Is There a Silver Lining to the Supreme Court's Obamacare Decision? Q&A with Reason Magazine's Peter Suderman


In a 5-to-4 decision, the Supreme Court upheld the Affordable Care Act by ruling that the individual mandate is legal under Congress' power of taxation, while giving states more flexibility in deciding whether to participate in the law's Medicaid expansion.

What does today's decision mean for the implementation of the law and the political effort to repeal it?

Nick Gillespie sat down with Reason Magazine Senior Editor Peter Suderman to discuss today's ruling and its implications for health care policy.

Approximately 8 minutes.

Camera by Jim Epstein and Meredith Bragg, and edited by Epstein.

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NEXT: Thank You, John Roberts, You Right-Wing Bastard

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  1. Yes, of course there is and the President already laid it out. It’s called restoring and protecting the rule of law:
    “Whatever the politics, today’s decision was a victory for people all over this country whose laws will be more secure because of this law and the Supreme Court’s decision to uphold it”

    1. The Judicial Branch is supposed to provide a check against the Legislative Branch in order to provide protection of individuals against the tyranny of the majority. They are not supposed to just rubberstamp everything the Congress passes.

      1. Oh, now! Come on! Nothing was merely rubber stamped. Roberts helpfully rewrote the statute for them too. Wasn’t that sweet of him?

    2. And what part of the rule of law allows them to ignore Tenth Amendment restrictions on federal powers and my First Amendment freedom of association? I see nothing in the Constitution saying either healthcare or insurance comes under delegated federal powers. If I don’t want anything to do with an insurance company, what in the Constitution says they are allowed to make me?

      1. Silly people! The Tenth Amendment only matters to racists who eat babies!

        /leftist stoopidity

        1. Nobody said anything about eating babies.

          1. Appropriate how you answered for “leftist stupidity”. You certainly are an expert!

            1. http://www.merriam-webster.com/dictionary/racism

              Amazing… all those years in college, and yet the stoopid leftist cannot understand that one particular word.

    3. Say, are you the benji from “Faulkner’s “The Sound and the Fury”. Because you sound like it. You speak of restoring and protecting the rule of law , quoting a Chicago Thug-in-chief President who rides roughshod over existing law and the Constitution? Who seeks to punish states that don’t do his bidding?

      You and Faulkner’s benji appear to be joined at the hip.

  2. The only silver lining is that this will perhaps bring the zombie apocalypse here 4 or 5 years earlier.

  3. I have a question, which I haven’t seen answered anywhere else: Since the mandate penalty is now a “tax,” can a suit be brought on the grounds the tax is unconstitutional in 2014, after the tax takes effect? Or has the constitutionality of the tax been decided already?

    1. Congress has carte blanche to levy taxes. So a suit could be brought, but the result would be a foregone conclusion.

      1. Not necessarily. A tax has to originate in the House. Obamacare origniated in the Senate.

        1. If I recall correctly, they got around that by originating a shell bill in the house, and amending it after it passed to match what the Senate passed.

    2. I’ve actually had the thought that Roberts set a question like that up. From my (limited) understanding of law, it looks like that portion is still open.

  4. Right, they can’t force people to do anything under the commerce clause. They just have to tax people who are non-compliant and jail people who don’t pay the fine. That extra level is a real silver lining.

  5. And now the Obamacare Law is a “Tax” bill and its repeal can’t be filibustered in the Senate. At least that’s the word on the street among the street performers/constitutional scholars.

  6. No there is not.

  7. Roberts saying that Congress can regulate commerce, but can’t create commerce in order to regulate it, which is what Obamalamadingdongcare essentially does, is at least a good thing.

  8. The Supreme Court has made itself irrelevant. They just blow with the wind. It’s good to really see it in stark detail. Like the British Monarchy, the Supremes can cause some temporary annoyance and expense, but otherwise are little more than a constitution vestigial tail. An inconvenient reminder of what once was. Never again will I waste time paying attention to their antics.

    I no longer care.

    1. What a wonderful summation of my thoughts. However, I care, but I no longer give a fuck.

  9. Not that I believe he will actually do this, but some people are making a fairly convincing argument that since Block Yomomma has already granted large numbers of executive waivers to the law, that Mitt Romney could just grant a blanket waiver to everyone in the country.

