Hit & Run

ObamaCare Decision: Justice Kennedy Slams Colleagues, Rubio Warns of IRS Role, Government Still Can't Mandate Economic Activity


  • You're gonna get your health care, all right.

    Justice Anthony Kennedy, once considered the swing vote in the ObamaCare case, read his dissent from the bench, saying, "In our view, the act before us is invalid in its entirety." He slammed his ACA-supporting colleagues for "a vast judicial overreaching." The strongly worded dissent has some folks shivering.

  • Senator Rand Paul says screw the Supreme Court, "Just because a couple people on the Supreme Court declare something to be 'constitutional' does not make it so. The whole thing remains unconstitutional."
  • Senator Marco Rubio warns that the Supreme Court's tax-reasoned support for the Affordable Care Act "put all of these millions of Americans at odds and at war with the IRS."
  • The unusual rationale for the Affordable Care Act ruling caught legal scholars off-guard. "Many people were stunned."
  • The Supreme Court's decision, while upholding ObamaCare, left intact the presumption that the government cannot mandate that people engage in economic activity.
  • Now all of the fun moves to Congress, so the debate over government's role in health care continues.

NEXT: SCOTUS On "Police Power," or, How Romney Can Spin RomneyCare v. ObamaCare

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.

  1. Justice Kennedy can vote to uphold mandatory nutpunches tomorrow morning, and it still wouldn't diminish the bravery he displayed today.

    Pretty decent fellow, I'd have to say.

    1. Kennedy is a pimp. He could have never out fought Antonin. Until this day, I never knew it was Roberts all along.

      1. "Thomas is just not a wartime consigliore."

        1. Tell Obama it was just business.

          1. After all, we are not Communists [laughter].

      2. Roberts is Fredo?

        1. No Barzini. And it is not Kennedy who was the pimp, it is Ginsburg.

        2. We are all Fredo now.

  2. By the way, this whole thing clears the way for full-bore net neutrality regulation. Because it's a tax!

    1. Barack Obama, Our Taxploitation President.

  3. That HuffPo fainting over the 10th Amendment is both funny and pathetic.

    1. Amendment is both funny and pathetic

      It's scary, because there are college educated people who have a platform to reach millions of ears and eyes who think the federal government can do whatever the fuck it wants.

    2. I can't..I don't...wtf?

  4. The Supreme Court's decision, while upholding ObamaCare, left intact the presumption that the government cannot mandate that people engage in economic activity

    They can if they call it a tax.

    This potaytoh/potahto argument isn't getting us anywhere.

    1. Wasn't Airstrip One conquered by authoritarian wordplay?

    2. The downside: Congress can trample our liberty however and whenever it wants, so long as they use taxes to do it.

      The upside: People fucking hate taxes.

      1. this is the silver lining right here

        1. I don't think silver is the correct type of lining... I'm thinking tin, maybe aluminum.

  5. Can't find the link right now (work blocks most blog sites), but Will Wilkinson apparently called this yesterday. Pretty crazy accurate, too.

    1. It was a douche bag fuck up decision. Makes sense that a douche bag fuck up like Wilkinson would have been ahead of the curve on it.

      1. In tune with the Borg collective. Ooh, but Wilkinson is liberaltarian so he's the Borg specimen that wears an old Cato institute shirt. From before he got kicked out.

      2. Wilkinson is one of these guys who is so smart he disappeared up his own asshole.

  6. Can't be bothered to find the link, but Georgie Will paints this in the rosiest colors. Crazy?

    1. http://fullcomment.nationalpos.....obamacare/

      Here it is. A lot of people are making the "Roberts played the long game" argument. Maybe he did. But I think it was a losing one.

      1. Over at Cato there is an opinion up that this was an attempt to copy John Marshall's decision in Murbury vs. Madison. IDK, if it is, Roberts really screwed it up.

      2. It's like trying to set up the mousetrap for Mousetrap to work in a gale storm and hoping the strangers operating it years from now don't just ignore it or dick it.

