sure if we started taxing abortion or illegal immigrants, the Court would back us up.

Posted by: BradleyJ at June 28, 2012 02:15 PM (XDRsa)

288 For not buying broccoli, sure... but not for not eating it.

Don't get too cocky there skippy, Roberts hasn't ruled on that yet.

Posted by: Entropy at June 28, 2012 02:15 PM (TULs6)

289
The more disgusting part of this is that Roberts wrote it was the Courts job to find reasons this WAS Constitutional... to give Congress every benefit, instead of looking out for the RIGHTS of the people...

So, in the Courts view, it is now PRECEDENT that the Court itself is on the side of Congress...

10th Amendment is now GONE. States Power was thrown out Last Week... we now DO live in a Tyranny....

Ben Franklin should be granted Sainthood... as Prophecy is considered a Miracle by the Church...

Posted by: Romeo13 at June 28, 2012 02:16 PM (lZBBB)

290 Another blog: "evidence that votes shifted after conference"....

so what exactly does this mean? Is the Supreme Court not a co equal branch anymore?

Posted by: starry at June 28, 2012 02:18 PM (oZfic)

291 So, I see this decision as a victory for conservatives

Oh yeah, you guys have been kicking ass for decades now.

Posted by: Entropy at June 28, 2012 02:18 PM (TULs6)

292
/ghostly whisper...

Look Jimmy Carter... I'm not so bad anymore either....

Posted by: Ghost of Roger B. Taney at June 28, 2012 02:19 PM (lZBBB)

293 @285

yeah, you'll note that scalia only discusses that part of ginsberg's opinion which deals with the commerce clause as having been positively applicable to a test of the mandate's constitutionality. he's not talking about her opinion in general, just the part of her opinion which dissents from the opinion of the court, and which, in scalia's view, "duly recites the test of Commerce Clause power that our opinions have applied, but disregards the premise the test contains".

he's just saying that she's got it wrong on dissenting from the majority opinion on the basis of her accepting the gov't line on commerce powers.

Posted by: jimi ray at June 28, 2012 02:20 PM (79EF9)

294 Does everyone finally understand that this is a cannibal pot, or would you rather still argue about laundry?

Posted by: Ken at June 28, 2012 02:20 PM (fFh95)

295
Don't tax abortions, just tax the failure to carry a fetus to term. You have the right to have an abortion per Roe v. Wade, but Congress has the right to make it very, very expensive if you fail to take the action Congress dictates. Same logic, not that logic matters to dirty commie bastards.

Posted by: Tex at June 28, 2012 02:21 PM (mPm2x)

296 264--it's only a matter of time before all Roberts critics are banned at RS. That's how they roll.

Posted by: Some dope at June 28, 2012 02:22 PM (1iGL5)

297 Find it disappointing that Roberts may have changed his vote due to "pressure" to go along the liberal path. How often do liberals do that to accomodate conservative opinions and pressure?
Anyway, this really sucks, but it was a huge body punch when it was originally passed. This is just another one.
A couple of silver linings.
-While it will be harder for Romney to undo it now (if elected), I don't think this ruling will help Obama politically overall. It will shore up his base; but maybe, just maybe, the squishy part of the 52% (thanks again, guys) will start to wise up when this is hammered on again and againas a tax on them. Will also re-energize the conservative base to not take ANYTHING for granted, and that every vote is precious.
-Maybe this will make people wake up and realize that every vote is huge, and that this is what happens when you elect liberals to make yourself feel warm and fuzzy.
-It will be much harder now for R moderates to kick problems down the road rather than fighting under the rationalization that "this new fiat will never hold up under SCOTS scrutiny, so let's just cower in our bunkers, not fight,and hope it turns out OK in the long run".
-Yet another out and out lie to hit Obama with in ad campaigns. Is there anyone in the 50% who do pay some taxes that really think this won't raise their taxes and take a bite out of their wallet? We need that quote from Obama's health care czar from when he said that "Anyone who doesn't understand that this program represents a wealth transfer hasn't been paying attention" to be played over and over and over again on national TV.
Not much, but looking for toeholds to climb the Democrats' teflon wall.

