In Defense of John Roberts and the ObamaCare Verdict

Advocates of limited government should count all the ways in which our side won.

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From the sound of conservatives, Thursday was a day that will live in infamy. The Supreme Court decision upholding Obamacare unleashed a storm of outrage from critics who made it sound like a combination of Pearl Harbor, the Great Depression and the Black Plague.

"We are now becoming Venezuela and on the way to becoming Castro's Cuba," said radio talk show host Michael Savage. My favorite came from a Tea Party organization: "The hideous abomination from hell must be eradicated."

Well, that's one way to look at it. Another way is for advocates of limited power, individual freedom, and constitutional government to count all the ways in which our side won.

When Congress approved the requirement that everyone have health insurance, it took for granted it could legislate at whim, courtesy of the commerce clause of the Constitution. That provision has consistently been given a broad interpretation—allowing the federal government, for example, to force a farmer to destroy wheat he grew not to sell (commerce) but merely to eat.

When Georgetown University law professor Randy Barnett challenged the mandate, legal scholars laughed out loud. He insisted the clause allowed regulation of economic activity, but not of economic inactivity—such as declining to buy health insurance. This step, he said, was literally unprecedented.

One legal scholar predicted Barnett would lose 8-1. The White House said the argument "shouldn't be given too much credence in the press." Asked about the constitutionality of the mandate, then-House Speaker Nancy Pelosi replied, "Are you serious? Are you serious?"

Yet, lo and behold, the argument prevailed with a majority of justices. "The framers gave Congress the power to regulate commerce, not to compel it," explained Roberts. "The commerce clause is not a general license to regulate an individual from cradle to grave."

Yes, the court did narrowly uphold Obamacare as a permissible exercise of Congress' taxing power. But if it was going to uphold it, this was the least dangerous method. Allowing it under the commerce clause would have amounted to an open-ended grant of power.

What tangible difference will this limitation make in future cases? It's not clear yet. But Yale law professor Akhil Reed Amar, who supports the program, glumly told The New York Times, "Federal power has more restrictions on it. Going forward, there may even be laws on the books that have to be re-examined."

While it was upholding the mandate, the court was striking down an equally important part of the law: the requirement that states greatly expand Medicaid coverage, at a cost of about $1 trillion between 2014 and 2022. The administration sought to force states to go along by threatening to take away all their Medicaid funds—not just those provided for the expansion. But Roberts and Co. said no.

Does it matter? You bet. It's the first time the court has ever said Washington went too far in the conditions it places on money sent to state governments. The ruling will give states more latitude to make their own decisions in all sorts of areas.

The case also registered a victory for the notion that judges should apply the Constitution in an impartial way rather than simply impose their policy preferences. George Washington University law professor Orin Kerr, writing on the conservative-libertarian blog The Volokh Conspiracy, said the overall decision was "a largely conservative opinion that just happens to get to a liberal result."

Equally significant is that it took a worse health care option off the table. The irony of the challenge is that if Obamacare had been struck down, supporters of universal health coverage would have been left with no good option but a "single-payer" system, also known as "Medicare for all"—which is undoubtedly constitutional.

Whatever the flaws of Obamacare, it at least builds on the existing system of private insurance. Vermont's self-proclaimed socialist senator, Bernie Sanders, used the court's decision to renew his call for a single-payer system. But for him, the verdict was the worst thing that could have happened.

For anyone even slightly open to evidence, letting Obamacare take effect will provide an illuminating experiment in how to afford the miracles of the American medical system to more people, including many in dire need. It may be a failure, or it may be a success. But it will not be uninformative.

Steve Chapman blogs daily at newsblogs.chicagotribune.com/steve_chapman.

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  1. That’s freaking Pollyanna if I’ve ever seen it. Keep your fingers in your ears and hang your hopes on that commerce clause crap. The result is all that matters. The hows and whys and dissents are completely irrelevant. Future decisions won’t give a rat’s ass about this ‘restriction’ of the commerce clause, and if you’re counting on that to overturn a future law then you suffer from terminal optimism.

    The only good thing about the decision is that the ‘conservative’ justices won’t even bother with much opposition in future cases, so at least future ridiculously unconstitutional decisions will come at a quicker pace.

    1. Agreed, the government shouldn’t have an unlimited ability to tax anyway.

      1. Constitutionally (if that mattered) it doesn’t. The taxing power is restricted by the limiting clause at the end “to pay the Debts and provide for the common Defence and general Welfare “.

        A true constitutional scholar would understand that as was the practice of the day, such clauses limited a given power.

        Really though, all these constitutional debates are amusing in that the USC was thrown out a long time ago.

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        2. Not that I’m a fan of taxation… but, unfortunately “general welfare” is open to significant interpretation.

    2. Yes, delusional.

      It was a horrible decision.