      3. I am with you. It's unlikely there will be another law of this kind (requiring entry into commerce justified by the commerce clause), and I can't think of another issue where it would be necessary. If Congress was foolish enough to pass a law requiring people to buy broccoli or cell phones, sure, the Roberts court would probably rule it out of bounds. But normal commerce clause powers seem unaffected.

        And I think it's best to go with Chuck Todd on the politics, both short- and long-term: a win is a win and a loss is a loss.

        1. Dems thought this was a big win in 2010. Didn't work out that way. There are two political fallouts to this.

          1. Obama now has to defend what is an increasingly unpopular bill

          2. The Democrats now own the entire healthcare system and will fairly or unfairly be blamed for everything wrong with it.

          Politically Obama and the Democrats would have been better to have it overturned. I guarantee you if they had known how the 2010 mid terms were going to turn out, it would have never passed. The Supreme Court could have given them a pass and a way to energize their base. Now the other side is even more energized and they are stuck defending this.

          1. If there were no Obamacare the right-wing stupid machine would have ginned up some other reason for old white people to be hysterical over the black man to vote in large numbers in 2010.

            And I wouldn't be too quick to assume it will translate in the same way to 2012. A lot of the manufactured outrage was over the Medicare cuts. Romney has fully endorsed Ryan's plan to destroy Medicare, so the Dems will get to run on that issue this time. (And don't think they won't.)

            Romney, if he's smart, doesn't want to talk about healthcare at all, since a) he endorsed it originally and b) the weak economy is his main asset. Supporters have been begging Obama to defend the ACA on its merits and now he has no choice but to do so--merits that are individually quite popular, even as large amounts of rightwing advertising dollars have made the law in general unpopular.

            1. Bravo Tony you've set today's stupid bar with your usual high standards. Everything you just said is the opposite of the truth and has no connection to reality.

            2. The Republicans had nothing, no momentum nothing until August of 09 when people started to revolt over Obamacare.

              Face it Tony, the Dems blew the biggest majority in 30 years passing this thing. They will never see that majority again. And probably not have any realistic shot at getting the house back until at least 2016 and maybe not even then.

              The polls have gotten worse for this bill as time has gone on. 59% wanted it struck down. And it is only going to get worse as people blame whatever they don't like about health care on the bill.

              1. I'll bet this doesn't play significantly in the election either way. This has gone on for years and the Court has made its decision. Nothing is left to happen with this law except implementation, which will not be the horror show conservatives are pretending it will be.

                Far more significant will be the state of the economy and whether Romney's corporate sugar daddy money can make up for his relative lack of political skills.

                1. So it is so bad for Obama Tony that he is better off talking about the economy than this bill. Got it.

                  1. It is not bad for Obama that his signature law was upheld. A win is a win. But the election won't be about that law.

                    1. That's up to Romney. And Romney does not agree with you.

                    2. What? Barry doesn't have a "corporate sugar daddy"?

                      That's racist!


                    3. But the election won't be about that law.

                      Sure it will. Along with other things, some more important, many less.

            3. the right-wing stupid machine would have ginned up some other reason for old white people to be hysterical over the black man

              Tony's pimp hand is strong.

        2. normal commerce clause powers seem unaffected.

          I actually agree with that. I don't think Roberts was playing any kind of long or short game. I think he was trying to come up with some kind of rationale to uphold the law that wouldn't expand commerce clause powers any further than it has by previous cases like Wickard and Raich.

          He didn't want to strike it down on commerce clause grounds because he probably felt that it would call into question those aforementioned precedents. IOW he upheld it out of cowardice, but found a way to do so without having to further expand commerce clause powers. If there had been some way to just make it go away I think he would have preferred that.

    2. Crazy?

      No idea. Why don't you find the link, and post it?

      1. Never mind. John did your work for you. Thanks, John.

  7. I can't imagine how Roberts thought that this would make anything better-for either side of the argument.

    All it does is further drive the wedge between the arguments.

    Here's my favorite take.


    1. The guy has a good take but wow, needs to lay off of the coke a bit.

  8. "Just because a couple people on the Supreme Court declare something to be 'constitutional' does not make it so."