  10. Why is Suderman yelling?

    How is there a silver lining in the Court granting the Congress unlimited power to tax? Because the state doesn’t rape you without lubrication?

  11. As someone on Zerohedge pointed out {no doubt a commie nazi as he seems to believe in ‘immigration law’} – part of the justification here is the cost of freeloaders.

    Well, many {even most} of the freeloaders are illegal immigrants, as well as the unemployed or working poor that don’t pay tax at all.

    So what we seem to have here is failure to communicate:

    Arizona can’t try to stem the tide of people costing their hospitals and infrastructure a ton of money by trying to assist the Feds with the immigration/border control the Feds {Dems} plainly don’t want to *actually* enforce – so the Fed’s powers are exclusive even when they’re derilict.

    1. So far so good, but here, the ‘freeloaders’ argument won’t even allow a border state, faced with real carrying costs, to make unlawful presence in the state a crime, which would seemingly be totally permissible under their police power…

      Anyhoo, the cost of freeloaders as to medical services now justifies a tax, or penalty, or whatever, on everyone who doesn’t have insurance – regardless of whether they *actually* use health insurance *and* don’t pay for it….

      So, taken together, it seems as though American taxpayers are being told that while they will be fined extra for not having health insurance, illegal immigrants {many, or most – but not all, to be fair} will continue to freeload…

      So Americans have no right to demand that their government enforce immigration law, can’t pass laws to assist with enforcement, and can be fined for not buying a product that, in sum and in substance, is going to be provided ‘for free’ to the very illegal immigrants flooding hospitals [hey – they are].

      I’m being a little glib and curt, but… seriously…. American citizens are now being taxed to provide medical care for illegal immigrants who will contrinue to flood into the country, in part, to receive medical and other benefits the government may not actually provide to the taxpayers who are funding it.


      I don’t mean, in all seriousness, to bash unlawful economic migrants – but it seems like, once again, these Ivy League eggheads have screwed us all.

    2. Most of the freeloaders are illegals? You’re going to need a giant citation for that. And Maybe they wouldn’t be freeloaders if they were legal (there is no simple way to do this now unless you have a lot of money and don’t mind waiting a decade).

  12. Regardless of where you might stand, rest assured that all your base are belong to cryptofascism.


  13. if you dont like obamacare move to canada!


  14. The commerce clasue defense is obvious nonsense, you can’t regulate commerce where there is no commerce. The logical conclusion of that is that all the local and state regulatory agencies would be able to compel activity; the lolcal zoning board could force you to build on or farm or pasture your land, the health board could force you open a restaurant just to commence inspections.
    Another way to put it is “regulate” is a tarnsitive verb. You regulate a thing. So there has to be a thing there in the first place for you to regulate. To mandate people buy insurance is to COMPEL activity, not regulate it.

    However, the tax defense/interpretation I don’t find as stupid. Congress does indeed have the power to tax income, and so logically exemptions and deductions are legal, because those are NOT taxing something. But to tax income, an affirmative action, based on some OTHER activity you engaged in… Does the 16th allow for that? It doesn’t explicitly say Congress can’t do that, levy the income tax based on behavior. But then again it doesn’t say it can. Exemptions and deductions are the only things that are certainly within the scope of the 16th.

    Is there already a precedent set I dont know about? Anybody know?

    1. Oh yeah, and obviously for the “it’s a tax’ defense to fly, it actually has to be applied like a tax, that is you can’t end up owing more than your income because of it.

    2. Does it matter? They will do what they want, and you will take it. What part do you not understand?

    3. The commerce clasue defense is obvious nonsense, you can’t regulate commerce where there is no commerce.

      Hi! Have we met?

      Wickard vs. Filburn

    4. “…the local zoning board could force you to build on or farm or pasture your land.”

      They can already do that through eminent domain/blight LOL!

    5. IIRC the 16th says congress can tax income “from whatever source derived”. “Source” cannot be transmogrified into “Behavior” — unless, maybe you are Ruth Ginsberg or John Roberts.

      And btw the rest of the 16th’s language is at pains to distinguish itself from the wording of Article I, Sec. 2, clause 3, to emphasize that income taxes are not “direct taxes”.

