How Judicial Restraint Shaped John Roberts’ ObamaCare Decision

The chief justice’s deferential stance saves the president’s health care overhaul.

Judicial restraint is the idea that judges should defer to the will of lawmakers whenever possible, turning to the U.S. Constitution on only the rarest of occasions in order to nullify a duly-enacted law. One of the earliest and most influential proponents of this idea was Supreme Court Justice Oliver Wendell Holmes (1841-1935), who routinely criticized his fellow justices for striking down legislation and preventing “the right of the majority to embody their opinions in law.” As Holmes once put it, “If my fellow citizens want to go to Hell I will help them. It’s my job.”

Holmes was a great hero to the left-leaning activists of the Progressive era, who enjoyed reading his sharply-worded dissents attacking the Court’s majority for striking down various economic regulations. But judicial restraint has also had its champions on the American right. Conservative legal icon Robert Bork, for example, famously argued that “in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities,” and that judges should therefore act accordingly by deferring to lawmakers on most matters.

Chief Justice John Roberts also believes in judicial restraint, or judicial modesty, as he described it during his 2005 Senate confirmation hearings, and that belief came shining through yesterday in his majority opinion in National Federation of Independent Business v. Sebelius. Although Roberts rejected the Obama administration’s novel claim that Congress may force Americans to buy health insurance as part of its power to regulate interstate commerce, he nonetheless found the health insurance mandate to be lawful under a different constitutional provision, Congress’ power to “lay and collect taxes.”

“The text of a statute can sometimes have more than one possible meaning,” Roberts wrote, before proceeding to embrace the only possible meaning that would allow the statute to survive. “The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution,” he continued. “Granting the Act the full measure of deference owed to federal statutes, it can be so read.”

And so judicial restraint reared its head. In fact, as an authority for his deferential maneuvering, Roberts turned to none other than Justice Holmes, citing the famous jurist’s concurring opinion in the 1928 case of Blodgett v. Holden, which declared, “between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”

In other words, the tie goes to the government.

Many of Roberts’ critics will no doubt be tempted to denounce this ruling as an example of judicial activism. But in fact the opposite is true. By employing a method of statutory interpretation designed to give Congress and the White House the benefit of the doubt, Roberts exhibited the hallmarks of judicial restraint. “It is not our job,” he declared, taking yet another page from Holmes’ playbook, “to protect the people from the consequences of their political choices.”

Today’s conservatives frequently complain about the dangers of judicial activism. Perhaps now they’ll be more alert to the dangers of judicial restraint.

Damon W. Root is a senior editor at Reason magazine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • o3||

    roberts crafted a nuanced und statesman-like decision while limiting the commerce clause.

  • Whiterun Guard||

    Like Bush put together a nuanced and statesman-like reason to wage an entirely legal and necessary war in Iraq?

  • o3||

    where's the nukes? =/ where's it hurt?

  • wareagle||

    no nukes; gas. Saddam used it twice. The news pre-dates the Iraq invasion. That going in was a bad idea does not help your weak argument.

  • o3||

    so you think congress would've voted for war based on 20 yr old sarin gas we already knew about?

    it made a funnys!11!!11

  • wareagle||

    Congress voted to authorize the use of force, to include a host of prominent Dems. You'll have to ask them to explain their rationale but, basically, they did vote for war.

  • o3||

    not my question

  • fish||

    fuck you

  • ||

    Except it's not a tax. And if it was a tax, then the SC is not allowed to rule on it till it is levied. So any way you slice it this was a bullshit decision.

  • stuartl||

    If it is a tax, did Roberts intentionally (or unintentionally) leave open the door for a second challenge?

  • ant1sthenes||

    Roberts' job isn't to be a statesman, it's to honestly interpret the terms of a contract in case of dispute.

  • Dr. Thaddeus Tingleberry||

    That's a nuanced and statesman-like way of saying he engaged in bullshit.