    Actually that's exactly what makes it so. Or is there another arbiter out there? Perhaps the same deity Mr. Libertarian wants poking around women's reproductive organs?

    1. The words in the Constitution.

      1. People like Tony regard the actual Constitution to be a superstition.

        1. And they don't want to poke women's organs.

      2. Which the supreme court gets to interpret... Or are bits of ink on paper going to self-animate and start making legal rulings?

        1. No we'll read them and interpret them AS THEY ARE IN ENGLISH. Your lack of that ability does not render the rest of us dependent on the Nazgul.

          1. What if "we" disagree? Isn't that why things end up at the Court in the first place?

            You're either trying to argue that there is a perfect understanding of the constitution present in an ethereal plane, for justices to either affirm or deny, or that your preferred interpretation is the only legitimate one, just because you say so.

            1. "Congress shall make no law abridging the freedom of speech."

              Seriously, is there any way to interpret this sentence that gives the FCC the authority to do what it does?

              1. Even if I give you that there are many more clauses in the constitution, some much more ambiguous.

                1. Give me an example.

                  1. Cruel and unusual punishment.

                    1. I'll grant that the Eighth Amendment's prohibition of "cruel and unusual punishment" is ambiguous, but even with it's extreme ambiguity, it's still reasonably clear as to what the authors intended.

            2. I actually agree with Tony here. That's why the last check on unconstitutional laws are by state and individual nullification.

            3. "or that your preferred interpretation is the only legitimate one, just because you say so"

              Like you've been doing?

            4. "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean?neither more nor less."

              "The question is," said Alice, "whether you can make words mean so many different things."

              "The question is," said Humpty Dumpty, "which is to be master that's all."

        2. Justices have not authority to use their interpretative faculties to re-invent the original text and intentions of the Constitution.

          1. What's ever stopped them?

            1. I suppose nothing. But it's seems reasonable to assume that because the Constitution's role is to limit the powers of the federal government, the intention was for the Judicial Branch to practice a restrained form of review, guided by the original text of the Constitution, or if need be in ambiguous clauses, supporting texts and a focused desire to conform to the original intentions of the Constitution's authors.

              1. "Limit" is a relative term. The constitution's actual purpose was to significantly expand the powers of the federal government relative to those under the Articles of Confederation. Case law has expanded that power further in the 20th century, and whether that's good or bad is certainly a legitimate debate. But there is no ultimate authority on what is correct (except, I believe, pragmatic results), and in the end it's a political battle. Liberals will work to keep the "Constitution in Exile" in exile and Scalia et al. will continue to work to turn the country into a third-rate hellhole. Democracy at work. What the original authors intended is relevant only to the extent that they were demigods who could predict what's best for the country forever. Which they weren't.

                1. "What the original authors intended is relevant only to the extent that they were demigods who could predict what's best for the country forever"

                  Or...we could ammend the constitution, you know, like we used to do. The ability to ammend the constitution is the only thing "living" about it, and IT is "Democracy at work". that was a lazy, cynical, cop-out answer tony.

    2. The Supreme Court once said that segregation and slavery were constitutional. I guess that made them so.

      1. They also said that the US government had to honor its treaties with the Native Americans, and we all know how well that went.

      2. Under Tony's theory, if I round up some people to go harass him because he's gay, then Congress passes a law saying he's not allowed to talk about it, then the SC rules it constitutional, the law isn't violating the First Amendment.

      3. They were so until they weren't. What alternative version of reality are you proposing? What decides whether a thing is constitutional if not the constitutional system itself?

        1. What decides whether a thing is constitutional

          The Constitution.

          1. In other words you, by fiat?

            1. No, the constitution you retard.

              1. The constitution is a piece of paper. It does not have the faculty to decide anything.

                1. NO BUT I CAN READ IT YOU FUCK

                  1. Cyto, he can't read a dictionary entry, so how do you expect him to understand the Tenth Amendment?

                  2. So you are the decider? Who elected/appointed you?

                2. You forgot to add "IT'S NOT A SUICIDE PACT!!!!" Tony.

                3. "The constitution is a piece of paper."