  2. Wow, OK man that makes a lot of sense dude.

    http://www.Most-Privacy.tk

    1. Can’t you just hear the Tokelauan through the text? Melodic. And close to sea level.

  3. dang buddy, you must be one of those half full guys, this is the worst interpretation I have read yet. first why do you think they reigned in the commerce clause, declaring inactivity one step beyond is like saying one more inch and your off the cliff. according to you, closing the barn door after the fire keeps out nothing.

    what about the tax roberts made up. sounds very liberal act to me and opened another whole area of taxes to the people.

    how about what we lost. the SC is supposed to protect the people not punish them it is not the purpose of the court to implement legislation if at all posiable. their job is to ensure all laws as written adhere to the constitution.

    1. This sounds like Steve might be trying to rationalize his Obama vote in’08.

      1. And in breaking news: Why the atom bomb was a blessing in disguise for the citizens of Hiroshima.

  4. I understand why a lot of people on the right are so pissed off, but goddam they need to open their eyes and see what a gift this was. Roberts basically neutered the statists and hung Obamacare around the Dems necks as an election issue in one fell swoop. Obamacare is/was a political issue and Roberts reognized that the best way to deal with it is politically… and he set the GOP up perfectly to do just that in November.

    And for the GOP jackoffs complaining that “the court didn’t do it’s job” or “it’s not the court’s job to tell politicians to solve political problems”… Why don’t you just shut the fuck up and don’t go starting illegal wars and lying to the American people about how pure and innocent you are and then maybe they won’t vote you out and hand the keys to an even bigger set of clowns next time.

    1. Ok well I’m Libertarian so my credibility is sky high.

      Roberts’ rationale still sounds questionable. This is annoying.

    2. Their war boner for Iran is growing and Romney is stroking it.

      1. And your Team voted to go to Iraq.

    3. How is rubber-stamping IRS-enforced penalties on arbitrary behavior (or abstention from behavior) “neuter[ing] the statists”?

      1. Going into the legal arguments, no one was denying that Congress didn’t already have that power. The debate was over whether Obamacare could be considered as such since the Dems knew that labeling it as such was politically unpalatable and bent over backwards trying to deny it.

        Roberts basically played both sides – he convinced the 4 lefties to stick Obama and the Dems with the “tax” label – a power that they already have, AND he sided with the 4 dissenters to say that it was otherwise impermissible under the commerce clause.

        1. Which was stupid. Because the commerce clause finding will not be binding on lower courts, and the tax finding just opens up new avenues of attack on our liberties. I give you government’s favorite new tool of coercion: The Penaltax!

          1. How do you figure the commerce clause decision isn’t binding? Five justices ruling on a question presented… It’s not dicta, it’s not a plurality.. you know something I don’t?

        2. Oh, okay. So, Roberts gave congress the a green light to pass legislation using the word “penalty” and then find it constitutional as a “tax”. The average American doesn’t know who the vice president is, so I hope you’re not pinning your hopes on them being smart enough that they’re being hoodwinked.

          As far as sticking Dems with labels, who cares? You and I are still left to live writhing under the Obamacare monstrosity and its 20 or whatever new taxes and all that results from it. The Dems are exempt from it. That’s one expensive label Roberts bought us.

    4. Roberts basically neutered the statists and hung Obamacare around the Dems necks as an election issue in one fell swoop.

      I would gladly have a second Obama term if it meant the court striking down the individual mandate.

      1. And end up with another couple of statist hacks like Kagan and Breyer on the court?

        1. Because Roberts does such a good job interpreting the constitution? I’ll take the possibility of more libtard judges in exchange for killing Obamacare.

          1. Supreme Court justices appointed by Democrats are always liberal. At least Republicans get good ones some of the time.

    5. Because electing GOP officials is all that matters?!

      1. To me, defeating Obama repudiating TeamBlue! via the ballot box almost certainly is.

        1. So yes. But what will this bring the people of the US? O-care will not be overturned, it will merely be tweaked. And this ruling in no way limits congress. So, excepting the D/R bull, nothing changed.

        2. Sorry, this is not the place for you.

          1. Yet one more person who proves that if the only choice you are ever offered in life is between shit or cream of shit, eventually you will have a favorite. Let’s hope he gets tired of cream of shit someday.

            1. Unlikely. Once cream of shit is all you eat, it’s the only thing you know to like. I suggest this is the reason why I keep running into the “well, you’re not really all that free now anyway bekuzzz congress regulates A, B, C, D, E….etc. And you may have more choice if you look at it just right way (in a carnival mirror, I’m guessing), you actually have more choice with Obamacare.”

              More government cream of shit, please!

    6. I think I’ll add that the primacy of the political issue is such that a definitive Obamcare ruling would have just been another Roe v Wade. In the long run, a political victory over the Dems and their sleazy Obamacare behavior needs to be political, not judicial.

      1. What? RvW was a huge and lasting victory for freedom! THAT”S JUST WHAT WE WANTED.

    7. Roberts basically neutered the statists and hung Obamacare around the Dems necks as an election issue in one fell swoop.