  • Fist of Etiquette||

    You know what else would have set precedent on limiting the Commerce Clause? Shutting down the Commerce Clause argument and not twisting the law into something legislators did not intend just so you could win a judicial restraint medal.

  • Auric Demonocles||

    I'm pretty sure he'd have a better shot at the award if he hadn't done a Ctrl+H on the bill with 'penalty' and 'tax'.

  • Eduard van Haalen||

    Rewriting a statute isn't restraint.

    And if he thought the mandate was in fact a tax, then he should have thrown out the case as premature under the Tax Injunction Act. Instead, he pretended it wasn't a tax for statutory purposes while being one for constitutional purposes.

  • ||

    If a statute is legitimately misusing a term, is what Roberts did really re-writing?

    If it looks like a duck, and quacks like a duck, it's not a frog.

  • Bill Dalasio||

    Except, the law's authors specifically designated the mandate as a penalty and not a tax. They specifically rejected the notion that it was a tax.

  • ChrisO||

    If the mandate is actually a tax, there's also an issue of the act's constitutional validity under Article I, Section 7, which states: "All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills."

    Obamacare originated in the Senate, I believe.

  • Politics of Logic||

    Wow. Missed that angle. If true, sounds like grounds for an appeal of the law.

  • Politics of Logic||

    It appears some legal maneuvering allows this bill to have officially originated in the House, though it obviously did not. From Wikipedia:

    "The Senate failed to take up debate on the House bill and instead took up H.R. 3590, a bill regarding housing tax breaks for service members.[161] As the United States Constitution requires all revenue-related bills to originate in the House,[162] the Senate took up this bill since it was first passed by the House as a revenue-related modification to the Internal Revenue Code. The bill was then used as the Senate's vehicle for their health care reform proposal, completely revising the content of the bill.[163] The bill as amended incorporated elements of earlier proposals that had been reported favorably by the Senate Health and Finance committees."

  • Whiterun Guard||

    Well I'd hate to see what an activist justice would have done.

  • o3||

    then take a look at the clowns who passed SB1070 up the line

  • wareagle||

    maybe those "clowns" thought the feds ought to take immigration law seriously and felt a bit embarrassed that a state was calling out DC for not doing so.

  • o3||

    and that's judicial activism!

    thanks

  • wareagle||

    no, that is justices saying that if a law exists, either enforce it or move to repeal it. Ignoring it is not one of the choices, not if doing so infringes on the rights of citizens.

  • o3||

    ur trying to defend an unconstitutional law? did i get that right?

  • BelowTheRim||

    “It is not our job,” he declared, taking yet another page from Holmes’ playbook, “to protect the people from the consequences of their political choices.”

    It is his job, I guess, to use mental gymnastics to uphold legislation to get around the constitution.

    Sweet. Roberts, again you are a disgrace.

  • wareagle||

    activism/restraint; prohibition/alcoholism. These post-mortems are getting tedious. The man created an argument that the administration was not making; if anything, the liberal line was that no tax was involved in Obamacare.

    And all this bullshit about 1) the court being "relevant" and 2) the end to claims of a right-wing court will be forgotten when liberals get pissed about the next 5-4 decision. Because it's only partisan hackery if the left does not like the outcome; curiously, you never see a liberal justice even consider the opposing point of view.

    The truism remains: never underestimate the ability of Repubs/conservatives to get in their own way.

  • SusanM||

    And you seriously believe the"conservative" justices had the balls to strike down Obamacare? With the insurance companies who are going to benefit hugely from a mandate donating millions to both parties no one sensible is going to piss off a major donor like that.

  • T o n y||

    Alito was vocally concerned about the plight of the insurance companies during the oral argument (though I don't recall a word about the plight of the uninsured). Nevertheless he voted to strike the whole law.

  • SusanM||

    They only needed one so the others could save face - I'm sure most of the arguments were about who would take the fall for it ;)

  • wareagle||

    four of them did, susan. Kennedy's dissent torched the whole thing. Justices do not need campaign contributions; that is one of the benefits and pitfalls of the job: you can piss off anyone without consequence.