                  No, it's Liberty's guarantee, purchased with the blood of patriots.

                  1. Funny how leftists want to use the Constitution, but only when it gets them more power.

                    Wait... that's not funny at all. It's fucking pathetic.

        2. Tony, part of the constitutional system is the fact that states are separate sovereigns. They can refuse to take part. They can refuse to consume resources to implement the act. The have the power of nullification.

          Individuals can nullify. If refusal to pay the penalty/tax comes up before a jury (which I don't know if it would), they can refuse to convict regardless of the evidence.

          1. States are separate sovereigns. They can refuse to take part.

            The Supremacy Clause would like to have a word with you.

            1. Supremacy Clause only applies for enumerated powers.

              So, if a state decides that the federal government is acting outside of its delegated powers, it may nullify the act. It is a separate arbiter of what is constitutional.

              1. Tell that to the IRS. They're the main player in this now.

          2. If enough people get pissed, you have 1860-1865.

            1. I live in suburban Texas, and I notice a pleasing non-trivial number "SECEDE" bumper stickers.

              1. Every time some disingenuous wacko doesn't get his way, he threatens to move to another country or secede from the Union. Neither is going to happen.

                1. I agree with you about individuals who say, "I'm leaving! Which country should I go to?" I don't believe them.

                  But, if enough "normal" people start having these thoughts, a government can lose its legitimacy in the blink of an eye.

                  And the number of bumper stickers I see around here is more than just a few wackos. And I don't live in BFE. I live in suburban Houston.

        3. Nobody is claiming the Supreme Court aren't the final arbiter of legal constitutionality. But we can still insist that the Court interpreted the Constitution wrong and should reverse their decision, like people did when they challenged slavery and segregation rulings and the Court overturned bad precedents.

          The verdict in Kelo is also blatantly unconstitutional. The fact that the ruling stands doesn't mean we have to start accepting its constitutionality.

        4. Actually that means that the Nazgul at the time got it wrong and it actually WASN'T CONSTITUTIONAL.

          That's like if I designed a building without a sprinkler system, even though code says I have to have one, and then the inspector gives my building a green tag and an occupancy permit anyways. It still doesn't meet code, no matter what some moron from the city says.

    3. Perhaps the same deity Mr. Libertarian wants poking around women's reproductive organs?

      A woman's reproductive organs are now squarely my business.

      1. All dem extra babies cost gubmint money.

        Time to get with the abortin'.

          1. How can we penalize having babies when babies are supposed to pay all our bills?

            If only there were some way to have babies without the use of the healthcare infrastructure...

        1. Or, alternatively, we need more babies to achieve some stated government goal, so women who fail to conceive and deliver a child within X years will be "taxed" $Y.


          1. Technically this is already the case with the child tax deduction.

            1. Yes, but it's so ridiculously low in comparison to the actual costs of feeding and clothing children that it basically IS a child tax.

    4. Fuck off, Tony. When you nancy-boys thought that the Court was going to eviscerate Obamacare, you couldn't wail and bitch loudly enough about how disrespectful of the Constitution those awful reich-wingers on the Court were.

  9. "Just because a couple people on the Supreme Court declare something to be 'constitutional' does not make it so. The whole thing remains unconstitutional."


    1. Really. USSC decisions are only interpretations which can be wrong due to the human nature of justices.

      However, politicians also make their own interpretations and if they like what the court decides, watch out!

  10. Enough with the bad news. When is Holder getting bitchslapped?

    1. Sorry, the president is going to issue a tax on anyone who threatens Holder in any way. A flesh tax.

      1. A flesh tax.

        Interesting point. Has the SC ever specified that tax has to be money?

        1. What if it did? It could just twist that into a new meaning and further deprive us of our liberties.

          What's pathetic is all the lefties celebrating. This new power can and will be used against them in ways that will disturb them deeply. And that might even happen soon.

          1. As I pointed out to my celebrating e-friends: Remember when celebrating the expanding power of the State, that soon enough it will call your enemy master.