Posted by: RM at June 28, 2012 02:23 PM (TRsME)

298
SIAP
Chief Justice John Roberts Jr.-
Back-stabbing traitor,
or Machievallian(sic) genius???

Posted by: Tom22ndState at June 28, 2012 02:24 PM (sB+4D)

299 Is anyone else not able to access Volokh's website?

All I get is this message:
Fetching of original content failed due to Proxy Publisher Failure CLOSED. If you own this domain, please consult this FAQ.

Posted by: The Political Hat at June 28, 2012 02:25 PM (XvHmy)

300 If the mandate is a "tax," then how the hell can if be Constitutional since the bill originated in the Senate?

Posted by: The Political Hat at June 28, 2012 02:27 PM (XvHmy)

301 however, the sentiments are present in the majority
opinion, and the very fact that john roberts' conclusions were what they
were is what drove the opinion upholding the mandate as a TAX, as
opposed to under commerce as the other 4 justices wanted it.Posted by: jimi ray


Wrong.

" 2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause."

One Justice's opinion. One. Uno. Un. ひとつ。

Posted by: weft cut-loop at June 28, 2012 02:27 PM (famk3)

302 >>i don't see how this is difficult to understand.

I'll admit, I'm having difficulty. Are you saying that Roberts did us all a huge favor and forced a concession out of liberal justices by getting them to agree to limits on the commerce clause? That he made a trade - support for the act under Congress' taxing power - in exchange for a ruling by the Court regarding limits to the commerce clause?

If that's what happened, why? If he wanted the Court to hold that there were limits on the commerce clause, HE DID NOT NEED THE LIBERAL JUSTICES TO DO THAT. I could understand it if Kennedy was an actual swing vote and that something had to be conceded to get something you couldn't without him. But Kennedy wasn't in danger - he was in the "strike down" camp 100%.

Roberts didn't need to give the liberal justices anything in order to restrict the commerce clause - he already had all the votes he needed.

Hope this thread's not dead - I'd like to hear your response.

Posted by: angler at June 28, 2012 02:30 PM (SwjAj)

303 @301 wow, you really are obstinate, aren't you?

go read comment 225, where is EXPLICITY QUOTE THAT PART OF THE MAJORITY OPINION that limits commerce power.

i've directed you now twice before to comment 225, and i've told you each time that you will be able to find the opinion of the court limiting commerce power therein.

you seem to be stuck on roberts' opinion...nevermind you don't seem to understand why it matters, you can't even seem to find a comment to which you have been directed...twice. -.-

you will find your answers in comment 225...or, alternatively, on pp. 41-2 of the ruling.

in those pages, the OPINION OF THE COURT (the 5-4 opinion upholding the constitutionality of the mandate as a tax) states that the court has found that congress cannot punish any abstentions from a regulated activity.

Posted by: jimi ray at June 28, 2012 02:36 PM (79EF9)

304 roberts violated his oath and therefore should resign.

Posted by: James at June 28, 2012 02:38 PM (IoTd/)

305 I didn't read any of the comments, so I apologize if someone else said this already. While I don't excuse Roberts for doing the wrong thing, it does make me wonder if he was threatened with some kind of harm befalling his family if he didn't vote to uphold. You know how vile and evil the left is, I wouldn't put it past these thugs.

Posted by: runningrn at June 28, 2012 02:41 PM (WGmy2)

306 @302

I think that it is better perspective to look at it like the 4 liberal judges needed Roberts to keep the individual mandate alive.

Posted by: Penfold at June 28, 2012 02:43 PM (1PeEC)

307 9 for mortal men doomed to die.

Posted by: entropy at June 28, 2012 02:44 PM (TULs6)

308
Man, when I was a kid I remember all the "Impeach Earl Warren" bumper stickers on cars. Fact is, these Supreme Court Justices are really only susceptible to pressure from the left. They don't give a rats hindparts about "conservative" opinion. Name me one Justice who was appointed by a Democrat President who ended up "evolving" into a conservative. Can't do it, right? On the other hand, we have the aforementioned Earl Warren, Stevens, O'Connor, Souter and and now Roberts. I think it takes big brass ones to be a Clarence Thomas or Antonin Scalia and basically submit yourself to be pilloried within your own chosen profession (the law) and in the place you have to live and work (Washington, DC) on a daily andunrelenting basis. All you have to do to be loved and adored is to make a little compromise with constitutional principles.

