Thank You, John Roberts, You Right-Wing Bastard


Wait, wait. There's the moon! Ow-o-o-o-o-o!

So maybe John Roberts isn't going to get much love for saving ObamaCare's ass after all. Writing for New York magazine, Jonathan Chait shows us a worldview in which Roberts's legal contortions to save what Adam Serwer at Mother Jones calls "[t]he largest expansion of the American welfare state since the Great Society" is actually a dastardly right-wing plot to reinterpret the Constitution in a really, really right-wing-y way according to a gradual, sneaky strategy.

Says Chait:

The fearful part is that five justices ruled that the Affordable Care Act cannot be upheld under the Commerce Clause. This is a bizarre and implausibly narrow reading — if Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce. By endorsing this precedent, Roberts opens the door for future courts to revive the Constitution in Exile.

But Roberts will do it by a process of slow constriction, carefully building case upon case to produce a result that over time will, if he prevails, rewrite the shape of American law. What he is not willing to do is to impose his vision in one sudden and transparently partisan attack. Roberts is playing a long game.

You gotta give it to Chait. No slacker he, the man doesn't take a break from seeing monsters under the bed to savor the moment.

Update: Slate's Tom Scocca endorses the we-got-played conspiracy view:

Yes, Roberts voted to uphold the individual mandate, joining the court's liberal wing to give President Obama a 5-4 victory on his signature piece of legislation. Right-wing partisans are crying treason; left-wing partisans saw their predictions of a bitter, party-line defeat undone.

But the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress' regulatory powers under the Commerce Clause.

NEXT: Poor Time Picked the Wrong SCOTUS Obamacare Decider

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  1. If only he were right, it would be a great victory. Like sacrificing a queen to win the match.

  2. And as an added bonus Roberts also just shot a torpedo into Obama’s re-election chances. I have no doubt Roberts is playing the long game here. I just think he is fooling himself.

    1. John, how do you figure this kills O? Since many of the neg impacts won’t really kick in until after the election. He can campaign on bringing ‘healthcare to all’ and people will believe.

      1. It might not kick in, but it is now, officially, a tax increase. A regressive, per-capita tax increase. Expect “tax increase” to become prevalent in GOP political ads.

      2. None of the regs were in effect in the 2010 midterms and that resulted in the biggest Republican win since the Civil War. This bill is even less popular now. And on top of that, the Supreme Court just ruled it a tax increase. This is a dead political loser for Obama.

        1. Man, I hope you are right. I loath O, but I don’t have the faith that he will lose like you do.

          1. that, and the left doesn’t have a bogeyman to rally around. They were ready to run against the court. now they’ll have to re-purpose those stockpiled Robert’s effigies

            and the economy still sucks.

            1. But what does Romney run against? That he is against it; when he signed a similar law (yes, I know he signed at the state and has said he is against it at the fed level). I don’t see that resonating with the independents. Maybe it brings out more of the R base.

              1. Why would that not resonate with independents? What do independents care if Romney loves it at the state level? They are electing him to federal office.

                1. Romney needs to man up and say the Romneycare was a mistake, has turned out badly and that he, unlike Obama, learns from his mistakes.

                2. I still think they will look at this as free stuff, without thinking about the cost (look at nobody’s 1:28 comment). Will they make the distinction between state vs. fed level? I don’t think so. IF Romney can get the message out that this is a tax AND distance himself from the fact that he signed legislation that is very similar, he might have a chance. Otherwise I don’t think so. I HOPE HOPE HOPE I am wrong and O goes down massively. But I ain’t counting on it.

              2. i think the for the vast majority they are concerned about jobs and the economy. health care is a concern, but not a top one.

                1. It wasn’t before but it is now. OBama has to explain why he lied and raised taxes in the worst economy in 70 years.

        2. This is a dead political loser for Obama

          and you think the wonderful consequence is… we get to elect the person who actually *invented* Obamacare?(Romney)

          I don’t see what upside you take from this at all.

          1. I don’t care if Romney invented it and screwed Nancy Pelosi in celebration. The fact is Romney if elected would have no choice but to sign a repeal. Sure Romney is craven and has no principles. But there is nothing wrong with doing the right thing for the wrong reason.

            1. Yeah, but there’s equal likelihood that Romney’s current promise to ‘if elected, repeal Obamacare’ has about as much sincerity and will behind it as Obama’s promise ‘if elected, to close Guantanamo!’

              Regardless of what happens from here, all scenarios generally point to a shittier and more expensive system that already is collapsing under the weight of its own suck-itude.

        3. Here are some straws. Grasp away.

          1. Straw-hoarder.

      3. The ruling is like a yellow marker highlighting for the young, college folk who gave Obama his victory that he is not the Free Shit Fairy they voted for in ’08.