        2. Soon, there will be a head tax on Republicans. Literally, please send in your head. When they remember there's such a thing as libertarians, they, too, will have to pay the head tax. It's a voluntary tax. Perfectly legal.

        3. Jerrold Nadler and Mike Moore just declared bankruptcy.

    2. I'd talk about what we should do with him, but nobody wants to visit that dark part of my mind. Even though it's a very active par to my mind today.

    3. Late this afternoon. They had a vote to have a vote and 20 Dems voted to bitch slap him. So anyone who objects to this bipartisan action is just a hack.

  11. "Just because a couple people on the Supreme Court declare something to be 'constitutional' does not make it so. The whole thing remains unconstitutional."

    That's for damned sure. End of the day, government usurpation of power has one final check, if the government itself won't follow the rules.

    1. Yesterday I made a point of correcting another poster who kept saying that "Even if Obamacare is constituional, it still sucks" by reminding him that it already is unconstitutional, so he should say "Even if Obamacare is ruled constitutional, it still sucks"

      1. The Constitution is a compact. It only remains valid--and the government only remains valid--if its provisions are adhered to. There is nothing in the Constitution giving any branch or all the branches together the power to rewrite the Constitution except through the amendment process.

        If the Constitution said that it was illegal for the government to kill a citizen, and the Court said, well, that doesn't include killing with lasers, would the Court be right? Of course not.

        Neither the courts, the Congress, nor the president are the final arbiters of what's constitutional and what isn't. We are.

        1. We are.

          I would argue this is wrong. What is Constitutional is what the Constitution says is ok. We can get away with calling something else Constitutional, but we would still all be wrong. Perception doesn't make reality.

          1. I just meant that, at the end of the day, the Constitution has to be viewed as legitimate by most of us, or it fails. And if it fails, the whole system is at risk.

            1. Ah, in a purely practical sense, then yes.

            2. I think we're almost there. Is it Wolfe time yet?

              1. I have an ancestor who was in the Georgia legislature and voted to secede. I think I'm going to ask him what that was like via Ouija Board tonight.

                1. I'd really like that option.

                  Now I need SpaceX to succeed even more than before.

  12. Fuck.

    I tried to read the whole thing, and I almost did, except that I started to have debilitating nausea while reading Ginsburg's drivel and I couldn't finish that part.

    And Roberts, well, he wrote a lot of beautiful words that I liked. And then he just slid down the treasure-trail of big government dadday and went to work.

    1. Big Daddy was serviced, not dadday, whatever the fuck that is.

      1. I think it's an accent.

        1. Sounds like Forest Gump Southern Dialect to me.

          1. Maybe some kind of cajun thing.

  13. Time to unionize doctors: http://www.breitbart.com/Breit.....ze-Doctors

    1. We can't let GM leave!

  14. I hadn't realized that modern jurisprudence considers the "tax and spend power" to be completely severed from the concept of enumerated powers, but it shouldn't have surprised me.

    So who cares if they had nice words to say about limiting the Commerce Clause?

    All the power they need is built into the tax=penalty wonder-world that Roberts created.

    1. A so-called progressive would tell you almost any power is enumerated under the "general welfare clause." Too bad the adopters left that weasley wording in place. I doubt "general welfare" meant the same thing in 1787 that it does today.

      1. You're right. The Constitution is full of suck, but it's a hell of a lot better than what we have now.

        1. But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

  15. Is anyone from San Diego? I'm going there next week and I'm looking for eating or drinking recommendations.

    1. Eat and drink 'till you puke. Repeat as desired.

      1. That's the plan.

  16. Just pass a law that says Fuck You That's why. At least we'll respect them more.

    1. They really should just drop the pretense and admit that they're making shit up as they go along.

  17. So... I think this presents a great opportunity for the seasteading movement to create an offshore medical tourism industry. No pirates near U.S. coastal waters, and blowing up cancer patients isn't the best PR move for the Navy. Because it's fairly close, the times and prices can reasonable. Plus, no FDA or AMA bullshit to deal with.

