[…] A number of politicians and commentators are claiming that the Supreme Court in the Obamacare case “limited” the reach of the commerce clause, i.e., five justices held that individuals cannot be mandated to buy insurance under the commerce clause. Actually, the five justices did not limit anything. They simply did not accept the Obama administration’s ridiculous argument that inactivity is commerce. The status quo stands because Obamacare was upheld under the tax provisions. However, the bigger point is this — when a court issues an opinion, it is said to be the “Opinion of the Court.” The Opinion of the Court is the controlling precedent. Chief Justice Roberts wrote the Opinion of the Court for Parts I (background on the Obamacare law), II (the Anti-Injunction Act is not a bar to the lawsuit proceeding and being decided) and III-C (Obamacare is valid under the tax power).
But respecting Part III- A, the commerce clause and necessary and proper section, the decision notes that Roberts is writing for himself, not for a majority. Furthermore, the Dissent is labeled as: “Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.” It is not labeled as “dissenting in the judgment, concurring in part” or some permutation.
You cannot say it was the “opinion of the court” that the mandate violated the commerce clause. You have to cobble together sections where Roberts is writing for himself and the dissent (which did not formally join with Roberts), is writing for itself.
In fact, Justice Thomas, in his separate dissenting opinion, wrote:
“The joint dissent and THE CHIEF JUSTICE correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.”
Notably, this does not explicitly state that the dissenters joined with the Chief’s opinion respecting the commerce clause. If five justices had intended for their view of the commerce clause to be controlling as the majority view of the court, they would have said so by joining or concurring in each others’ parts. They didn’t. There was no formal majority on the commerce clause issue. Should this matter come before a court again, it is not settled as a matter of precedent and no doubt the litigants will still be fighting over it.
No precedent, no formal majority. It is but dicta.
No future Court need distinguish this case nor overrule it with respect to the Commerce Clause. But it will be cited far and wide as sacrosanct with respect to Congressional tax power, that you can bet on.
The argument being made by people like Will and Krauthammer and Hewitt and Taranto and all the other “thinking” Republicans is merely and entirely political cover for the judicial activism of a CJ who was too terrified to do his job and so instead decided to enslave all of us.
Now please, the rest of you. Stop embarrassing yourselves. And, by extension, embarrassing those of us who know we lost, who know how we lost, and who (at least in my case, and the case of the readers here) know not only why we lost, but why it is in fact inevitable that we lost.
update:
Notes George Orwell in the comments:
Roberts’s opinion about the commerce clause was irrelevant to his ruling. He did not need to even pronounce a word about the commerce clause because he believes the mandataxdate thingy is kosher under the powers of taxation. Any future objection in court about overreach of the commerce clause, referring to Roberts’s opinion, will be swatted down by the opposition with the simple rejoinder: It was not material to ruling in favor of ACA, because Roberts said it was constitutional on taxation alone.—”George Orwell“
Adds dicentra:
Roberts has done the worst possible thing vis-à-vis this ruling. As we’ve seen, when SCOTUS helps expand the power of the state, IT NEVER GETS ROLLED BACK.
Even if Obamacare is repealed, the Dems (and many Repubs) will—from now on—craft all of their liberty-crushing, Constitution-shredding legislation in such a way that they can play Schroedinger’s cat with it—treat it as a mandate to prevent applying legislative rules on taxation, and then treat it as a tax to make it “Constitutional.”
There is no silver lining to this cloud. Roe v. Wade may have energized Christians into becoming involved in politics, but in the meantime, millions have died and it still remains the law of the land.
This is one more leftward click in a ratchet that we’ve never been able to click back.
The Sweet Meteor of Death cannot come soon enough.
But but but bonfires! Built out of otherwise useless copies of the Constitution! Wiener roasts! S’mores! We’re golden.
This is becoming one of those moments like the public banishment of John Derbyshire, where you realize far too many allies are willing to ignore the meaning of words as intended in order to feel good and comfortable and superior. Or a moment when allies are determined to pretend a material fact has changed when it has not, in order to cheerlead for a team without a leader.