Posted by: BigDaddyD at June 28, 2012 02:44 PM (rn60K)

309 @302

admittedly, i'd much have preferred roberts to have sided 5-4 with the conservatives to strike the entire law. but then, i assume...HOPE...i am a far more political creature than john roberts.

i would suppose roberts' objective is to lay down positive constitutional-law precedent that future courts can look to...i think that's the best way for a cj to secure his legacy. no, the outcome was not ideal from my political standpoint, but again, if roberts is going to play by strict legal rules about using every reasonable conjecture to uphold the constitutionality of a law, i suppose he found his hands tied at a fundamental legal level.

like someone said before, roberts refused to save us from ourselves, and threw the issue back into the legislative domain where it belongs. congress did not want to pass ACA as a tax, because levying a huge tax in the middle of a recession is a fool's errand. so maybe roberts was extracting the maximal political concessions he could (i.e., throwing a huge tax back in the democrats' face) while still satisfying his PRIMARY motivation to set down good judicial precedent.

as others have said, he didn't really expand tax power...he just let the cat out of the bag. and he extracted a pretty major concession in that the decision of the court says that we are constitutionally protected from being punished for FAILING TO ENGAGE in regulated activity. that's a big win for constitutionally limiting the fed govt's powers.

maybe he exploited the liberals' POLITICAL attachment to the rule to get what he felt was the best LEGAL precedent...and the best legacy from a jurists' POV...for himself.

just conjecture...but based on what will COME of this ruling...it's not bad. it doesn't change anything for the worse, really.

Posted by: jimi ray at June 28, 2012 02:45 PM (79EF9)

310 @306

damn, said it before me and a lot more clearly >.>

Posted by: jimi ray at June 28, 2012 02:46 PM (79EF9)

311 I missed the Obama speech. Did the professor lecture them again on how wrong-headed they were?

Posted by: Fritz at June 28, 2012 02:46 PM (ZN5qR)

312 Roberts punted on this because if they had killed the tax claim in ACA, it would have opened the door for re-litigating social security.

Posted by: phil at June 28, 2012 02:46 PM (QzdcC)

313 >>I think that it is better perspective to look at it like the 4 liberal
judges needed Roberts to keep the individual mandate alive.

Yes. That would imply that Roberts is much more liberal than many assumed, wanted in his little heart to uphold the law, but insisted that he be able to write the opinion so that he could throw in some face-saving language to assuage conservatives. Language which (for the most part, see comment 225), the liberal justice refused to join.

Posted by: angler at June 28, 2012 02:48 PM (SwjAj)

314 As an old fuddy-duddy justice said, a long time ago: The power to tax is the power to destroy.

Wrong. It's the power to destroy that is the power to tax.

Posted by: PersonFromPorlock at June 28, 2012 02:48 PM (2VCZA)

315 They are harping on the fact that Romney can't argue against The Obamacare Largest Tax ever levied in American History" because he is the father of Obama care largest tax ever levied in American History by virtue of the fact that he was responsible for romney care.

I don't know, I think he can just come out and say he's learned over the year it wasn't the best idea as it's not working out so well because the legislature wouldn't let him do what he originally wanted to do, and, if he really explains it well, people might just catch on. Plus, this bill and this opinion has now become part of the all about the economy push. Even if the economy seems to be looking better this is still the freight train coming at us head on.

Posted by: starry at June 28, 2012 02:49 PM (oZfic)

316 Posted by: weft cut-loop at June 28, 2012 01:58 PM (famk3)

Exactly, Roberts few tempered remarks are all dicta and meaningless unless another Court gets 5 justices to change that fact. It does not have the rule of law.

Posted by: NJRob at June 28, 2012 02:58 PM (FVp26)

317 i think the conservatives have convinced me.

can't list all the reasons, but on pages 16-26 of the dissent, they pretty much go thru the utterly unprecedented uniqueness of this so-called "tax", warning against judicial redefinition of legislation just to keep it alive.

"For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off."

and

"We have no doubt that Congress knew precisely what it was doing
when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty."

so i guess i tend more toward the minority view that the legislation really can't be saved AS WRITTEN. i guess it should be kicked back to congress from scratch.

but IANAL.

Posted by: jimi ray at June 28, 2012 03:05 PM (79EF9)

318 in those pages, the OPINION OF THE COURT (the 5-4
opinion upholding the constitutionality of the mandate as a tax) states
that the court has found that congress cannot punish any abstentions
from a regulated activity.