  • SusanM||

    Oh, come on. They didn't get those jobs for free. They have people they owe just like anyone else in D.C.

    But yeah, you're right - they are a lot more insulated from consequences.

  • wareagle||

    as it is, insurance companies may be a step closer to extinction. This whole exercise has been a back-door effort to enact single-payer anyway.

  • SusanM||

    And who would be running the system but the current executives of the insurance industry?

  • ||

    Um, that would be whoever is in charge of HHS. Currently (and if Obama is reelected) that's Kathleen Sebelius.

  • SusanM||

    Well, yeah, for now. When Obamas insurance company donors come to collect, what then? Maybe my scenario is a bit of a reach but they're bound to get a few bones out of this no matter what (insert dramatic music here).

  • T o n y||

    Stipulate that we must find a way to deliver universal access to healthcare in a way that does not permit free riding. How is Obamacare not among the most libertarian possible means? It keeps private-sector healthcare and health insurance intact, it simply provides a tax incentive to engage in (what both Romney and Obama call in their respective laws) "personal responsibility" via the private market.

    For this exercise you are not allowed to argue that people who can't afford healthcare should just die on the street. And no disingenuous copouts about private charities.

    So what's the libertarian alternative to this freedom killing horror? This was a bill that had to pass the US Senate--hardly a socialist enclave even in 2009. There seem to be a lot of hysterics on the right, but total silence when it comes to alternatives. Probably because this was their idea first.

  • SusanM||

    First, health insurance is NOT health care access. Plenty of people who need care can't get it because their insurance, even now, won't cover it or will refuse to cover something they said they would. How does Obamacare prevent that?

    Second. Turning the people you want to help into "freeloading criminals" is not a very good PR move, yes? The reason some people don't have insurance is because it's too damn expensive for so many. Now they're criminals to be punished as well as poor. How does that help?

  • T o n y||

    I said it was the most libertarian possible means--which implies that it is the least effective. So I agree with you in part. (I'm for something like universal Medicare.)

    This law makes criminals of no one, but does carry a tax penalty for the "uninsured-by-choice" i.e., those who can afford to be insured but aren't. The law expands access to Medicaid for those who can't afford it (though the implementation of that is now in question). I don't know where this business about this being a huge tax on poor people came from, but there is a sliding scale of subsidies to people who make up to 400% of the poverty level.

  • wareagle||

    libertarian does not mean what you think it means if you in any way conflate Obamacare with the term. Frankly, there should be no penalty for uninsured by choice, unless it is your belief - and being a liberal, that is entirely possible - that it is govt's role to punish people who make choices govt does not agree with.

  • T o n y||

    But should they still receive emergency medical treatment on the dime of the insured?

    Are you endorsing free riding, or are you endorsing checking people's pockets for credit cards before they are given lifesaving treatment?

  • wareagle||

    they already get ER care on others' dimes. And nice false choice there with freeloading vs. pickpocketing.

    Hospitals are legally bound to provide life-saving care, but you know that.

  • T o n y||

    And you're OK with that status quo? That's my entire question. How do you deal with that free riding problem? You seem to be saying we shouldn't deal with it.

  • Kat||

    Tony, how does Obamacare solve the free-riding problem and not expand it?

    Everyone is promised goodies while only a fraction of the pool will be forced to pay for everyone in the pool.

    Smells like more free-riding to me.

  • Bill Dalasio||

    Unmentioned in your analysis is the assumption that hospitals should be legally bound to provide service. So, your argument is for "the most libertarian possible means" given mandatory donation of services, a profoundly UNlibertarian assumption.

  • T o n y||

    Yeah I'm making a couple unlibertarian assumptions, but even you guys do have to live in the real world. Can libertarianism not cope with unlibertarian aspects of the real world?