      But since they have Obamney as their candidate, they can’t use it as an issue. So who cares if they could use it in theory? In practice they have neutered only themselves.

    8. You are delusional Team Red cheerleader.

      Our guy did it so it’s really a win at a deeper level you just don’t understand”

      Bull fucking shit.

      He didn’t restrict the commerce clause for shit because his musings in that are dicta.

      He did enable a whole new line of direct taxes that we can pretend are income or excise taxes even though they aren’t.

      He also emboldened the fucking socialists by showing that the constitution and laws mean dick because you can arbitrarily change the meaning of words to suit your needs to justify anything.

      It’s a horrible, horrible decision.

      1. Thank you for your frank and honest comment. I would also add that everyone needs to read the PPACA. I know it’s 2000 pages, but there is so much in there that no one is talking about. In fact, after visiting several blogs, I can honestly say that there is a huge misunderstanding of exactly how much this is going to cost. Please, read this bill – especially the sections regarding “Personal responsibility”.

        1. One of my favorites, which gets far too little mention, is the tax on medical devices. Yes, that will help lower the cost of health care! Ahahaha!

      2. It’s not dicta if it’s the holding… aka “fails under the commerce clause.” Other than this, there have been no meaningful limits on the clause in 80 years.

      3. Well said, Zaytsev! And strongly put, as it should be.

  5. Another way is for advocates of limited power, individual freedom, and constitutional government to count all the ways in which our side won.

    That number would be ZERO, Chapman.

    1. There’s two: it nerfed the Commerce Clause, and it established a limit on the power of the gov’t to coerce states by withholding highway funds. Those are small things compared to upholding the mandate, but lets see how it’ll play out.

      1. It didn’t nerf the commerce clause. It still applies to pretty much any action imaginable except for carrying guns in school zones. It refused to apply the interstate commerce clause to intrastate non-commerce, so at least that’s something… just not much.

        The limit on the power of the government to coerce states by withholding highway funds is pretty empty because highway funds aren’t as big a part of the budget as Medicaid and is thus distinguishable from this case.

        1. “It didn’t nerf the commerce clause.”

          It does establish a limit on it. I can be optimistic and at least hope the tides are turning in this country :|.

          “The limit on the power of the government to coerce states by withholding highway funds is pretty empty because highway funds aren’t as big a part of the budget as Medicaid and is thus distinguishable from this case.”

          Every source I read about the decision said this is the first time the Court ever struck down a coercive funding bill, so that sounds good to me.

          1. If the joy of this decision is that in two very distinct and uncommon situations Congress and the President didn’t get everything they wanted, that’s fine. It’s better than the alternative.

            I suspect that the number of times you’ll see this case cited by the SCOTUS as a reason to strike down a law in your lifetime could be counted on one hand with enough fingers left over to count the Washington Redskins’ all-time Super Bowl wins.

          2. Except that the rationale which describes a theoretical limitation on the commerce clause isn’t precedent, it is merely dicta, so gains no power of stare decisis. It is only as good as the current makeup of the court (assuming they would be consistent). Furthermore, it is a limitation at the most extreme form of the outrageously expansive view of the commerce clause. Not very useful at all.

          3. I can be optimistic and at least hope the tides are turning in this country

            I can buy that. The decision is what it is and we’re stuck with it, might as well at least try to have some positive attitude about it, I suppose.

            “My god! This is the freshest shit sandwich I’ve ever been fed!”

      2. If Roberts was not insane they could have struck down Obamacare and narrowed the use of the commerce clause and not come up with the president to tax people for what they did not do.

      3. How so? What I see is a an opinion concurring with a bunch of opinions that demanded a limitless Commerce Clause while agreeing with a dissents that claimed that such limits exist. I’m hardly convinced that that is sufficient to establish any actual precedent in favor of a limited Commerce Clause. Certainly, not anything that would be even remotely binding on future Courts.

    2. No, that number is 2. Two 9 mm bullets for freedom compared to the artillery shell for statism this was upholding ACA.

  6. Ugh.

    Not even a “good try”, Chapman. Jesus.

  7. Vermont’s self-proclaimed socialist senator, Bernie Sanders, used the court’s decision to renew his call for a single-payer system. But for him, the verdict was the worst thing that could have happened.

    Second worst, as a left-standing ObamaCare speeds us down a road that leads to single payer. As costs rise, there will be no one left who can pretend to afford to cover them but the federal government.

    The Commerce Clause took a minor hit, at best. If it comes before this court again, who’s to say a “wobbly” justice won’t make similar logical twists to allow its use further expansion by the people’s elected officials?

    1. Single payer won’t be on the table because insurance companies won’t have it.

      1. Single payer will happen. How? Read the bill (not people’s opinion of it). The initial “tax” is less than the actual cost of insurance both on business and individuals. Also keep in mind you have to buy a medical plan that meets the government’s approval. This coupled with the poor economy is going to push people to pay the tax and wait until they are sick to get insurance or to enroll in the state exchanges. This will result in an exploding cost increase in insurance. Insurance companies would have survived with a mandate, but not a “tax”.