  18. If I were president I would just insist on increasing everyone's tax burden by $400 trillion dollars but you are tax exempt if you agree to leave your neighbors the fuck alone. Anyone who fails to do that, under today's ruling, would of course be subject to paying that tax.

  19. I'm even more convinced now that in the long term, it's better for Republicans--and maybe even libertarians--if Obama is reelected. Two reasons:

    (1) I think the economy will remain shitty for the large part of the next four years no matter who is president, and whoever happens to be president during that time will be blamed, however unfairly. If Romney is president, however, it's far more likely that the bad economy will be blamed on deregulation and free markets gone wild, which would be a blow to libertarians.

    (2) The worst parts of the ACA go into effect on Jan. 1, 2014, and that's when the shit will hit the fan. People will wait until they become ill to purchase insurance and pay artificially low rates, causing premiums to skyrocket for everyone else. Insured people will make more doctor's visits to justify the increased cost of their insurance. Medical service providers will be unprepared to handle the flood of new patients, resulting in long wait times. Republicans could benefit hugely from this mess in the 2014 midterm elections, but if Romney is elected and he touches Obamacare in the slightest way, then suddenly all these failures can be blamed on evil Republicans who are determined to make sure a good law fails.

    I'm not sure if libertarians benefit from an Obama victory on the second count, but at least for the first reason, I'm kinda hoping that Obama wins. *runs away*

    1. I agree with you, in the sense that Obama only has 4 more years whereas if Romney wins it would probably be 8 until a legitimate contender like Gary Johnson or Rand Paul can step up. But I also think the House stays with Republicans and the Senate becomes much more even, maybe 48-52, 49-51, or even 50-50. And if that were the case with Romney in charge we would be in the same shitstorm as 10 years ago and 4 years ago.

      (Full disclosure: I did place a $25 bet on Obama to win when it looked like a sure thing... now I may be writing that off)

    2. You better run, boy!

      You might have a point, but it's still shitty.

    3. I am not sure about number 1. Don't under estimate the resiliance of the American economy. It should have recovered by now. It was only the determined and astounding incompetence of the Obama administration that it hasn't. There is a lot of pent up demand sitting there. Romney just has to stop affirmatively waging war on the economy and it will turn around. And once it turns around it build on itself just like recession build on themselves the other way.

      As far as the second one, you are right. People will go nuts. And Obama with no worries of being re-elected will go full retard and no doubt push too far. A second Obama term would be a disaster for the country and the Democrats. I think Democrats like Clinton and Ed Rendell realize that and are quietly hoping he loses for that reason.

      The problem is he might do so much damage that it will be impossible to fix.

      1. Sure, a 100% tax on the rich. Defined as people not on welfare.

        1. Defined as people not on welfare.

          That's now something like only 25% of Americans who aren't receiving some sort of government assistance.

          1. Good, so we can't vote anyone out of office when the tax comes. Perfect.

        2. Defined as people not on welfare and not donating to the Democrats.

      2. And Obama with no worries of being re-elected will go full retard


  20. Sic semper tyrannis.

  21. Does this make a poll-tax legal now?

    1. Shit, it basically IS a poll tax.

  22. On state sovereignty, I loved this quote from Roberts in the opinion:

    "The States are separate and independent sovereigns. Sometimes they have to act like it."

    1. If only the Feds would actually allow it.

      For example, Medical MJ raids.

  23. I'm guessing Roberts' wife threatened to leave him if he ruled against the law.

  24. To quote Rick Ungar at Forbes Magazine,

    "In July of 1798, Congress passed ? and President John Adams signed - "An Act for the Relief of Sick and Disabled Seamen." The law authorized the creation of a government-operated marine hospital service and mandated that all privately employed seamen be required to purchase health care insurance. [This program was later extended to lake and riverboat sailors, as well. ...]

    Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members WERE the drafters of the Constitution."

    (The relevant article is available online at:
    http://www.forbes.com/sites/ri.....e-in-1798/ ) and commented upon at http://voices.washingtonpost.c.....gover.html

    So much for claims that an individual mandate requiring the purchase of health insurance is unconstitutional.

Please to post comments

Comments are closed.