Posted by: jimi ray


Oookay. Don't believe what's written in the decision. Here's the WSJ:

"Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, wrote separately to argue that the insurance mandate fell squarely within the federal government's commerce power.

"The Chief Justice's crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress' efforts to regulate the national economy in the interest of those who labor to sustain it," Justice Ginsburg wrote. "

Posted by: weft cut-loop at June 28, 2012 03:06 PM (famk3)

319 to be more clear: it would appear upon further edification that while roberts refused to saved the voters from congress, he didn't refuse to save the congress from congress.

i think congress should have to own a substantial redefinition of the word "tax" itself.

either way, aca is really unpopular, and it will probably get more unpopular as the economy continues to decline. i can see it having a positive effect on the election...especially cuz you KNOW obama's gonna be victory-lapping it up over the next week or so.

Posted by: jimi ray at June 28, 2012 03:09 PM (79EF9)

320 The government can tax our income, per the 16th Amendment.

Any other direct taxes, as income was previously held to be, are unconstitutional unless apportioned (Article I, Section 9, Clause 4).

In the course of taxing our income, exceptions are made in the form of exemptions, credits, and deductions.

This "mandate" is a separate tax, not based on income, levied on hypothetically everyone, with certain exceptions based on various considerations.

The dissent took him to task for giving so much weight to exceptions that a direct tax is suddenly not deemed a direct tax. So a tax levied on all people, except left-handed gingers, is no longer a direct tax (though there may be other issues).

Roberts invoked the benefit of home ownership for tax purposes. If people who own houses are advantaged under our tax system, why not also those who have health insurance? (So the reasoning goes)

It ignores the substantial fact that my non-ownership of a house does not inflict any tax on me, regardless of my income and the tax on it. The non-insurance tax is qualitatively different. It is a pure penalty. Roberts says it's not.

Posted by: Crispian at June 28, 2012 03:12 PM (uBMtY)

321
While I understand the limiting of the commerce clause found in Roberts' opinion, the fact of the matter is it could just as easily have been written in a majority opinion to overturn the law. In fact, it would have been more emphatic since the other 4 justices who voted against were also against the commerce clause, as well as the entirety of the law. Congress passed the law as a mandate under the commerce clause, the president signed the lawwhile asserting it was specifically not a tax but a mandateallowed under the commerce clause. 5 Justices of the Supreme Court of the United States found thatthe commerce clausedid not permit such a mandate, but then one of those 5 decided that it really wasn't a mandate, but a tax, despite what the congress, the president on the other 8 justices on the court thought, and therefore completely justifiable. That is why Justice Roberts is a coward and a horses ass.He seems to be the only one who couldn't limit himself to adjudicating the issue at hand, which was the mandate and the commerce clause.One is reminded of the "emanations and penumbras" of the Roe v Wade decision. Whatever one thinks of the abortion issue, any thinking person should be appalled at the idiocy of the decision itself. Likewise, I think this decision will go down in legal infamy as well. Both of the decisions basically say "we recognize that the Constitution, as written, does not give us the power to affirm this law, but we are going to do it anyway." The only difference is that Justice Blackmun(forgot him in my previous post as a Republican appointee who "evolved") was actually writing a true majority opinion for 5 justices in Roe, while Roberts basically wrote a one man "majority" opinion. What an a-hole.

Posted by: BigDaddyD at June 28, 2012 03:12 PM (rn60K)

322 @318

er, why are you quoting the wall street journal when i told you exactly where you could find the language in the decision itself?

you're quoting dissenting opinion, by the way. the court's majority opinion really does say what i told you it does. please don't be scared to look. o.o

the liberals can bitch and moan all they want in dissent that they had to sign on to roberts' language to get the decision, but all four of their names happen to be on the opinion of the court that expressly says that the court finds that commerce cannot be invoked to punish abstentions from regulated action.

it's just a silver lining, but it's a silver lining nonetheless. take it for what it's worth.

Posted by: jimi ray at June 28, 2012 03:13 PM (79EF9)

323 Thank goodness! I'm no longer the most disgraceful Chief Justice in U.S. history. I'm still rotting in hell, but at least I'll have like-minded company in a few decades. I'll keep a pool of brimstone open for you, Johnny!