    2. As costs rise, there will be no one left who can pretend to afford to cover them but the federal government.

      And how will our bankrupt fed government pay for that?

  8. It’s your weekly Monday morning golden shower from the Chicago Tribune birdbrain.

  9. The ruling will give states more latitude to make their own decisions in all sorts of areas.

    I don’t understand this logic. Why should states have more decision-making power on money given to them by the federal government? States should have decision-making power on revenue they raise themselves. Besides, I would rather have seen states actually dropping out of Medicaid because it has become too expensive, now they don’t need to.

  10. “Steve Chapman’s brain is on vacation this week…”

    1. ^^^ THIS ^^^

      We clearly need a red light warning sign at the top of all such posts, and anything written by house crypto-fascist Cathy Young.

      1. crypto-fascist Cathy Young.

        WTF?

  11. If we could could generate energy from all the hollow rationalizations since this Thursday, including this one, we wouldn’t need the sun.

    It was a poor decision, poorly reasoned, made worse by the fact that the fool apparently caved to pressure and changed his decision.

  12. Freedom is slavery.

  13. I keep hoping there’s a limit to the amount of stupid Reason will put up with from Steve Chapman.
    *sigh*

    1. Actually I keep hoping they get rid of everyone except Nick and the Reason hotties (Shikha, Emily, Mangoo, Lucy). And then hire a bunch more Reason hotties.

      I guess Two Chile can still contribute, but only if he plugs his book and talks about his wife in every article.

      1. Where is Lucy?

      2. Matt Welch can stay, but only if he promises not to talk about his French health care hard on.

  14. It is difficult for me to see why the individual mandate could not be deemed unconstitutional under both the commerce clause and the taxing power of congress…..and put the medicaid limitation in there too. It was a perfect opportunity to neuter the leviathan. Ball dropped again.

  15. Yes, the court did narrowly uphold Obamacare as a permissible exercise of Congress’ taxing power. But if it was going to uphold it, this was the least dangerous method. Allowing it under the commerce clause would have amounted to an open-ended grant of power.

    And “The People shall (insert activity/behavior) or pay a tax for failing to do so” is not an open-ended grant of power?

    “The framers gave Congress the power to regulate commerce, not to compel it,” explained Roberts.

    But the Framers apparently gave Congress the power to compel commerce via taxes, right? So which is it?

    1. That wasn’t the Framers, since the 16th came long after them.

    2. Auric’s right, it’s the 16th that really gave the feds unfettered taxing power. I have to say I agree with Roberts that this was a tax. You can call it a pig, but if it looks like a duck, quacks like a duck… It’s managed by the IRS, not DOJ, it’s intended to make some revenue while encouraging activity. This “active/inactive” distinction is silly. I’m 25 and have no kids, my friend is 25 and has a kid. She pays $1000 dollars less in taxes than I do because of it. The wording is different, but paying taxes is a zero sum game. childless people have been getting “fined” for decades for failing to act to have kids. Name your poison:tax credits for businesses who build factories in America is a fine on those who don’t. Tax credits that reward people for buying energystar windows is a fine on those who fail to. They could have worded the mandate as an across the board tax increase with exceptions for anyone with minimum insurance and no on would have noticed the difference in practice. Roberts was calling a duck a duck.

  16. I would rather they struck down the law and listen to the the progs debate whether this was a blessing in disguise for their side, than have the court uphold the law and listen to conservatives/libertarians debate whether there’s a silver lining.

    Still, we need to trot out the key conservative insight, “it could always be worse.” The Court could have rewritten the Constitution and its Commerce Clause to accomodate the statute, rather than rewrite the statute to accomodate the constitution.

    In addition to disagreeing with reading the statute as a tax, I also would point out that, if they *do* think it’s a tax, then they should have invoked the Tax Injunction Act and thrown the case out of court altogether, postponing further constitutional challenges until someone sued the IRS for a refund.

    1. And there’s the “direct tax” issue – direct taxes must be apportioned among the states based on population, which this tax isn’t. Yet there’s good reason to think it’s a direct tax – a question to which they gave too little consideration.

      Throwing out the case under the Tax Injunction Act would have been a good answer to “how do you keep a progressive in suspense?” Then they could have used a later case (when someone demanded a refund) to say “it’s an unconstitutional direct tax – back go the drawing board!”

    2. Not many people looked at this, apparently. They basically said that the Anti-Injunction Act is a nullity because they are willing to let anything be called not-a-tax for purposes of the AIA even if they find it really is a tax.

      The were two plausibly intellectually consistent things to do here if you are going to call the mandate a tax: 1) say the case isn’t ripe because of the AIA or 2) strike own the AIA as unconstitutional, then rule on the mandate. Roberts did neither.