        Sure, most will rationalize it, but many will find the cognitive dissonance too demoralizing to show up on election day.

        1. I don’t know. Judging by my facebook, everyone around my age (mid 20s to mid 30s) thinks that we’ve just caught up to the rest of the West now that we have free health care, and Republicans are really bad because they want to take health care away.

          I don’t go on facebook too much.

          1. it is staggering that the age group you describe actually sees health care as now being “free.”

            1. I actually am eagerly awaiting Feb-April next year when the same people are bitching about the IRS withholding their refund.

            2. I talk with a lot of Europeans who constantly blab about “free health care”. When I respond that nothing is free they just get confused.

          2. I expect so, but even a mere ten percent drop off of support for Obama amongst his youth supporters would be enough to sink him if concentrated in the right swing states like my own of NC and Ohio.

            The sad psychelogy behind it is that is so damn easy to buy into an inferiority complex, esp. if all you have ever known in your educational pursuits is to have been beneath the wheel of the stultifying public sector bureaucracy. It is so much easier to believe in your own inferiority and that of your nation as a ‘realistic’ premise than to challenge it. All they need to believe that Western Europe is superior in this area and every area is to be told so just once and it sticks with them for life.

            It has always broken my heart to hear that crap coming from the uninformed.

          3. My facebook suggests a pretty similar trend.

            1. Ditto.

  3. Dumb fucking republicans that side with socialists always get attacked by those socialists in short order.

    The only surprise is that the supply of dumb fucking republican semi-socialists is endless.

    1. Someone made the point on Althouse that taxes can’t be filibustered in the Senate. I have no idea if that is true. But if it is, the thinking is that Roberts did the following

      1) commerce clause was thereby quietly castrated 2) Romney’s base is much more energized 3) With a Romney/Senate win (or even close on the latter) and a “mandate is a tax” ruling, Roberts got repeal anyway because taxes can’t be filibustered and the bill is unpopular.

      I am willing to bet that was his thinking. If it is true that taxes can’t be filibustered then that creates an interesting problem for Democrats.

      1. Just pulled this off of Human Events, some talking points about Roberts Decision:

        ‘Fifth, the decision totally removes a growing left-wing talking point that suddenly they must vote for Obama because of judges. The Supreme Court as a November issue for the left is gone. For the right? That sound you hear is the marching of libertarians into Camp Romney, with noses held, knowing that the libertarian and conservative coalitions must unite to defeat Obama and Obamacare.’

        Do you think the second half, about Libertarians holding their noses, is true?

        1. Can’t answer for any but myself, but I will not vote for Romney.

        2. For Romney? Doubtful. But I think I can hold my nose enough to elect a Republican to Congress if they take a strong stance against ObamaCare. I can always vote them out once they repeal it, or if they fail to do so.

        3. Some will. But not many. I’m sure as shit not. Romney has to :

          1) admit that RomneyCare was a horrible idea, and that he fucked up by signing it.


          2) Have Rand Paul as his VP

          for him to get my vote. And (1) isn’t enough all by itself. It’s a prerequisite. Since neither is going to happen I haven’t bothered figuring out what needs to come with it.

        4. I’m not in a swing state. So I’ll still be voting for Gary Johnson.

          1. Iowa is swinging in the wind. Romney is planning to open 19 “victory” offices in the state.

            I’m going have to unplug my telephone until after the election.

          2. Same here

          3. I’m in a swing state and I’ll still vote for Gary Johnson, because a vote is an expression of who you want to be President, not who you don’t want to be President.

        5. Do you think the second half, about Libertarians holding their noses, is true?

          I’m sure some deluded libertarians, who have mistakenly concluded that Romney will reverse Obama’s bad policies, might waste their votes on the guy.

          Speaking for myself, I won’t.

        6. Considering Roberts is a Bush appointee and no matter what his reasoning it was fucking stupid to set that kind of precedence, I’m going to say it’s not going to win too many Libertarian’s over to Romney.
          Certainly not me.

        7. I’m with Ted S.

        8. I won’t vote for Romney. I’ve seen this movie before and know how it ends:
          “Yeah we remember what we promised you. Now fuck off. Go back to your bong you stupid liberdopian.”

        9. It might pursuade a few self-described “libertarian leaning” independents who are really just warmed over Republicans to hold their noses and vote for Romney, but I don’t think that describes too many people here.

        10. Why would I vote for Romney? So he can appoint another like Roberts?

          1. No, so that Obama doesn’t appoint another like Kagan.

      2. budget reconciliation bills can’t be filibustered. that’s how they got the damn thing passed in the first place.