    How many ways is libertarianism completely untenable?

  • ||

    Hey shithead. How many people were dying on the street before the government decided that ER's HAD to treat everyone that came through their doors?

    Give us a real fucking number or shut the fuck up already.

  • Bill Dalasio||

    Oh come on now, DesigNate, the robustness of civil society and the willingness of institutions to help never has anything to do with size and intrusiveness of government.
    /statist like Choany

  • SusanM||

    "Tax penalty" for the uninsured "by choice". I take the piss out of libertarians a lot but really, I like to think I know enough about it to say that penalizing someone in law for a choice is not at all libertarian.

  • T o n y||

    I'm trying to demonstrate that there is no "no-government-role" libertarian solution to the problem of a lack of universal healthcare. Obamacare intrudes minimally while still keeping that goal in mind--the only thing you have to do is pay a little extra in taxes if you don't want to be insured. It's even justifiable on libertarian grounds--it's the price you pay so that you're not a freeloader (since you're likely to need healthcare eventually).

  • SusanM||

    I may indeed need health care eventually. Will my unfunded mandate health insurance pick up the tab? Or, even under Obamacare, will I have to fight the insurance company for every dime that they'd already agreed to cover?

  • wareagle||

    jesus tony. Fuck no; even for you - the only thing you have to do is pay a little extra in taxes if you don't want to be insured. It's even justifiable on libertarian grounds - has to be among the silliest things ever posted.

    If you do not want to do something, there is no libertarian justification for the govt punishing you because of that decision. You, in essence, are saying that not buying health insurance is a crime. That is quite a precedent but I'm sure govt won't seek to expand on such a power.

  • T o n y||

    It's explicitly not a crime. It's a different tax structure for those who choose not to be insured.

    Are you suggesting that the only libertarian solution is to let people mooch off other people and not take personal responsibility for their inevitable healthcare costs?

  • Bill Dalasio||

    "I'm trying to demonstrate that there is no "no-government-role" libertarian solution to the problem of a lack of universal healthcare."

    In this, at least you are correct. There is no means that you can have a mandatory, compulsory, "universal" outcome that doesn't involve coercing people.

  • Mr. FIFY||

    "Obamacare intrudes minimally"

    He only sticks his dick in half-way, then.

  • Faithkills||

    Lack of universal health care is not a problem that needs addressed. It cannot be achieved and if it could, why would anyone want that?

    The last thing anyone wants is universal health care. People want good health care, and they want it to be good by their lights.

    Apart from being immoral, the primary flaw of obamacare is it must drive up costs. A lot.

    It exerts upward pressure on costs. There is only one way to exert downward pressure, unfettered competition. This system will attempt to contain costs by means of caps, quotas and regulation. Of course that must have the opposite result.

  • Faithkills||

    The simplest case is caps and mandates. And we see this in Canada and the UK most obviously. They implement price controls and this means providers will cut production to the minimal possible. Further they will all charge the basically same price, any productivity innovations will be captured by the provider and associated industry, not the customer. Occasionally there will be regulation to establish higher quotas, but much of the resources captured by providers will go towards lobbying against this, and public choice theory will mean they will be successful more often than not. But even when they are, the profit is captured as dead weight and is incorporated and spread all along the production chain. Arbitrary productivity increase mandates, quotas, will break the production chains in many cases. (somebody got used to a certain income and cannot adjust on a dime, so that business, (supply provider, service provider, whatever) collapses, causing liquidation and more loss of productivity. More resources are required for the same output, and this trend continues.

  • Faithkills||

    One profound and fundamental confusion many people have is with the word "profit". Profit happens regardless. The use of of profit is what is important.

    In a fully socialized model, like education profit is captured as leisure and status of people in the industry. Profit becomes an engine of corruption in a socialized economy.

    In a fully fascist model, like health care, profit is captured and diverted toward procuring continual market protection of the cartel or monopoly.