Also, this is a moment when you realize most of the elite pundocracy cares for nothing but their careers and boosterism.
I’m having a hard time discerning which the best win for us: that we’ll now be engaged and fight hard because we lost; or the super secret cagey win handed us by super genius John Roberts.
Apparently both are good. But I’m lost at how they connect up.
We’ll start to hear the hidden boon lays in the diminished fear of the US internationally, and an accompanying greater solicitude from abroad as the US falls to the low standard of living familiar nearly everywhere else. Misery loves company.
Overview
Justice Roberts is a Coward.
Made in the USA
100% Cotton
Please note: This item is available for pre-order. Orders are expected to ship on or around July 20, 2012.
link
– I noticed today that Romney slipped a little water softner into his brave new world statement. The latest “I am your hero” promise is “I will repeal ObamaTaxCare as soon as I take office if I can.
– So theres that. Some more to make all of our weekends.
I’m thinking this willful self-delusion is driven by a couple of things. One, a need to see this as a clever legal ploy delivering benefits in the distant future despite the awful present outcome, in order to avoid the realization that no one foresaw how this proper, upright elite club of lawyers could possibly have been so mistaken about the lawlessness of the highest benches of our judicial system. Two, a bit of denial because too many Repugs refuse to believe Roberts betrayed conservatism and originalism. That would shatter the GOP illusions of how staunchly conservative Bush was.
I’m genuinely proud to know you guys. For as long as we both shall live seems to be the new variable.
– Thats always been everyones variable JH. Just normally not so immediate and obvious.
Humpty Dumpty just dropped by looking for Alice. I told him I hadn’t seen her. So we started talking about the Obama
CareTax ruling.He said, “That is some kind of fucked up. I mean, I can redefine words on the fly like a sumbitch, but even I hold them to only one meaning at any given moment.”
George, did you call into Rush’s show and get some free tea?
Professor Jacobson at Legal Insurrection thinks it is dicta too.
I know I feel dicta’d.
I’m starting to turn into a Libertarian again.
If they can’t play nice with their toys, take them away.
Nah, but that lawyer who called in to Rush actually made sense out of the nonsensical stuff we heard earlier in the day.
we need to put aside our bitterness and focus on helping John McCain make the bestest Boxing Commission for America we can
– Just to give everyone yet another warm fuzzy, its historically true that from WWII on, during every period of chaotic unrest of the magnitude we are now seeing it inexorably leads, one way or another, to war.
– Have a fuckingly nice day, and when you call on people to serve this time good luck.
I can’t begin to express how very little faith I have in the 2013 government fixing healthcare in a way we here would be happy with.
Mitt talks about “repeal and replace”. Riiiiggghht. More like “fix and tweek”.
Single payer here we come!
whatever the fuck Mitt “Romneycare” Romney is, he’s for sure not made of substantially sterner stuff than John Roberts I don’t think
, he’s for sure not made of substantially sterner stuff than John Roberts I don’t think
they’re harvard metrosexuals so there’s that
When Willard won the primaries, I consoled myself that the supremes would strike Obamacare down, and Romneycare wouldn’t become an issue.
Oh, it’s a BIG issue now, as far as I’m concerned. His vague platitudes aren’t going to cut it anymore, I want to hear exactly what he’s got in mind.
– Tell me Mr Chief Justice Roberts. Just what are you asking me to send my kid into the meat grinder of war to defend?
– I await your reply.
to defend?
harvard of course!
someone has to defend fauxcohantas?
– Then in that case let Washington eat cake.
I think John Roberts discovered he is 1/32 liberal, so he applied for admission to the club.
– If anyone knew the whereabouts of the Panzer Rat, we could ship him off with a hoagie and a pint of Irish mist with orders to setup shop in Roberts shorts, being careful to eat only one nut and save the other for winter, but he’d probably starve to death because theres no evidence Roberts has any.
I think John Roberts discovered he is 1/32 liberal, so he applied for admission to the club.
Again, Orwell wins the thread.
The argument being made by people like Will and Krauthammer and Hewitt and Taranto and all the other “thinking” Republicans is merely and entirely political cover for the judicial activism of a CJ who was too terrified to do his job and so instead decided to enslave all of us.