      Roberts deserves all the scorn he gets, and more.

  17. Roberts deserves to be pelted with rotten eggs and garbage… but at least the statists are happy, eh?

    1. yeah, my leftists friends on FB are giddy.

      1. Some people love their chains.

      2. The rights are happy as well as they think this will give them the election. Everyone seems happy except for the people hoping for a total strike-down ensuring a little more freedom.

    2. What a distasteful thing to say. I don’t think you’re a lord at all. Good thing “Stolen Valor” got struck down…

  18. People keep comparing this to tax breaks people get for other things like, buying a house, or buying a special type of car the government wants us to buy (hybrids, alternative fuel vehciles, etc).

    Here’s the problem. Taxes weren’t raised on everyone, and then lowered for those who bought those things. In this case, the tax is basically added on top of your normal taxes.

    So are we all now going to see this extra tax on our returns that will only be deducted if we can prove we have insurance? Would this count beyond our standard deduction, or would it be part of it? So if it is included in the standard deduction, they raised taxes on everyone who don’t itemize. I’d really like to see how the IRS pricks do this.

    But really, I hope Congress has the chutzpah to repeal this obamanation.

    1. According to the bill, under the personal responsibility section, it will be $95 in 2014, $695 in 2015, and then in 2016 it will be $695 multiplied by the CLA (cost of living amount). I am still going through the bill to find the enforcement mechanisms. Heard there wern’t any, but there is so much misinformation about this bill (political in nature) that reading the bill is the only way to know. By the way there is a section that talks about allowing the IRS to limit your itemizations to that you cannot avoid paying your fair share. I got my copy via google.

      1. I am still going through the bill to find the enforcement mechanisms.

        See 5000A(g)(2), barring, among other things, the use of criminal prosecutions, liens, and levies.

        1. Thank you. Would you happen to know if (now that the “mandate” is a “tax”) if the IRS’s powers to collect taxes (that exist outside this law) will come into play? Or is this another potential lawsuit in the future?

      2. It’s not just the mandate. From what I understand there are 21 new taxes in the bill, mostly hidden from view, totaling to an estimated $400 billion a year. The IRS is gearing up for a major expansion, adding thousands of new agents. And of course we all know that it will all end up being much more expensive than publicized. These things combined are going to knock the shit out of the economy, probably right back into recession. That’s one reason I don’t doubt that Romney will try to repeal it if he wins. If Obamacare stays intact or even mostly intact it will doom his chances for a second term.

    2. People keep comparing this to tax breaks people get for other things like, buying a house, or buying a special type of car the government wants us to buy.

      Those people’s logic couldn’t pass the scrutiny of a child…

      Being told you can’t have dessert unless you eat your spinach is not the same thing as being told you’ll be spanked unless you eat your spinach.

      Every horse knows there’s a difference between a carrot and a whip.

      Getting a tax break for doing something–has never been, never is, and never will be–the same as being punished for not doing something.

      Being punished isn’t the same as being rewarded–and having a choice is not the same as not having a choice.

  19. Well, that’s one way to look at it. Another way is for advocates of limited power, individual freedom, and constitutional government to count all the ways in which our side won.

    For Chapman to top that? He would literally have to put lipstick on a pig and call it Miss America.

    1. or the first lady

      1. Barack Obama bends us over and laughs about it, and you want to go after the first lady–why?!

  20. So keeping Obamacare is a victory for proponents of limited government?

    I’ve heard of whistling past the graveyard, but this is humming a happy tune while shovelfulls of dirt are thumping on your coffin lid.

    1. +6′

  21. The inertia of this system is too great to stop. The nation is all ready insolvent. The euro is about to collapse. The unsinkable ship moves through the night. An iceberg on the horizon, full steam ahead captain.

  22. I’m not sorry. For you to say this is a win for limited govt is ridiculous. Maybe the Commerce Claus is now limited, but that’s irrelevant, because the ruling says that all Congress has to do is tax and it can regulate every activity or inactivity, regardless of authorization under the enumerated powers. By that logic, Congress shall pass no law respecting freedom of speech, but it can tax you for writing articles opposing the government or for not joining a particular political organization or movement.

  23. Chapman outdid himself with this one. Pure and utter ridiculousness and a complete lack of libertarian ideology in trying to spin this as anything other than a victory for increasing government totalitarianism.

    This shit is worse than accepting it via the commerce clause, because it gives the government unlimited taxing authority.

    1. Chapman outdid himself with this one. Pure and utter ridiculousness and a complete lack of libertarian ideology in trying to spin this as anything other than a victory for increasing government totalitarianism.

      It’s bad enough getting screwed–much worse for being told we’re supposed to like it.