    In more free markets profit is maximized by providing better and cheaper products, and that profit is never an incentive to decreased efficiency. It may be re-invested, or simply extracted, depending on the best prediction of the business. In neither case does the profit have adverse effects on productivity.

    Even in the case of being simply extracted by shareholders or owners it will be spent in some other sector of the economy. If that sector is not fascist or socialized, that activity in turn becomes economic cycles which provide downward pressure on costs in those industries.

  • Faithkills||

    In collectivist economies, fascist or socialist, profit is made by pleasing the government at the expense of consumers.

    In a free market, profit is made by pleasing consumers.

    Further profit is minimized systemically, since in order to maximize future profit, often some must be spent on capital goods to increase efficiency in case of competition

    In socialized or fascised markets profit must be re-invested on state protection to prevent competition. None will go towards making a better or cheaper product.

  • wareagle||

    Stipulate that we must find a way to deliver universal access to healthcare

    no tony, I don't stipulate such. It is is not the responsibility of the federal govt to hand-hold poeple through every step of their lives. As it is, costs are rising because of govt involvement in the system, as they do with anything govt sticks its nose in.

    Also, care does not equal access. The poor are covered through Medicaid, which truth be told, is even more noxious than Medicare. Many of the uninsured CHOOSE to be so. And the "tax incentives" you hail are no more than social engineering; it's not the role of govt to push personal responsibility. That's why it is called personal responsibility.

  • T o n y||

    So your only alternative is to let the uninsured die in the street if they happen to fall ill or suffer an injury. I didn't allow that point of view as a response, but you are welcome to it, as long as you understand that it's outside the mainstream of social norms in this century.

  • wareagle||

    as always, resort to the "die in the streets" when you have nothing else. As it is, absolutely no one dies in the streets for lack of care. Period. Exclamation point.

    It is illustrative that you have never considered the possibility that some folks who choose to be uninsured may just pay for care on their own. Without govt help.

  • MattRomney||

    Again with the Straw Man

    No other alternatives? A competitive health care market that contains no government involvement would provide the universal access for anyone choosing to take part in the market. Econ 101, tony, learn it.

  • T o n y||

    Any evidence for that rather ridiculous claim?

    Where in Econ 101 does it say that any market will be universally accessible under any circumstances?

    Healthcare is not like other markets. Few people choose willingly to spend money in it, and its costs are often unpredictable and large.

  • Mr. FIFY||

    "Healthcare is not like other markets. Few people choose willingly to spend money in it, and its costs are often unpredictable and large... but Obamacare will fix all of that."

  • Raistlin||

    If control freaks like you would let the market free up, you would have your evidence. Let Geico, Progressive, USAA, the General and all the rest who want to get into the health insurance game participate and see what happens. Your intrusive providership restrictions are keeping the supply artificially small and prices are ridiculous. More intrusion will not help.

  • Torontonian||

    You know what happens to someone who doesn't have insurance and can't afford to pay his medical bills?

    All he has to do is demonstrate to a court that he doesn't have the assets or income to pay what he owes, and the court lets him off the hook.

    It's called bankruptcy protection, and it's worked fine for centuries.

  • T o n y||

    Hardly a free-market solution. Since you're in favor of government bailouts (more free riding) then why not just learn to love social insurance?

  • Torontonian||

    Tony,

    If the person can't pay for care, there are only two options... either the person doesn't get it (which I'm fine with), or the person gets it and someone else pays for it.

    Regardless of who else pays for it, the costs are the same.

    If the person has no insurance and defaults on the bill, the service provider takes a loss and raises the price of care for everyone else.

    But if the poor person has free (or underpriced) insurance, the insurer pays the cost and takes a loss, which then gets passed on to everyone else in the form of higher premiums.

    Either way, if the poor person gets the care and someone else pays for it, everyone else sees higher costs.

    There's no free lunch from giving insurance to the uninsured... the care they get still has to be paid for.