Hewitt knew Roberts back in the day, during some kinda presidential administration, so he’s triply reluctant to think ill of or criticize him. He keeps insisting that Roberts is a man of integrity despite the breathtaking sophistry at work in the decision. Duane Patterson rehashed the old Dan Rather argument that a man [Bill Clinton] can still be an honest man despite telling a few lies.
On the Tribble feed today, Duane got all pissy because he’s convinced that the Commerce Clause got limited, and I told him that it most definitely wasn’t. He talked to a bunch of lawyers yesterday; I cited Levin, but that’s not enough. Another Tribble called me closed-minded for insisting that Duane’s “opinion” was wrong, not just an opinion, and then after I pointed out over and over that Washington cannot be reformed, I was accused of “cursing the darkness.”
Instead of what? Manning a phone bank for Romney?
These people still think that getting a truckload of conservatives into the Beltway will turn things around.
As it’s done in the past, right?
Optimism is NOT a river in Egypt. Refusal to comply with Washington’s illegitimate dictates is the only answer anymore.
George, you are on a roll!
http://evilbloggerlady.blogspot.com/2012/06/best-comment-about-john-roberts-all-day.html Best comment about #JohnRoberts all day. #Obamacare
I tweeted this around too.
…but..but..but the venerable NYTimes tells it’s flock of illiberals…
No matter the shit sandwich served up to us by Barack Hussein Obama and his quorum of dirty socialists, I shall enjoy tender shoots of broccoli today, knowing that no one will ever have the powah! to force it on me.
That NYT piece is utter bullshit. Roberts has now said that the govt can penalize you for not eating broccoli, so long as the penalty is created in the form of a tax — passed as a penalty that functions as a tax, though not sold to anyone as a tax.
What I don’t understand is why so many so-called “liberals” are upset that the federal government can’t have unlimited power under the Commerce Clause. Do they not know that such a position is entirely illiberal, and even the mooks who still vote Democrat and aren’t silly leftists might figure it out and belatedly flee?
They think “illiberal” is like “inflammable” or “irregardless” — it means they’re liberal, only more so.
For the sake of my own sanity, I just hope the NYT’s take is correct. On the surface, it seems so. But later on, after more ‘jurisprudence’ happens, the foul Commerce Clause might come back to haunt us.
Oh, and we’ll have to mightily slam the ‘tax’ angle. BHO ran on a ‘no new taxes on the middle class’ argument, and Roberts has painted a (gasp! that WORD!) target right on his backside, by giving him this victory. We should, and must, hammer it without mercy.
No, it doesn’t even hold on the surface. This case was decided by way of the tax authority. With respect to the CC, pure dicta — and besides, if they get another liberal judge on the bench, they’ll immediately go 5 in for unlimited power to regulate everything, which they’ll add to unlimited power to tax.
The four justices who read the CC as unlimited should be removed from the bench. The Constitution, if it could, would roll itself up and bitchslap the lot of ’em.
More of that piece (plus the linky)…
That ‘flood of new litigation’ means we’ll need a flood of better judges. Which means more electoral victories.
Who’s with me?
Shut up, Inigo.
“Which means more electoral victories.
Who’s with me?”
I’m with you Serr8d, though perhaps not entirely on the proposition stated as such, since it’s too open on one end and too closed on the other.
Merely apparent electoral ‘victories’ are nice and all, but insufficient if they are not victories for candidates and constituents who intend to make of government what we intend to make of government. John Roberts (and George Bush by implication) could have hardly been a better example of what I mean to point to here as falling short.
Mostly in the Senate, where totalitarians and squishes can be kept off the bench. But even then each new Senator is only good for a couple of years at the most, and will need to be turned out as soon as feasible.
That’s starkly true. But, given our (for the most part) uneducated (read: fat, dumb and happy) electorate, we can’t get elected such ‘radical TEAParty thugs’, given the opposition will Palin them to the wall. Note the thorns she’s wearing as a result of her staunch.