      Here’s what your piece feels like, Chapman:

      http://www.youtube.com/watch?v=wm7D5VRfaTI

  24. Incisive comments up and down. My early morning java on steroids can’t remove the almost-comical fog from Mr. Chapman’s contortion. Almost as sophomoric as the decision itself.
    As an aside, I’d love to see Reason’s take on frequency of repeals. I mean, come on, when was the last tme that happened? Prohibition maybe? If this outrage is repealed I’ll buy a round for every commenter in the list. Will never, and I mean NEVER, happen.
    With Roberts’ practically admitting he caved, is that impeachable?
    Finally, and sadly, though I must take another swipe at Steve because while his intentions are good, he really can be ‘way out there’ quite a lot. Can you imagine the 3 Ms reading his article? (That’s Maher, Matthews, and Maddow.) Bill would call himself libertarian again; Chris’ foam would be a spraying shower of glee; Rachel’s smarmy pseudo-intellect would be arrested by a whooping, “Bwahhh haa, haa!… Yeah, guys, the right wing bastards were victorious today! Heh, it was a cabal led by Roberts to usher in the blackhearted conservatives, come November! Bwaahhh!!!!!”
    Yes, Steve, the court will have us in an-cap heaven in any moment now….
    And Romney, if elected, will be working, day after the inauguration, for repeal. Give me a break….

    1. I’m strictly here for the free beer offered FD. Even if I have to drive down from Canada.

      As for the ruling, yeah, you’re screwed.

  25. Please read the bill. I have begun the process (I started with the individual responsibility section). Do not rely on blogs, mainstream media, or anyone else (me included) regarding what is actually in this bill. It is law regardless of whether you see it as a good thing, bad thing, or some combination of both. There is some serious stuff that we all need to focus on before it hits us over the head like a tone of bricks.

    1. The tone of bricks is mostly “thud”.

    2. Jesus, Chapman. Don’t piss down my back and tell me it’s raining.

      You fucker.

      1. Sorry lightning, threading fail. That was not directed at you.

  26. This case did not limit the Commerce Clause at all. It established no precedent whatsoever on the scope of the Commerce Clause. That will have to wait another day, in the unlikely event that we get another “inactivity” case with a penalty that even Roberts cannot somehow convert to a tax. Which seems borderline impossible to me.

    Or, if we can get rid of Roberts or one of the four liberals and replace them with somebody who will enforce limits on the Commerce Clause. But hanging your Constitutional jurisprudence on a change in the makeup of the Court is historically a fool’s game.

    This case makes three precedents:

    (1) There are some limits on the feds power to muscle the states by withholding funds, but given the language of the opinion, I don’t see that having broad application.

    (2) Extreme deference to Congress, implemented if necessary by judicial “reconstruction” of legislation.

    (3) Penalties collected by the IRS are now authorized by the taxing authority.

    1. Nice summary.
      With item (2), moreover, you may as well disband the third arm of government.
      I don’t think it’s hyperbole to say that Roberts embarrassed and discredited himself as a jurist.
      The left four hates him and Kagen, to name one, ripped his reasoning.
      The right four hates him, obviously, probably wondering if he got hit on the head or something.
      The Pelosi and

      1. (hit submit too soon)
        The Pelosi and Beckel types don’t give a damn about his (lack of) reasoning, only that he said, “Right on, dems.”
        And thoughtful scholars are simply dumbfounded.
        Roberts made a buffoon of himself.
        Anyway, the word is “Congressional majority rules,” the only check left would be the veto power in the executive.
        SCOTUS’ job, apparently and outrageously, is to find, however tortuous, a rationalization for tyranny by the majority.

    2. That will have to wait another day, in the unlikely event that we get another “inactivity” case with a penalty that even Roberts cannot somehow convert to a tax. Which seems borderline impossible to me.

      RC Dean brings up a great point.

      I challenge anyone to think of an inactivity mandate that wouldn’t also be thought of as a tax in accordance with Roberts’ logic.

      If no distinction between an inactivity mandate and a Roberts tax is possible, does any such distinction really exist?

      If Roberts based his ruling on a non-existent distinction (it’s okay because it isn’t a mandate, it’s a tax!), then…

      Then the chances of overturning this are about as good as the chances of overturning Medicaid or the income tax.

      We’re screwed.

      …and Chapman making light of it reads like being ridiculed–by our own side.

      1. Well roberts did seem to place restrictions on it being a tax. It can;t be “prohibitory”, so has to be whatever he thinks is small, and he mentioned it isnt a penalty because the IRS isnt allowed to place criminal penalties for not paying the fine. There is wiggle room if a future penalty were bigger and/or lead to criminal convictions for non compliance.

        1. The IRS isn’t allowed to assess criminal penalties for not paying the “tax”?

          Garnishing your wages isn’t considered a criminal penalty? It’s a criminal penalty when anyone else does it–except for the IRS, right?

          I mean, Ken Shultz can’t go garnish someone’s wages without going to court and getting a judge to sign off on it, right? Are you saying it’s not a criminal penalty because garnishing is something that happens through civil court?