      3. Round and round, the reconciliation wheel turns.

  4. Roberts may be thinking of John Marshall in *Marbury v. Madison* which, strictly speaking, was a victory for the Jefferson administration because Marbury lost and Secy of state Madison won. But they won by having the Supreme Court affirm the power of judicial review, which wasn’t exactly a defeat for Jefferson* but helped bolster the Court’s authority.

    *Jefferson wasn’t against judicial review; in fact, he thought the Supreme Court wasn’t striking down *enough* Acts of Congress.

    1. But I knew Chief Justice Marshall, Chief Justice Marshall was a friend of mine, and you, CJ Roberts, are no John Marshall.

  5. If Obamacare is a steaming turd, then whose plate is it now on? Sort of like when Dad made you smoke the whole box of cigars when he caught you filching one.

  6. One can only hope this is the case. I would have to believe that Roberts is a bit brighter than the liberal “intelligentsia”

    Hey Chiat, Klein! Look a squirrel! And it has a copy of the Constitution in it’s little squirrel pouch! Get it!

  7. When all you have is a hammer, everything looks like a nail.

  8. The fearful part is that five justices ruled that the Affordable Care Act cannot be upheld under the Commerce Clause. This is a bizarre and implausibly narrow reading ? if Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce.

    Thank you for providing the reason for the first sentence in the second sentence, Jonathan.

    1. My physician is local, my insurer is in the next town over. How the hell is this “interstate”?

    2. how is any of it interstate? Ever try to get health coverage from some place other than the small cabal so designated by your state legislature?

      1. It’s also ignoring the part where they’re regulating activity that doesn’t exist.

    3. How did he come to the conclusion that not allowing congress to force people to buy health insurance is the the same as not allowing congress to regulate the health care market at all?

  9. The long game, huh?

  10. Jonathan Chait is right on this one, folks.

    1. So what happens when Congress simply abuses the shit out of their unlimited taxing power?

      1. Tax revolt? Greek downward spiral?

      2. The short answer is “they can’t”, because the tax has to look like a tax and not a penalty. If this “tax” had been 1 million dollars, Roberts would have gone the other way.

        Is that a line-drawing exercise? Yes. But what isn’t at that level?

  11. Chait’s physical image is always disconcerting. Looks nothing like the obedient little cub in the yellow neckerchief and navy blue cap his writing always strongly suggests.

      1. Oh, THAT youth brigade!

        1. Well, if you want a Godwin, “You know who else believed in national health care?”

          1. No need to Godwin, a soviet youth brigade is bad enough.

  12. So did somebody get to Roberts? Kidnap his family? Was he blinking for help this morning?

    How else could he have flushed his reputation down the toilet with such a nonsensical convoluted argument?

    1. He had a failure of moral courage. When it came down to it he didn’t have the guts to offend liberals this much and this directly. So he punted.

      1. Sally Fields at the Oscars: “You like me; you really really like me”

        Was Roberts voice trembling when he read is opinion?

  13. Can someone help me out from a constitutional perspective? How is this even legit as a tax? The 16th amendment permits taxation on income, but Article I section 9 forbids capitation taxes, which this strikes me as being. Am I missing something?

    1. When people talk of the 1% vs. the 99%, they really mean, whether they know it or not, the 1%, like you, who can read and understand the Constitution without using Cliff’s Notes, and the 99%, who think the Constitution begins, “When in the Course of human events…”

    2. The conservative dissenters flagged this one. They said it was a legitimate issue, but didn’t commit on whether it was actually a direct tax or not. The definition is somewhat vague. The term at least includes capitations taxes (a tax on just being a person) and land taxes. But not carriage taxes.

      1. (Direct taxes are legal, but have to be apportioned among the states based on population, which this tax isn’t)

      2. Roberts was very sloppy in the secondary consideration of, okay, if this is a tax, and clearly is, how does it fit into the constitution prescription of taxation powers. Even the liberal circuit decisions made clear that this was a problem. I haven’t read all of his decision yet, but so far I have found nothing that indicates that he did anything but ignore it.

        1. nto the constitutional prescription of taxation powers.

          Squirrels, could you get rid of all those shitty scripts you have loading up that slows my shit down? I can see that it is you in my dev console. ‘K? Thnx.

    3. That was a typo. That article refers to decapitation taxes, which this is not, sort of.

    4. That was my thought also.

      But Roberts “reasoning” seems to be that it is a form of income tax because it is enforced by the IRS via income tax returns and that it therefor only applies to people that must file and income tax return.

    5. The Nazgul have spoken mortal! You must think you are some kind of Randian superhero to read stuff written in Olde English (it was written like over 200 years ago, you know) and come to your own understanding. You should probably just go ahead and move to Somalia.