Posted by: Roger B. Taney at June 28, 2012 03:20 PM (k4bdL)

324 OK, we're not any worse off than before the SCOTUS agreed to address this case. We're all subject to the mandate and to the death panels, and we're now dependent upon the purveyor of Romneycare to deliver us from Obamacare. Hardly a reson to drag myself from bed on election day. The power to appoint people to the SCOTUS is no longer a reason to vote Republican. For the record, I'm covered by VA healthcare, at least for now. The rest of my family, however, is still required to buy insurance they can't afford now. SCOAMF has said that there will be provisions for "folks" who can't afford to buy insurance. We've already been turned down for Medicaid, because we aren't yet poor enough. We own our own home (for now) and have liens against it for old medical bills. And we still don't know what Obamacare is going to do to the supply of medical doctors. We may find the next big change will involve importing doctors from Cuba or elsewhere in the third world. Perhaps the Islamosphere, like they do in Britain. Oh, and how is the VA doing on medical care? About like you would expect. I have no choice of primary care physicians, and no option of elective surgery. I asked them once about death panels, and their answer (paraphrsed) was "Don't be ridiculous, that will never happen. Besides, some kind of rationing system is necessary to keep costs down. Shut up and drink the kool-aid"
I've been a voting adult since 1968 and I don't see anything in the works to reverse this trend in favor of liberty and/or common sense. Not to be ironic, but we'll just have to pray.

Posted by: mangas colorados at June 28, 2012 03:24 PM (JoqnC)

325 @323...was going to mention the Roger Taney thing as well, good call.

Posted by: BigDaddyD at June 28, 2012 03:24 PM (rn60K)

326 @320

the analogy i read in the opinion -- the one that he had me fooled with, till i read the dissent -- is that congress could tax you for not having energy-efficient appliances i your house.

that is actually a conceivable tax. congress has that power. taxes can be used to coerce "good" behaviour (sin tax). note that the roberts-penned majority opinion makes specific reference to the limitations of congress to influence behavior or impose non-monetary penalties.

still, although there is nothing in the constitution to prevent that tax, i agree with the judges that the tax would have had to have been PRESENTED as a tax, initiating as so in the house of representatives.

SURELY, after all, if ACA mandate had been termed a "tax", MANY democrats who voted for its passage would have been far more hesitant to do so, right? thus the court is fundamentally changing the character of the legislation by redefining the penalty as a tax in a way not well provided-for in the bill itself.

kind of bad, because conceivably congress doesn't have to really face the poll-wise ramifications of defining the word "tax" up like this anymore now that htis is precedent.

Posted by: jimi ray at June 28, 2012 03:26 PM (79EF9)

327 ...i agree with the dissenting* judges that the tax...

the more i read the decision, the worse it seems >.

fuck trying to be pollyanna :/

Posted by: jimi ray at June 28, 2012 03:27 PM (79EF9)

328
the Ruling Class has hit the jackpot, the government now has the power to use the force of Law to compel you intoANY behavior they can call a "tax"

Posted by: Shoey at June 28, 2012 03:33 PM (jdOk/)

329
oh and;

burn in hell John Roberts!

Posted by: Shoey at June 28, 2012 03:34 PM (jdOk/)

330 you're quoting dissenting opinion, by the way. the court's majority
opinion really does say what i told you it does. please don't be scared
to look. o.oPosted by: jimi ray


You're mis-reading the decision.

Part III-A is the question of the CClause and the Necessary Powers.

The decision, page 6:
"ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined; an opinion withrespect to Part IV, in which BREYER and KAGAN, JJ., joined; and an opinion with respect to Parts III–A, III–B, and III–D. GINSBURG, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to Parts I, II, III, and IV."

Roberts is the only one that held forth on an opinion on Part III-A. There was no majority decision on Part III-A.

If this is not clear enough, Angler summarized the majority/minority opinions under the thread "Now Is The Point At Which I Become Depressed" #131.


Posted by: weft cut-loop at June 28, 2012 03:36 PM (famk3)

331 Thank goodness! I'm no longer the most disgraceful
Chief Justice in U.S. history. I'm still rotting in hell, but at least
I'll have like-minded company in a few decades. I'll keep a pool of
brimstone open for you, Johnny!


Posted by: Roger B. Taney at June 28, 2012 03:20 PM (k4bdL)

Sorry Roj. You still win, and James the Bachelor is still the worst President.