          Again, I’m seeing a lot of distinctions and no differences.

  27. I was listening to the radio on the way home tonight, and the host (Mark Levin) raised an interesting point: There is not a majority concurrence on the subject of the Commerce Clause issue in NFIB v Sebelius.

    Justice Ginsberg, joined by Justice Sotomayor, explicitly dissents from his Commerce Clause opinion. That means that he has only a minority of the court concurring with him on that point.

    Also, while Justices Scalia, Kennedy, Thomas, and Alito reach the same conclusion in their dissent, they specifically do *not* concur in his opinion in that (or any) part. I don’t know enough about what constitutes legal precedent to know if this is a distinction without a difference, but I’d be interested to hear opinions from y’all.

    If he’s correct and this is significant, then the door didn’t slam quite so hard on the Commerce Clause as some people are saying.

    1. This case establishes no Commerce Clause precedent.

      Dissents, by definition, establish no precedent.

      Nobody, not one Justice, joined Roberts’ opinion on the Commerce Clause, so it establishes no precedent. The concurring opinion that made the decision (and thus, any precedent) only joined him on the issue of the taxing authority and the Medicaid mandate on the states.

  28. WTF? Did they hire you to be Reason’s Bizarro World correspondent or something?

    It’s ridiculous how consistently wrong you are.

    1. I guess somebody had to play the part of The Weigel.

      I wonder what Chapman says about us when we’re not around.

  29. If anyone has bothered to read the Bill and how it is structured, you can really only come to one conclusion.

    1. Once 2016 arrives and the Full impact of the Tax for not having coverage hits median income level or less workers (half the nation earning $52,000 or less) will be force by the math alone to sign up, regardless of whether or not they can afford it. These will largely be comprised of self employed people and workers at businesses with fewer than 50 people (which is the majority of businesses in America.)

    At those income levels, the Tax Penalty and Premiums for the Government Plan are a wash. You pay either way.

    2. Employers with fewer than 50 workers who are currently paying all or part of the health insurance for Median or less income workers will likely dump their current plans, as they pay no penalty and the Employee will either have about the same contribution he/she had under the previous plan, or the employer can give a small raise to offset the net increasee to the worker and still save money.

    3. Employers with more than 50 workers in many cases will find it beneficial as well to drop the Private Plan for the hourly workers, pay the Tax Penalty and let the lower income classes swing into the ACA.

    In the end, the Governemnt plans’ structure will crush private insurers.

  30. This is rationalization. If John Roberts, the chief justice, can reason to the conclusion he wants to get to, what’s going to stop him in the future from doing the same thing? It would be nice to believe that this decision somehow limits government or reduces the power of the commerce clause, but what do you think is going to happen when someone challenges the RICO act or one of the other panolply of laws that is based on the commerce clause? Why would we think that Roberts won’t find some other rationale to justify upholding precedent?

    If anything, what this decision shows is that the government serves to continue its own existence. The Supreme Court, like in Bush v. Gore is as political as anything.

    1. True, but it’s more likely that Roberts simply doesn’t care about healthcare as much as he does other issues, and wanted not to blow the Court’s remaining credibility on this case. Rest assured there will be plenty of egregious giveaways to corporate interests and other “freedom enhancing” opinions in the Roberts court’s future.

      1. “Blow the credibility” of the court by applying reason and consistency to his ruling, as well as avoiding a 5-4 decision where the tie-breaking vote is the former SG for that legislation?

      2. Why don’t you go fuck yourself, Tony?

  31. I get the fact that Robert’s ruling supposedly strengthens limitations on the Commerce Clause, that he may have given Obamacare opponents the gift of calling it a tax increase, and that this ruling gives non-liberals a campaign issue.

    But you know what? I’d really rather see courts of law rein in the nanny state – because the nanny state comes from both sides of the aisle and I hate the fact that reining in such depends on elections and changes of party leadership, which, 1) may not give a change in leadership, 2) may not reverse the offense even with a change in leadership and 3) then faces us with another shade of nanny state from the other party.

    Yeah, I’d rather a body of law tell our elected officials ASAP, no matter which party they are, “No you can’t do this, it violates the spirit of the constitution, so go suck it” or more polite words to that effect.

    1. I’d prefer less polite words to that effect.

  32. “The commerce clause is not a general license to regulate an individual from cradle to grave,” explained Roberts. Congress has to use its power to lay and collect taxes for that purpose. Of course, if they don’t want to call it a tax, they can call it a penalty and the Court will interpret as a tax. Even if it’s not a tax, it is a tax. Something about walking and quacking like a duck, and all that.

    1. They couldn’t do this if Roberts called it what it is, so he decided to call it a tax.

      Meanwhile, the parasites proliferate and the credibility of the government as a protector of individual rights is swirling the drain.

  33. “advocates of limited power, individual freedom, and constitutional government … count all the ways in which our side won.”

