{"id":41509,"date":"2012-06-29T16:10:29","date_gmt":"2012-06-29T22:10:29","guid":{"rendered":"http:\/\/proteinwisdom.com\/?p=41509"},"modified":"2012-06-29T16:21:55","modified_gmt":"2012-06-29T22:21:55","slug":"commerce-clause-status-quo","status":"publish","type":"post","link":"https:\/\/proteinwisdom.com\/?p=41509","title":{"rendered":"Commerce Clause status quo"},"content":{"rendered":"

Mark Levin<\/a>:<\/p>\n

[…] A number of politicians and commentators are claiming that the Supreme Court in the Obamacare case \u201climited\u201d 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\u2019s ridiculous argument that inactivity is commerce. The status quo stands because Obamacare was upheld under the tax provisions.<\/strong> However, the bigger point is this \u2014 when a court issues an opinion, it is said to be the \u201cOpinion of the Court.\u201d The Opinion of the Court is the controlling precedent. Chief Justice Roberts wrote the Opinion of the Court for Parts I<\/strong> (background on the Obamacare law), II<\/strong> (the Anti-Injunction Act is not a bar to the lawsuit proceeding and being decided) and III-C<\/strong> (Obamacare is valid under the tax power).<\/p>\n

But respecting Part III- A, the commerce clause and necessary and proper section<\/strong>, the decision notes that Roberts is writing\u00a0for himself, not for a majority<\/strong>.\u00a0 Furthermore, the Dissent is labeled as: \u201cJustice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.\u201d It is not labeled as \u201cdissenting in the judgment, concurring in part\u201d or some permutation.<\/p>\n

You cannot say it was the \u201copinion of the court\u201d 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\u00a0formally join with Roberts), is writing for itself.<\/p>\n

In fact, Justice Thomas, in his separate dissenting opinion, wrote:<\/p>\n

\u201cThe joint dissent and THE CHIEF JUSTICE cor\u00adrectly 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.\u201d<\/p>\n

Notably, this does not explicitly state that the dissenters joined with the Chief\u2019s opinion respecting the commerce clause.\u00a0 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\u2019 parts. They didn\u2019t. There was no formal majority on the commerce clause issue.\u00a0\u00a0Should 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.<\/strong><\/p><\/blockquote>\n

No precedent, no formal majority.\u00a0 It is but dicta.<\/p>\n

No future Court need distinguish this case nor overrule it with respect to the Commerce Clause.\u00a0 But it will be cited far and wide as sacrosanct with respect to Congressional tax power, that you can bet on.<\/p>\n

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.<\/p>\n

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<\/em> we lost, but why it is in fact inevitable<\/em> <\/a>that we lost.<\/p>\n

update<\/strong><\/em>:<\/p>\n

Notes George Orwell in the comments:<\/p>\n

Roberts\u2019s 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\u2019s 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.<\/em>\u2014”George Orwell<\/a>“<\/p><\/blockquote>\n

Adds dicentra:<\/p>\n

Roberts has done the worst possible thing vis-\u00e0-vis this ruling. As we’ve seen, when SCOTUS helps expand the power of the state, IT NEVER GETS ROLLED BACK.<\/p>\n

Even if Obamacare is repealed, the Dems (and many Repubs) will\u2014from now on\u2014craft all of their liberty-crushing, Constitution-shredding legislation in such a way that they can play Schroedinger’s cat with it\u2014treat it as a mandate to prevent applying legislative rules on taxation, and then treat it as a tax to make it “Constitutional.”<\/p>\n

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.<\/p>\n

This is one more leftward click in a ratchet that we’ve never been able to click back.<\/p>\n

The Sweet Meteor of Death cannot come soon enough.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Mark Levin: […] A number of politicians and commentators are claiming that the Supreme Court in the Obamacare case \u201climited\u201d 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\u2019s ridiculous argument that inactivity is commerce. The status quo stands because Obamacare<\/p>\n

Read More<\/a><\/div>\n","protected":false},"author":9196393,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-41509","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/proteinwisdom.com\/index.php?rest_route=\/wp\/v2\/posts\/41509","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/proteinwisdom.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/proteinwisdom.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/proteinwisdom.com\/index.php?rest_route=\/wp\/v2\/users\/9196393"}],"replies":[{"embeddable":true,"href":"https:\/\/proteinwisdom.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=41509"}],"version-history":[{"count":7,"href":"https:\/\/proteinwisdom.com\/index.php?rest_route=\/wp\/v2\/posts\/41509\/revisions"}],"predecessor-version":[{"id":41511,"href":"https:\/\/proteinwisdom.com\/index.php?rest_route=\/wp\/v2\/posts\/41509\/revisions\/41511"}],"wp:attachment":[{"href":"https:\/\/proteinwisdom.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=41509"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/proteinwisdom.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=41509"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/proteinwisdom.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=41509"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}