Posted by: Oldcat at June 28, 2012 03:38 PM (z1N6a)

332 The damage Roberts has done here is incredible.

I'm just glad I am not related to him because I would literally disown him.

Can't associate with someone who strips me of my freedom.

Posted by: Dan at June 28, 2012 03:56 PM (/7gN/)

333 They can tax your or regulate you any way they want, Ace.

Now shutup and eat this shit sandwich. There are plenty more where that came from.

otoh, there is always room in the collective for the smart, amoral, and deeply cynical. That's where I am headed. At least I won't be allied with the kind of people that produced Roberts and McCain.

Posted by: LockesChild at June 28, 2012 03:57 PM (PxjPf)

334
The Republican party platform should include the request that Justice Roberts
resign.

Posted by: Marvin Bauman at June 28, 2012 05:05 PM (oBs8X)

335 Sounds very plausible. Who are these "certain circles" I wonder ?

Posted by: runner at June 28, 2012 05:11 PM (WR5xI)

336 Has it escaped noticed that taxes are more difficult to pass than not-taxes? Obamacare never would have made it past the Democrats if it had required the truth-in-legislation that Roberts just forced on them.

Bonus points because they are too thrilled that their precious dysfunctional bundle of law will survive into the next congress to realize that that congress will have to act swiftly to repeal one of the most regressive taxes ever levied upon the middle class. Not out of any great principle mind you but just to save their cushy sinecures.

In other other words, it will probably repeal in the senate by something like 99-0. No one will want to be on record as sticking a the poor and middle-class uninsured with a tax. So out it goes with bipartisan support.

There might be some attempt by the Democrats to secure a new funding mechanism but good luck with that. Holding the house is enough to prevent that from happening.

It'll probably come up again some time down the road. After all folks do so love the promise of a free lunch. Although next time they won't have the commerce clause as their get-out-of-taxation free card. So the mountain just got a bit steeper for nationalizing health care.

I'm not sure if Roberts is a hero or a villain in all this. It doesn't matter. What we know of his thoughts and motives is exactly nothing. This post is about nothing more than gossip and speculation. We are in Joy Behar territory here.

What matters is where we are at. We have a law that soon enough is going to have to be repealed just so the pols can pull their bacon out of the fire with the voters. Not much to cry about there. We also have a court ruling that puts some firm limits on the use of the commerce clause. Think of all the mischief had that been allowed to stand.

The case was about the commerce clause. It was ruled as conservatives and libertarians wanted. The law was left to stand as a soon-to-be very unpopular tax. Rich people have health insurance and are unlikely to be subject to the mandate thus it is a tax only upon the poor and middle-class. Democrats are going to hate that as much as Republicans hate the whole law.

So the law is doomed and and the commerce clause is off limits as a rationale for future legislative mischief. More to the point now a tax is a tax which is something everyone understands so it also just got harder for Democrats to pull this sort of thing again.

Stop cursing the darkness and light a candle.

Posted by: foo at June 28, 2012 05:32 PM (lQMLp)

337 Just another GIvernment ponzi scheme, add it to the others. The Greeceing of America has begun.

Posted by: airandee at June 28, 2012 06:01 PM (9QJLh)

338 Levin and Hewitt on Robert

Posted by: Beto at June 28, 2012 06:41 PM (BAnPT)

339 As with all else, follow the money.

Posted by: maverick muse at June 28, 2012 06:42 PM (BAnPT)

340 Can you say "FAIR tax"?
I knew you could.

Posted by: Zombie Mister Rogers at June 28, 2012 06:51 PM (knMIa)

341 320 Levin attacked that rationale of Roberts' "don't bother with labels"

Posted by: Beto at June 28, 2012 07:00 PM (BAnPT)

342 Crossposted from Hotair:


The conservatives thought the mandate was not severable, as they went to great pains to show.

The liberals thought the mandate perfectly constitutional.

Supposition: Roberts was alone in believing the mandate was an
unconstitutional exercise of the Commerce Clause, severable from the
law.

Roberts could have concurred with the conservatives (or vice versa),
leaving a very messy plurality, the mandate struck down (and closely
related provisions) but with only Roberts supporting that position! If
you have the other 8 Justices arguing that such a holding violates the
intent of Congress, its’ really ugly to go there.