    — Baghdad Bob

    In fact, Roberts put the unmitigated in the unmitigated disaster of the PPACA decision. No Congress has not just one but two grounds for unlimited power.

  34. Don’t let the bastards get you down Steve; you hit it spot on. Until now, the commerce clause was an blank check of power. Not only did Roberts join the left on the mandate, they were unanimous on one issue, straight party lined on another, Kagan and Breyer joined the right on one issue, all on a very political case. The government didn’t really gain any new powers (I haven’t looked, but I can’t think of any case other than poll taxes where the court has told congress it doesn’t have the power to tax) the ne plus ultra has finally been established on the commerce clause. Long term, it was a good day for libertarians. Tea Partyers… maybe not.

    1. the ne plus ultra has finally been established on the commerce clause.

      No, it hasn’t. As discussed above and on other threads, this case establishes no binding precedent on the Commerce Clause.

  35. Is upholding the mandate under the taxing power really the “least dangerous method”? The Roberts decision says that the mandate is unconstitutional under the Commerce Clause, but we are allowing it anyway since Congress can tax as it sees fit. Doesn’t this then render constitutionality a moot point? To borrow the anti-Commerce Clause argument, can’t Congress now say that you must but broccoli or pay a tax? Applying the Roberts logic, a mandate to buy broccoli has no constitutional basis under the Commerce Clause, but Congress can make you do it anyway if they implement a penalty… I mean a tax!

    Roberts saying that the Commerce Clause was not justification for the mandate is a completely hollow statement!

  36. Here are my reasons for believing ObamaCare is unconstitutional and unethical. This Act violates the Establishment Clause: The non-discrimination provision of ObamaCare mandates reimbursement of healthcare providers who are certified/licensed/regulated in their state. This means that many practitioners who do not have a science-based practice, but rather market faith-based practices (e.g. acupuncture, homeopathy) will be supported.

    Add to that, each state is to determine what is essential care to be covered under ObamaCare. The USA will have 50+ different (and changing) standards…and an unholy mess.

    Alas, I rarely have been disappointed when I fear the worst of government mismanagement.

  37. Anyone code a firefox plugin that ignores Steve Chapmen articles yet?

  38. The ruling sterilizes the commerce clause abuse but resurrects the same arbitrary abuses by expanding the tax power to include punishing inactivity.

    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.

    What if I choose not to create a shrine to Obama in my basement? Could be a crime someday.

    Biden could decide broccoli enemas are good therapy, and IRS agents could show up at your door and inspect your colon to see if you’ve gone green yet.

    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.

    Even if Obamacare is repealed, a future congress will use this ruling to impose even more sneaky and arbitrary Inactivity Taxes.

    Keep your power dry. No one’s making me shove broccoli up my arse.

  39. Wow. We’re really scraping the bottom of the happy barrel.

    1. I’m not on the ledge yet. But I am digging a bunker. With cable TV. And an arsenic kit for me and Eva.

      Maybe SuperMitt and the new Senate will scrap the tax code and include language about “Congress shall make no negative taxes” ie no taxes on inactivity. Then if it gets challenged, Roberts will have a chance to redeem his sorry arse.

      Dreaming the impossible dream feels good, and is cheaper than liquor in WA state nowadays, since the new tax hit. No matter. Soon they’ll tax me also for NOT drinking it. I bet there’s no positive or negative taxes in Galt’s Gulch.

  40. One legal scholar predicted Barnett would lose 8-1. The White House http://www.maillotfr.com/maill…..-3_11.html said the argument “shouldn’t be given too much credence in the press.” Asked about the constitutionality of the mandate, then-House Speaker Nancy Pelosi replied, “Are you serious? Are you serious?”

  41. And all this victory cost was the socialization of another 15% of the economy? SWEET!

  42. President visit the legal field which is good for democracy.

  43. When Congress approved the requirement that everyone have health insurance, it took for granted it could legislate at whim, courtesy of the commerce clause of the Constitution. That provision has consistently been given a broad interpretation?allowing the federal government, for example, to force a farmer to destroy wheat he grew not to sell (commerce) but merely to eat.

  44. the commerce clause stuff was dicta [jeez go over to Volokh, chapman] and not significantly expanding something is not the same thing as limiting it, for frak’s sake.

    What they did, my good man, is kill a little bit more of the constitution.

    http://en.wikipedia.org/wiki/A…..n_7:_Bills

    Obamacare originated in the Senate.

    SCOTUS could not have heard the case, if it were a tax, because of the Anti Injunction Act, so it wasn’t a tax, but if it wasn’t a tax and came under the commerce clause, it would be an unconstitutional new, and far flung expansion [going up against the 10th amendment]…. so… well, it’s a tax… after not being a tax….

    So its a tax that wasn’t a tax, and was made a tax wihout the nicety of originating in the house.

    This decision made further mince meat of logic, the Constitution, and the English language.

    That’s a victory for statist, cryptofascist progressives, friendo.

    And that’s all it is.

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