  • T o n y||

    Right. And all Obamacare does is expand subsidies to lower-income people and force people who can afford to be insured (but not the occasional catastrophic health event) not to be free riders.

    You don't have to like it. I don't like it and would prefer something else. But it's no more tyrannical or destructive of freedom than the prior status quo was or your solution would be.

  • Kat||

    I see the problem. Despite your deep affection for the term "free riding", you don't know what it means.

    Ya see, a free rider is one who enjoys the benefits of an activity without paying for it. Obamacare makes free-riding worse via subsidy to those the government deems ought to be subsidized. They enjoy health care (in theory) without paying for it. Hopefully, this clears up that particular confusion for you.

    Meanwhile, without government mandates, nobody would be free riders because if you can't pay, you don't get the good. Of course, this doesn't mean that the poor won't have access. Besides charity, there are also payment plans that can be worked out. And anyway, getting the hell out of the way of real competition would serve to lower healthcare costs, which would make it more affordable for everyone. Competition's good like that.

    You also seem to be deeply confused about health care and insurance. Insurance is not healthcare. Nor does having insurance guarantee access to any actual health care. It guarantees access to wait lists and runarounds. To get actual health care, you'll have to pay.

  • T o n y||

    I was hospitalized last year and without the care I would be dead and without the insurance I would be about $50,000 poorer. So what the hell are you talking about? Fuck private insurance. It is an inefficient means of healthcare delivery.

    A healthcare safety net for the poor is the alternative only to the poor going without healthcare. Charity la-la land is the world's biggest hand wave. Prove it. Prove that universal healthcare is possible without government subsidy. Otherwise shut the fuck up with your utterly preposterous and self-serving speculation.

  • benji||

    Universal health care isn't possible WITH government.

  • Bill Dalasio||

    I didn't allow that point of view as a response...


    Because Commissar Choany gets to decide what is an acceptable response.

  • ||

    $

  • Overt||

    Although I disagree with your premise that we "Must" find a way to deliver universal access, the idea that Obamacare is the most Libertarian option is plain silly.

    A more libertarian option would be that everyone gets a tax-free health savings account, paired with a high deductible (i.e. catastrophic protection) health insurance policy. Government would assist the poor with non-transferable deposits in these accounts. Everyone could shop for policies that suit their needs.

    Pre-existing coverage can be handled through government grants keeping premiums below a certain percentage of income, and requirements that insurance companies must pay your premium at another company if they drop you.

    The good thing about this system, is that it can also handle elderly benefits if society deems fit. As you get older (and premiums for insurance get more expensive) you qualify for more government assistance towards your care.

    It goes without saying that this is hardly big-L Libertarian. But it is more libertarian in that it:

    1) Encourages market principles, and gives people the ability to plan care for themselves.

    2) Limits gov intervention to the margins rather than dominating the industry to solve for a few cases of the unfortunate.

    I believe it also helps us immensely because it encourages people to become price sensitive- which is the only way (in the long run) that we bend the cost curve down.

  • BC||

    Stipulate that we must find a way to deliver universal access to healthcare

    We've already done that. It's called, "If you want healthcare, buy it."

  • ChrisO||

    Stipulate that we must find a way to deliver universal access to healthcare in a way that does not permit free riding.

    You lost me at the first sentence.

  • Pip from the forge||

    I'm a little disappointed that nobody here has volunteered the obvious alt text for that picture yet, to wit: Heil Obama!

  • Chili Dogg||

    Obama: "High-five, my man!"

  • VG Zaytsev||

    “It is not our job,” he declared, taking yet another page from Holmes’ playbook, “to protect the people from the consequences of their political choices.”

    That's just retarded.

    Is he too stupid to realize that he's discrediting the concept of judicial review there?

    Why have an independent judiciary at all if that's the case?

  • John||

    To protect our rights. Roberts answer would be that it is not the Court's job to keep the Congress from doing dumb things. It is the Court's job to ensure Congress doesn't exceed its own power.

