Supreme Court

Justice Ginsburg Attacks Chief Justice Roberts for his "Crabbed Reading of the Commerce Clause"


Although the Supreme Court's four liberal justices joined Chief Justice John Roberts in upholding ObamaCare's individual mandate under Congress' Tax Clause powers today, the liberals were not so happy with Roberts' decision to reject the Obama administration's expansive Commerce Clause arguments. Here's Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, attacking Roberts for daring to suggest that the Commerce Clause isn't a blank check:

The provision of health care is today a concern of natonal dimension, just as the provision of old-age and survivors' benefits was in the 1930's.  In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care.  Congress chose, instead, to preserve a central role for private insurers and state governments. According to THE CHIEF JUSTICE, the Commerce Clause does not permit that preservation.  This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

Since 1937, our precedent has recognized Congress' large authority to set the Nation's course in the economic and social welfare realm…. 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."

So at least Roberts got the Commerce Clause right.

NEXT: Issa to Obama: What Happened to Obamacare Not Being a Tax?

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  1. Shorter Ginsburg:

    “Fuck you, that’s why.”

    1. Fuck, you beat me to it.

      1. I’m lucky I got a break. My boss took his boot off my neck for a few minutes.

        Anyway… we’re fucked.

  2. I don’t want to frighten anybody, but four weird riders on white, red, black, and pale horses just galloped by my house.

    Oh, and it’s started raining. Frogs.

    1. The black horse was socialism.

      1. A quart of wheat for a day’s wages, and three quarts of barley for a day’s wages, and do not damage the oil and the wine!”

        Sounds about right

  3. the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy

    Back when Separation of Powers meant something.

    1. the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy

      Yeah, it sucks when your fascist policies keep violating the checks put in to prevent a totalitarian government, doesn’t it?

      1. What are you, sarcasmic? One of those filthy racist breeder closet-homo Tenth Amendment-huggers?


  4. How nice of Mr Chief Justice for wearing a condom before raping the Constitution.

    1. Seriously, I fail to see how the functional result is any different than if he had upheld the Commerce Clause rationale.

      So we can be forced to purchase anything under the sun so long as the penalty for not purchasing it is monetary instead of punitive (although if you refuse to pay the monetary penalty, it becomes punitive). How does that functionally limit the govt’s power in any substantive way more than if the commerce clause rationale had been upheld?

      1. although if you refuse to pay the monetary penalty, it becomes punitive

        That’s not true. They can’t imprison you for not paying taxes. They can imprison you for tax fraud, but not for refusing to pay. If you refuse to pay then they can steal your property, but they can’t lock you up.

        1. Wesley Snipes may disagree with you.

          1. He was convicted of failing to file, not for failure to pay.

            1. He filed.

              He claimed a tax liability of 0.

              They jailed him for three years on that misdemeanor.

              1. And they’ll tell you that claiming a tax liability of 0 when you in fact have a higher liability is fraud.

                This is different from claiming a tax liability of X and refusing to pay X.

    2. He’s going in dry on the Constitution.

  5. May I suggest that we stop referring to it as the “Commerce Clause” and start calling it the “Enabling Act?”

    1. I like it.

  6. Today’s irony: pancreatic cancer survival is dependent upon the flourishing of a free market in health care.

  7. you know, the fact that Ginsburg is disappointed almost makes this all worthwhile.

    1. She can afford to be disappointed. She won.

  8. The provision of health care is today a concern of natonal dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s.

    Beg the question much? Why is health care (and old-age and survivors’ benefits) a concern of “national dimensions”, and not a concern of individual dimensions?

  9. Fuck liberals, you won! Now you have to give us a papercut and pour lemon juice into it?

    1. Or sit on our chest and drip a loogie into our mouth?

  10. efforts to regulate the national economy in the interest of those who labor to sustain it.”

    You know who else regulated the national economy?

    1. Arbeit macht frei, bitchez!

  11. from Kennedy:

    Congress has impressed into service third parties, healthy individuals who could be but are not customers of the relevant industry, to offset the undesirable consequences of the regulation. Congress’ desire to force these individuals to purchase insurance is motivated by the fact that they are further removed from the market than unhealthy individuals with pre-existing conditions, because they are less likely to need extensive care in the near future. If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.'”

  12. [to be recited in the voice of Edward G. Robinson]

    Where’s your schadenfreude now, libertarians?
    Too soon?

    1. Too many libertarians thought that because they had a naked woman in bed with them, they had scored.

      Turned out she was just crazy and doesn’t want to be touched.

      1. Might be a good time to update your blog, Paul.
        Suggested headline: CROW. IT’S WHAT’S FOR DINNER.

        1. I can’t afford Crow.

          1. You have no choice in the matter. It’s a mandate.
            I mean a tax. Er, make that a penalty.

      2. Funny, I remember an idiot in college who that actually happened to.

        1. Have you and I met?

    2. That will come when you are denied care and die in the system your team created. I can wait.

  13. Retrogressive?


  14. The left liberals who whine about it are moronic. Because they won. Across the board. And it is indeed a win for blanketing the commerce clause on every aspect of life.
    It’s entirely disingenuous of the court and the analysts to consider this ruling a “power to tax” issue alone, and naive for libertarians to find solace in the commerce clause alleged inapplicability. The theme of the entire legislation is commerce regulation — insurance company requirements, bureaucratic specifics on management, care provider requirements, control of transactions, visits, offerings…. not to even mention the consumer/citizen subjugation.
    So SCOTUS can justify it on any contorted statist’s dream that they can find and say it’s not associated with the commerce clause. Yuh, right. Did they even look at the legislation?
    At the end of the day, it is control over business commerce. Interstate shminterstate, whatever.
    The ruling indeed expands the commerce clause applicability. It’s been bad for a long time. But this just flashes it like a neon-sign — “Call it whatever the hell you want, but just do what we tell you.”

  15. Even though I acknowledge that the factual statement that follows the phrase “Beyond question” is true, I still hate her for using it.

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