Our uneducated electorate has to have included myself in the instances of Bush (and Roberts), as I voted for Bush and was content with Roberts. Wrong, wrong was I on both counts.
Better education however, has always seemed to me the first order of business (and probably the last). It’s more important than any other aspect of our political lives. And as it stands, education — with regard to our political lives as human beings, not as *labels* — in America stinks on ice.
Found this in the comments at Prof Jacobson’s site, and though from a layman it is the best argument I’ve heard yet for cutting Roberts some slack:
Here, I can see a plan: if indeed someone who is taxed/penalized files a suit the case goes to the SCOTUS, Roberts will require the government to specify the taxing authority for the legislation he essentially wrote. Will he hold to this ruling — or declare that while the mandate functions as a tax and Congress has taxing authority, Congress has to cite that specific authority? And if they can’t — and they try to re-litigate by saying it’s a penalty, not a tax, well…?
The reason I supported the Roberts appointment under Bush was the (then infamous) french fry case — where Roberts ruled that yes, the legislature has a right to make stupid laws, and they are not necessarily unconstitutional just because they are stupid. He kept the Court separate from the legislature.
Here, if this commenter is right, he’s saying the same thing. Congress can tax rather than penalize until they have to defend the tax, at which point they’ll have to show where they have the authority for this tax — an inactivity tax.
The problem is, he’s making a show of it: to get this ridiculous tax ruling, he had to rewrite the law himself. And that is judicial activism, plain and simple (for all the reasons I’ve noted over the last few days, and the last decade on this site). In making the ruling, he could have just ruled that no, Congress can’t use a tax, because the tax on offer runs afoul of all precedent. And saved us all the problem of worrying what the composition of the Court will be going forward.
Now, if the commenter is wrong — and one can’t bring suit against a tax because for purposes of bringing suit the mandate is considered a penalty, well, then forget everything I’ve just said.
Either way, Roberts ruled incorrectly and not conservatively. He may be a huge federalist — and this may have been a way to say that those who vote had better be more circumspect about the lawmakers they install — but there was no originalism involved here.
Listening to Yoo and Epstein last night, though listening as to something in the background and not closely, I think I heard the two riff off on the ‘sort’ of justice Roberts is, speaking frankly about his lack of a theoretical grounding and strength of a litigator’s grounding (Washington court insider, was an even broader term they used with respect to most of the justices).
Anyhow, their compliant seemed to be that Roberts, unlike Thomas or Scalia, is unwilling to step behind the Constitution to look at it from the point of view of its ends, or political theoretic, but prefers to treat the Constitution as we now have to treat Roberts’ own decision, which is to say without any idea what he intends, but with only the output, the product on the page.
So that analysis you’ve cited, Jeff, begins to make more sense of what has heretofore been senseless about Roberts’ opinion — at least in the step by step, mechanical operation of a logic he seems wedded to.
Listening again, I hear Yoo describe Roberts’ decision bearing the ‘mother of all opportunity costs’ (the opportunity cost being simply siding with the four dissenters and being rid of the whole thing on the grounds the four detail), which nicely meshes with the analogy I’ve been running through my mind as Roberts’ decision as akin to Bastiat’s broken window.
The four dissents see the window about to be broken and act to stop the breakage. Roberts, being a window glazier, lets the breakage take place, since he will have more work to do, and that — fix broken windows — is, after all, what he does.
Except the other four justices that joined him in upholding Obama
CareTax will give him that Madea look and say, “Who says they need to do that?”And Roberts will say, “Um, the Constitution?”
“Says who?”
“Says us.”
“You got a mouse in your pocket?”
Right. And then we have to worry about Kennedy again.
But theoretically, it could go 5-4 in favor of “yes, Congress, you do need to have some Constitutional justification for the kind of tax this is.”
Sadly — no, more, treacherously, treasonously — we can state upfront already that at least 4 Justices will vote against the Constitution no matter what. That’s a real problem, I think.
And Roberts, having joined that majority, will nevertheless split the difference and uphold the tax despite its lack of justification.
By 2014, when the first ‘tax’ penalty happens, American will be soothed and calmed by this soothing and calming community organizing.