    You and I both would disagree with him about the nature of that power. But I think we both would agree that it is not the Court's job to overturn every dumb law. And that is all he was saying.

  • toddb||

    The first thought I had when I heard Roberts was the 5th vote to uphold was "judicial restraint." I don't blame Roberts. He did exactly what Republicans chose him to do...which is defer to Congress.

    I guess all those conservatives and the Bush administration who were so concerned about picking a judge who was not "activist' just couldn't concieve of a day when that judge would be ruling on something like Obamacare...right?

  • CGeary44||

    He was clearly bending over backwards to uphold the law--in fact, his opinion displays the kind of reasoning that only a lawyer could accept--and maybe it WAS just out of a sense of judicial restraint. It seems to me, though, that if that truly was all that was going on here, he wouldn't have struck down the government's Commerce Clause argument, because he didn't have to. Traditional judicial decision rules, as Ginsburg pointed out, required upholding the law via the taxing power and, that having been decided, leaving the CC fight for another day. But Roberts wanted to have his cake and eat it too. Personally, I think his decision was motivated in large part by a desire to make the court "look unpolitical" in the eyes of the public and maybe, just maybe, because he is tired of hearing about how "his" court is really the Kennedy Court. You don't get to that position without a well-established ego, and it seems pretty obvious that Roberts wanted to have his name all over this, the most high-profile case in the last 50 years.

  • Dr. Thaddeus Tingleberry||

    I read the Slate article lamenting the "fast one" Roberts pulled by "gutting" the Commerce Clause. It's like progressives have grown collectively retarded in their attempt to conflate policy judgments with coherent legal analysis.

    Bear in mind - "Congress shall make no law" does not stand in the way of all sorts of laws, and "Equal protection" doesn't get in the way of race-based preferences.

    Where we are is when a decision comes down that Left or Right doesn't like, they smear it as 'political' - as if their support for the contrary position wasn't political.

    Whether or not you like the decision or the ACA/Obamacare - where we are is the judiciary gets to decide what words mean.

    Remember, this case could not have been 'justiciable' if it were a tax because of the anti-Injunction act...

    So it wasn't a tax.

    But then, if it was a penalty, it would come under the Commerce Clause - and that would be unconstitutional, since, ostensibly, the caselaw never recognized its use to regulate 'inactivity'.

    So to make it Constitutional, it had to be rhetorically transformed back into a tax {after not being one to be justiciable}...where it's okay Constitutionally even though.... wait for it... as the dissent notes, there has never been a tax on not-doing-something in the case law.

    I see this as a victory for government by rhetorical slight of hand and nothing more or less.

  • Dr. Thaddeus Tingleberry||

    Not expanding the commerce clause yet further is not the same thing as "limiting it" and strictly speaking, his remarks were not dispositive to the outcome and so were dicta.

    And I think of ole' Curious George Orwell's quote: "So much of left-wing thought is a kind of playing with fire by people who don't even know that fire is hot."

    When they can conjure rights up to protect you, they can conjure powers up to subject you.

    When they can make something a tax and not-a-tax at the same time just to allow government to do something...

    I don't know what it is... but it ain't a Constitutional Republic.

    Maybe it's Sweden.

  • SamFox||

    One thing lost in the discourse is the state of the economy WHY it's in such disarray. Govt itself is the root problem.

    How badly did we need govt mandated control or what ever you want to call it, over health care when the economy was in good shape?

    In the 50's when I was growing up my single mom raised my brother me. She mostly worked as a waitress.

    She was able to buy a small modest new home an almost new car. She paid for my medical bills when I as a young boy had infectious hepatitis. Before that, when my bro was born he had to have some hospitalization from serous pneumonia.

    Besides paying for the house, car med bills, she bought our clothes, toys, schools supplies, fed us, paid the utility bills all the costs associated with raising 2 boys by herself.