      1. “The “[s]hared responsibility payment,” as the statute entitles it, is paid into the Treasury by “taxpayer[s]” when they file their tax returns. 26 U. S. C. ?5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. ?5000A(e)(2). For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status.”

        So, yes, it does appear to meet the criteria of taxing income as set out in the 16th, and does not appear to be a direct tax.

        It’s indistinguishable from an income tax levied on everyone, with a credit for those who have health insurance.

    6. Twist the language like a lawyer. America is fucked. A tax has to be applied indiscriminately so the “mandate” is a penalty. A penalty is for breaking a law. Therefore, the law that is broken is “you must buy healthcare.” Next: “You must buy US Debt.”

  15. There is no silver lining, just a meaningless academic footnote of interest only to law professors and those, like George Will, desperately looking for a “conservative consolation prize.”

    1. It was nice to read through many thoughtful comments, without the smattering of f-bombs, so’s-your-old-man slams, and non-sequitur keyboard hiccoughs.
      Much angst out there and I sadly must agree.
      I have to say Becky is right on. This was a contortion, illogic enshrouded in quasi black-robe respectability, ruminations on a word puzzle. They can’t even agree that the legislation stands on crackling ice, weighed down by “maybe tax justification — no! err, maybe commerce regulation! Hmmm, or what about religous freedom… or, oh, hell, I dunno. We nine call it 5-4, and it’s the law of the land. See ya all in the fall.”
      Perhaps if there is any silver lining at all, it’s the proof that individual liberty has been dead a long time. Logner than all of us have been around. And it ain’t coming back soon. Perhaps it will mobilize libertarians a few generations from now.

      1. “a contortion, illogic enshrouded in quasi black-robe respectability, ruminations on a word puzzle”

        Yes, quite an abomination of human creativity.

        The ACA is a 2700 page new edition of Book of the Dead. It creates a new species of bureaucratic superparasites, genetically engineered to defraud, extort, steal, deter investment, deter entrepreneurship, deter employment, and finally, when you need it the most, deny medical treatment, or provide incompetent medical treatment, and kill you.

        Mary Shelley would be proud. This monster is bigger, uglier, and more violent than any force ever fielded by the Dept of Defense.

        If not repealed, it will kill more people than Hitler, Stalin, and Mao combined by the year 2050.

      2. Further, the ACA is a de facto monopoly, and plans to destroy private insurance by design.

        A poison pill Lucrezia Bogia would be proud of.

        Monopolizing a market of a life-saving good or service causes diminished quality and quantity of that good/service, and the increased loss of life caused by that monopolization is tantamount to genocide.

        If there was a Mount Rushmore for genocide leaders, Obama will be on it if this legislative fecal mass survives attempted repeal.

        Killing markets for products that save lives is the same as directly killing people. Why? Because no products or services exist without a market. Statists claim markets deny these goods to the poor because of high costs. It’s true a market tends to deny preventative services to poor customers, but the law already mandates emergency service be rendered to all people with imminently life-threatening ailments, and I agree with that public service. But distorting markets into oligarchies and de facto govt agencies will cause quality losses and shortages all over the nation, and will cause even more intrusion until the govt nationalizes the whole industry like in the UK.

      3. Then we will have genocide scandals like in the UK like the one revealed the other day where hospitalized patients are declared untreatable and even have feeding tubes cut off without family consent.

        Maybe this is the UK’s slow revenge on us. In 1933 JM Keynes infected FDR’s head with visions of how to sell tyranny in compassion drag.

        Then the NHS served as a model for where the statists are now taking us. We are well on our way to being a second rate power. China is now more capitalist and free than we are.

        Y’all better get a Mandarin language book. A little lingo will come in handy when the Chinese repo our country and enslave us. “Dock that round-eye a day’s pay for nappin’ on the job!”

        By 2100 we will be in living in a sequel to Logan’s Run.

  16. Well, a silver lining might be that the last time Obamacare was the focal point of an election, the dems lost big time. What happened in Wisconsin proves that people will vote on the issues, not the candidate.

    The bad news is that the government is now able bypass the commerce clause and make me buy something, because that’s now some sort of tax.

  17. Lots of speculation that Roberts changed his opinion at the last minute, perhaps due to pressure felt from the president threatening to run against the Court if they struck it down.