If Roberts views the conservative dissent as an overreach – which he
clearly does – and the liberal dissent as an abdication – which he also
clearly does – he had no alternative in his view but to find a third
route.

That third route is hideous, but the lesser of two evils for the integrity of the Court.

Ginsburg’s colorful broccoli metaphor for severability informs this
view (“Or, may the mandate be chopped, like a head of broccoli, from the
rest of the act?”) – I don’t think she was ONLY listing the basic
questions before the Court.

I suspect the severability part of the conservative dissent was part of a concurrence.

When it comes to the tax issue, As Scalia writes, “As far as §5000A
is concerned, we would stop there. Congress has attempted to regulate
beyond the scope of its Commerce Clause authority,4 and §5000A is
therefore invalid.”

The Court, under Roberts, could have dismissed the characterization
of it as a tax based on the preceding analysis of it being clearly an
attempt to regulate commerce – not a tax to raise revenue.

This was Roberts’ opening. He could have given the tax issue short
shrift. But he ultimately forged on. His opinion makes clear he felt a
duty to find a way to read it as constitutional, that the law “need not
be read” in such a way as to make it unconstitutional.

Ginsburg’s opinion also informs my view. She expresses puzzlement
that Roberts discusses the Commerce Clause reasoning if he could uphold
the law as a tax.

But it is normal to tackle the main argument…it is more astounding to
continue onto a lesser justification after finding the law violates the
Constitution so clearly.

Roberts opinion is quite lawyerly and I think points to not wanting
to inflict damage on the Court with a messy plurality containing a
result with which only he agrees.

Posted by: Crispian at June 28, 2012 07:18 PM (uBMtY)

343 SORRY, EVERYBODY!

I thought I DID put quotation marks around my comment. I was trying to make the point that I think the Mafioso in Chief gets some things done the same way Hitler, Stalin, Saddam and Al Capone did: threatening people's families.

I thought that at the time that Obamacare was passed. I imagine we'll never know the full extent of the threats that were made -- all we heard about was the bribes, but you KNOW there were threats. "It's the Chicago Way." Obama's an Alinsky disciple, and Alinsky apprenticed with Frank Nitti, Al Capone's enforcer and right-hand man, the guy who ran the Mob when Capone was in prison.

We'll never know if John Roberts was threatened -- I was just trying to make the point that with the Obama Gang, it's not out of the realm of possibility. If White House Insider over at The Ulsterman Report is to be taken seriously -- and I believe that he or she should be -- there are literally dead bodies scattered behind Obama -- probably not by his own order, but at the orders of those who put him where he is.

Posted by: Kathy from Kansas at June 28, 2012 08:31 PM (F0o5k)

344 Ian S. @206 --

I didn't mean to be a "hit and run" -- it was just that I had an appointment to go to right afterward, and was away from the computer for the rest of the day until about an hour ago.

My big mistake was I commented without having read all the previous comments. I had no idea of the level of anger against Roberts here at the HQ. Now I see that people were angry enough as to be predisposed to think my comment was serious! Egads.

I apologize to everyone here. I think Obama and his minions are evil, and I would not put ANYTHING past them. Roberts has small children, and as any parent can tell you, even the strongest, most upright human being will buckle under to an evil tyrant if the tyrant threatens their kids. I do suspect Roberts was threatened.

Posted by: Kathy from Kansas at June 28, 2012 09:30 PM (F0o5k)

345 So, the possibility exists that the next president will appoint up to four new justices to the Supreme Court. How ironic it would be, if after that process, there would be a clear conservative majority with Roberts part of the liberal wing, along with Mr. Kagan, Miss Breyer, Senorita Sotomayor.

And by current appearances, Sotomayor might be the "swing" vote of that block. Maybe Harriet Myers wasn't such a bad choice after all.

Better yet, maybe we should demand that Republican presidents nominate Joe the Plumber types to the Supreme Court from now on. At least they won't parse words, and claim shit is shinola. How refreshing "The Law" would be if normal people could understand it without "properly credentialed" interpreters.

Or maybe we should just nuke the entire site from orbit. It's the only way to be sure.

Posted by: Vercingetorix at June 28, 2012 11:25 PM (pOUA4)

346 OT: Freedomworksforme.com is accepting inputre the GOP convention. sounds like a job for the moron horde...only available for use today and tomorrow

Posted by: the Butcher at June 29, 2012 02:55 PM (8g9qq)






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