    The bottom line is that if the govt was kept out of our lives was in line with Constitutional restraints, we the people would mostly be able to pay our own way.

    Now you know why we need Ron Paul.

    It's the same old "It's the economy stupid!" thing. If the fed govt would let free markets operate quit killing off small business in favor of big corps., I doubt we would be having this conversation.
    {To B continued]

    SamFox

  • SamFox||

    SamFox comment continued:

    What I see is more govt encroachment into the free market system another debilitating attack on We The People.
    Such fed govt attacks encroachments are the problem. Not the solution.

    I am not a huge fan of RR. But he did get it right when he said something like "Big govt is the problem! NOT the solution!"

    Big govt is 1st cause here. And it is not a good cause for the person on the street.

    One Q: Why are insurance cos. not allowed by the feds to operate compete in every state? Something wrong with that pic!

    SamFox

  • T. Durden||

    The chief justice is right. The court is not here to save people from their elected leaders.

  • Kat||

    And here I thought it was a check on their power. Then, I guess the court is pointless.

  • T. Durden||

    The taxing power is unlimited unless it violates equal protection or due process as far as I can see. As it stands the court has no business in telling Congress how to best use its power under Article I. That is the job of voters.

  • Coach Panto||

    Durden is saying the court is not here to save us from constitutional laws. It is here to save us from unconstitutional laws.

    I think the ACA is unconstitutional because it punishes inactivity. Roberts might be playing politics by letting Obama lynch himself with the the rope he made rather than taking the rope away.

    Yes, Obama will lynch a few businesses and lots of jobs in the meantime, but it's like entrapment...sometimes a cop has to let an imminent crime happen so he can catch the offender in the act, and put him away for good.

    Or maybe Roberts is a closet communist. I'm betting he ain't.

  • Kat||

    Okay. But he doesn't seem to think the court is here to save us from unconstitutional laws either.

    I'm betting he ain't a communist either. Just an ordinary statist.

  • Coach Panto||

    Yeah I'm even more depressed after reading all the punditheads.

    It still hasn't sunk into even my jaded mind that in one ruling, 5 statists just asserted the power of the government to tax people for any inactivity the congress deems objectionable.

    And worse, even if you buy the (oligarchic) insurance, zero competition means the terms can be written so vaguely that insurance "companies" can declare anyone in default for, again, any activity or inactivity which might degrade "health".

    So in effect, the govt can compel ANY action for any reason, and give no reason other than "for health".

    Then they can essentially find anyone non-compliant anytime they want, and therefore have absolute arbitrary power to intimidate, rob, or imprison ANYONE, ANYTIME.

    Since tax power implies imprisonment power, they have literally outlawed noncompliance to any command they can conjure up.

    I hate to say it, but this is yet another in a "long train of abuses and usurpations".

    It is not yet grounds for "dissolving the political bands", but we're getting there.

    Absolute power must be resisted absolutely.

  • ||

    Many of Roberts’ critics will no doubt be tempted to denounce this ruling as an example of judicial activism. But in fact the opposite is true. By employing a method of statutory interpretation designed to give Congress and the White House the benefit of the doubt, Roberts exhibited the hallmarks of judicial http://www.maillotfr.com/maill.....-3_12.html restraint. “It is not our job,” he declared, taking yet another page from Holmes’ playbook, “to protect the people from the consequences of their political choices.”

  • bc15||

    We don't need judicial restraint: judges deferring to legislatures. We need government restraint: government deferring to people, by limiting its own powers and activities. A judiciary that limits legislative activity is not an activist judiciary if, in so doing, it is inhibiting an activist government.

  • SMoroz||

    We did not choose this legislation, it was rammed thru illegally as a reconciliation bill to avoid a filibuster. They extorted votes thru bribery (Cornhusker kickback and Louisiana Purchase) and lies (Stupak). Congress passed this against the wishes of the majority, so do not say it was the wishes of the people. That is as offensive as anything Congress did in "passing" this bill.

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