    6. This was from a statement from the Tax Foundation:

      “The Court finally states that it is not a direct tax–if it were, it would be unconstitutional for not being apportioned by population– because not everyone is subject to it. Only those who refuse to buy insurance are subject to it, so it is an excise tax.”

      1. Only those who refuse to buy insurance are subject to it, so it is an excise tax.

        An excise tax is a tax on a given commodity that is paid by the purchaser at the time of purchase, so this can’t be an excise tax either. It’s a penalty, period. I don’t care how it’s collected, it’s a penalty for failing to purchase health insurance, and it’s not a legitimate exercise of congress’ taxing or interstate commerce clause powers.

  14. This “long game” nonsense is just absurd.

    If I was a SCOTUS litigant, I might adopt a strategy of daisy-chaining cases to slowly build precedents towards my true, hidden end.

    But that’s because I would be assuming that this would be my best strategy for dealing with a cowardly SCOTUS.

    If I’m actually the Chief Justice, I count noses and look for the first opportunity to hit a home run. Why? Because nobody can stop me, and because I could get hit by a bus tomorrow.

    It makes NO SENSE that Roberts would adopt the kind of evolutionary strategy that lack of a robe and a gavel forces on, say, the guys at CATO.

    1. That is what I would do too fluffy. But you and I are not Roberts. He is a politician. HE wants to be liked. He doesn’t want people mad at him. I am not saying it is a smart game. But I honestly think that is what he is doing. He thought that killing Obamacare would be too much for the country to take. Cause too many hard feelings and hurt the court. So he rolled and did his best to lay the groundwork for future decisions.

      The thing non one is talking about the medicare expansion. If I am reading it right the Court said the Congress can’t use the spending power to coerce states anymore. That could have some pretty far reaching effects.

      1. Wait, it said that in general? Shit, that’s fucking huge.

        1. It seems to say that. Obamacare said if you didn’t sign up for exchanges you got your medicaid cut. The court said no. That Congress can’t punish states for refusing to participate in the program.

          1. Wishful parsing. Even if it were true, using your wording, this would not preclude the feds from withholding goodies — regardless whether you agree, selectively not handing out elective benefits is to be seen as being fundamentally different than selectively handing down punishments. To see why this must be the case, take a look at the proportion of federal to state taxes collected; there is no room for substantial change to occur here, given that the flow of money is a prime mechanism of power in a federal system. Which, by the way, is what the previously-sovereign nations of Europe will be learning shortly.

      2. No. They can’t re-write the funding rules punitively. They can deny funding to any state that doesn’t institute the new program, but they can’t strip all Medicare away from the states (who are still providing Medicare services, just under the old rules). It is a pretty limited decision. You can’t require the states provide Medicare and not fund it. You can offer different levels of funding for different levels of implementation.

  15. I guess, to look on the bright side, this ruling allowed (if only for the briefest period of time) a moment of unity shared among all people in the nation — liberal, conservative, progressive, libertarian, you name it. We could all stand together, hand in hand, in the sincere belief that John Roberts is a fucking tool.

  16. 4 votes to uphold on commerce clause grounds.
    4 votes to overturn.
    1 vote to uphold as a tax.

    How does that make it a tax?

    1. Because the four liberals had to join Roberts or lose.

      1. This stuff makes WWE look legit.

        1. + my soul.

  17. And the Left immediately called Clarence Thomas a Nigger over this.


    1. God damn black people are racist.

  18. “Always look on the bright side of life.” – Eric Idle

    ’bout the only thing keeping me sane today is that song, in context, rattling around my head.

    1. I commented earlier that I’m probably old enough that I’ll die before this causes the total collapse of the US. Always looking on the bright side of life.

  19. Yes, that bizarre, fringe idea that Congress could regulate commerce ” with foreign Nations, and among the several States, and with the Indian tribes” but not commerce between entities which are not any of those three things. RADICAL. FRINGE.

    Understand, the individual State were NOT forbidden from regulating commerce between their citizens. The idea that the U.S. government can regulate ANYTHING by way of the Commerce clause makes no sense, but who cares as long as the desired policy outcome is reached.

  20. So a decision that appears to any rational observer to be contrived specifically in order to avoid the commerce clause and therefore any contemplation of commerce clasue precedent (Wickard, Raich, etc.) is somehow a devious right wing plot to restrain the government using the commerce clause?

    I gotta give it up to Chait and Scocca, they’re far better mental gymnasts than me. Bravo guys, bravo.

    1. Well, the Court did explicitly state that there is some limit to the Federal government’s power provided by Commerce Clause.

  21. circumvented the constitution,roberts is a treasonous bastard. and obama is stayin by hook or crook

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