    Maybe Roberts sees the Court as vulnerable to attacks as an ultra-elitist, shadowy, arbitrary, political, corrupt institution long overdue for serious reform. His silver lining? The Court lives to make shadowy elitist arbitrary politically motivated decisions another day.

    1. “Ruling’s I disagree with are shadowy, corrupt, arbitrary, and politically motivated. Who needs a Supreme Court anyway? We need a beneficent dictator who thinks in lockstep with me!”

      – shorter Tony

      1. Actually all I want is a government that tilts more in the democratic direction. And small things for now. Routine votes in the Senate should be majority votes. The Supreme Court and Congress should be at least double their sizes. And corporate bribery should not be constitutionally protected speech.

        1. Slippery slopes, in other words.

          Or, one-party rule, to be more precise.

    2. Fuck you Tony.

      That’s all, until the NASCAR bill passes. $500 a month in tax credits if you spend it on NASCAR shite.

      1. I fully expect the Tea Party government to enact such garbage.

        Limited power is a tough sell to people with power. Just ask Senator Rand “womb police” Paul.

        1. Especially to leftists with power.

          1. Especially to people who are convinced of their own small-government righteousness.

  18. Silver lining? I’m not sure guys like McVeigh come along that often, or in large enough numbers.

  19. A fascist Health System to go with the fascist War, Security and Police State.

  20. This is sort of a reverse subsidy, no? If so, its an inevitability that Congress will soon threaten to bitch slap me for NOT purchasing a hybrid or mounting solar panels on my goddamn roof.

  21. Chief Justice Roberts just told Congress that it can coerce people to enter into private contracts by threatening them with taxation if they don’t comply. Yes, Roberts pushed the commerce clause door slightly more closed — but in so doing, look at the Pandora’s box he opened. Today it’s insurance contracts. Tomorrow, investment contracts? Or employment contracts?

    Consider this modest proposal: Let us enact a law mandating that all adult citizens must spend at least five years working for Waste Management, Inc. (http://www.wm.com/) or an equivalent company in their locality. They must spend those five years performing public sanitation, such as picking up trash, draining portable toilets, and sweeping city streets. All who refuse will be taxed until they comply. This is not slavery because citizens will be paid at least the minimum wage. Those who object are “free” to refuse and simply pay the tax.

    Waste Management and other employers can be “motivated” to hire these citizens by imposing a heavy tax on them if they refuse, one calculated to outweigh the cost of hiring.

    The government has a rational basis for this: the physical exercise involved in such manual labor would reduce obesity, thus lowering health care costs. This program would also improve public sanitation and reduce unemployment.

    Tell me how such a law would be unconstitutional now, in light of the Supreme Court upholding the Obamacare individual mandate. I dare you.

  22. Here’s a silver lining:

    This Obamacare bullshit will fail, and fail miserably.

    Bonus: Perhaps Tony will die of AIDS.

    1. Not due to “lack” of treatment at a Govt hospital, but rather from a dirty needle used by dismissal-proof, layoff-proof, discipline-proof, negligent, abusive and uncaring Public Health Employee Union staff. This is what the health system will look like in twenty years, when the staff will be drawn from the pool of job applicants who had also applied at the TSA.

  23. Affordable Care Act by ruling that the individual mandate is legal under Congress’ power of taxation, http://www.zonnebrilinnl.com/z…..-3_18.html while giving states more flexibility in deciding whether to participate in the law’s Medicaid expansion.

  24. Its a nice meeting of storng judges, hope they will improove the power,

  25. Land of the free and home of the brave?

    What a freak’n joke. What smoke we blow up our own asses to make us feel different than the rest of the sick, worthless world.

    If you’re in the military, you really need to assess what exactly you’re “defending”. I’m not so sure it’s worth defending anymore.

    And don’t you dare say you’re defending freedom and liberty: That would be an absolute lie.

  26. There is no silver lining. Why? The Commerce Clause is already corrupted. So limit the CC now but get it in under the Taxing Authority. The result is that Congress can now tell us exactly what to do absolutely by fiat. I guess that makes Obama a King. All Hail the King!

  27. Obama can now pull a Putin and make himself a true King in place by divine right. We want to be a Christian nation, don’t we?

  28. Liberty died yesterday.

  29. Where did I see that blog comment about a group of black-robed Government Employees voted to give the Government more power?

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