Biggest Winner in Healthcare Decision: The Founders
Published on: June 28, 2012
show comments
  • thibaud

    A gracious and balanced effort. Thanks.

    But there’s a slight problem with this observation:

    “Cleverly, the decision took with one hand while it gave with the other. Resting the law’s validity on the taxing power rather than the commerce clause holds the line on federal power while allowing the will of Congress to be carried out. In that sense, the move was in the best traditions of the Supreme Court.”

    While it’s true that, as some of us predicted, Roberts would support the law in the main by focusing on Congress’s taxing authority, the commerce clause giveback is pretty weak porridge for the GOP.

    If Richard Primus, constitutional law prof. at the University of Michigan, is right, then it’s not at all an even trade because skeptical that Roberts’ opinion will seriously limit the reach of the Commerce Clause:

    Here’s Richard Primus, talking to Jonathan Cohn of TNR:

    “People will say the discussion of the Commerce Clause is important, but its importance is symbolic rather than practical. This decision gave the Court a free shot to say that the commerce power is limited without having to strike anything down.

    “Judges will get to say that the commerce power is limited and cite this decision. But no statute is likely to get struck down on this ground anytime in the foreseeable future. There aren’t any statutes that would fall to this analysis, and Congress is unlikely to pass any.”

    btw, kudos to Jon Cohn at TNR for his stellar and expert reporting on healthcare. Bookmark his stuff if you want to start understanding this issue:

  • BillH

    Nonetheless, that majority reasoning is newspeak pure and simple.

  • Corlyss

    I am not enough of a constitutional scholar to have an opinion worth sharing on the merits of the decision, * * * avoiding the possibility of harm based on the faulty constitutional theories that the health care law’s backers put forward.

    If one takes that sentence at face value, you disqualified yourself from commenting on the merits while asserting that the plaintiffs’ arguments lacked constitutional merit. You can’t have it both ways.

    IMO the court issued a decision on the merits while Roberts’ dicta as much as announced that the case was a political question and the court doesn’t decide political questions. I suppose they would have infuriated everyone if they had simply said “Political question. Dismissed.” This result is hardly any better. Statues never get repealed in Washington La La Land. The accretion of power remains while they fiddle with the margins.

  • jeannebodine

    So it’s considered a win when the Court rewrites legislation and enacts a tax via judicial fiat where the legislature knowingly and deliberately refused to do so? The Court rewards a corrupted political process, saving the proponents from their actions under the guise of restraint (which is anything but) and you see this as a sign that the system worked? G_d help our republic if it continues to “work” under your definition.

  • jeff landaw

    It’s struck me the past couple of decades that practically everybody in American politics _ from, say, Anthony Lewis and Garry Wills to the John Birch Society and the Tea Party claims to be acting in the name and spirit of the Constitution. That they can’t all be right is the understatement of the month, maybe the millennium, but compared to, say, the “guerre Franco-Francaise” that ran intermittently from 1789 to 1959 … well, I don’t know whether to credit it to luck or to Gawd’s favor, but I’m deeply grateful.

  • Anthony

    5/4 decision on Mandate reflects political division generally as pertains in our polity. Interestingly after 535 Federal Representatives wrestling with law/policy, final resolution comes down to one man (Supreme Court Chief). The supremacy of Constitution as backstop remains a miracle of statesmanship.

    To comparison of Marbury v. Madison (regarding commerce clause scope diminution) in terms of effect may be not only premature but constitutionally optimistic.

  • Michael Goodfellow

    “I always say… that if my fellow citizens want to go to Hell I will help them. It’s my job.” — Justice Oliver Wendell Holmes

    I’d have been more impressed by Court limitation of government power if they had actually limited it, not just found another way for the government to get what it wanted.

    They are supposed to be the third branch of government and uphold some kind of principles of limited government, not be a proofreader for Congress.

  • ms

    It was passed claiming not to be a tax but presented to the court as a tax–that seems like bait and switch to me. This horrible law was passed by slimy means in the first place and is now being upheld by Justice Robers’ too-clever-by-half analysis. I don’t call this they way the country should work, though this is by no means over. I have been angry all day and trust me, this anger will last until the election. I think many of my fellow citizens are too. The election cannot come too fast and the blue model cannot die too fast.

  • An

    Most conservatives do not realize it yet, but Chief Justice Roberts strengthened the Judiciary branch while limiting its role as a policy maker. He also advanced the cause of constraining congressional power through the commerce clause. Obamacare was a political choice and it has to be overturned by a political gesture. Sure, the legal reasoning behind the “tax” issue is a bit flimsy as many will point out how do you tax someone for not doing anything. But historians and many legal scholars will point out some of the landmark cases in our history were heavily influenced by politics.

    Nothing happens overnight, and if conservatives want to rid themselves of this type of legal reasoning (see the youtube video), prepare for a generation of more battles.

  • Herb

    This decision regarding one big mess of a law passed without a single vote from the other side but with dozens of behind the scene deals, is awful. We needed a Constitutional amendment in order to allow the federal government to pass an income tax, but now a court can rule that it is fine for the government to tax someone for not buying something. This country has come a long way since FDR, but it hasn’t been the right way. Government power continues to grow. Ask for the rate of growth to be held back, and you are called an extremist. As for actual cuts…there aren’t many politicians who would dare to say that government needs to be cut. They might never be invited to another Washington party.

    And what is Roberts doing by claiming that the government can do this as a tax when Obama and the Democrats claimed that it wasn’t a tax? What we are seeing are symptoms of an illness. It’s not a bad way to look at history; find the symptoms, and you will understand what has happened. Do we have a good doctor in the house? It doesn’t look that way.

  • dr kill

    No more in America is it enough to work hard and play by the rules. The crony capitalists and Proggs on the Left have now met the crony capitalists and Proggs on the Right. The train wreck is here. All one can do is get out of the way.

    Who is John Galt?

  • Susan

    Confusing. Obama argued that the Affordable Health Care Act passed by Democrat majority was not a tax.

    Yet the Supreme Court ruled against the Congressional act by stating that the Affordable Health Care Act is a tax -approximately $1.76 trillion over ten years according to the CBO

    Is the Supreme Court’s argument that Obama and Democrat majority failed to Constitutionally perform due process in passing the Affordable Healthcare Act via malicious lies?

    Or did the Supreme Court decision alter the malicious lies put forth by Obama and Democrat majority that the Affordable Health Care Act is not a tax?

    • Walter Russell Mead

      @Susan: the best way I can understand what the Court did is that they applied an old insight of Abraham Lincoln. He used to ask the riddle “How many legs does a sheep have if you call a tail a leg?” The answer, of course, is four, because calling a tail a leg doesn’t make it one. The Court looked at the way the provision in the law worked and decided that it was a tax, even though many people said it wasn’t. And since the taxing power of Congress under the Constitution is very broad (Congress can tax broccoli all it wants), the tax is legal.

      There is indeed something a little disingenuous here, but it isn’t the Court’s logic. It is the way the backers of the law managed to push through a tax without admitting that that is what they were doing. But under our system, it isn’t the job of the Supreme Court to throw out laws because the people who backed those laws did it in a weaselly way. It is up to the American people to look at the law, at the record of how it was argued and defended, and then to make up their minds what to do about that at the voting booth.

  • thibaud

    @ #8 ms – “This horrible law was passed by slimy means in the first place”

    Very slimy behavior indeed – on the part of those who demanded the administration provide a so-called “individual mandate” modeled on Romneycare, and who then did a 180-degree turn and attacked ACA for having … an individual mandate.

    And now they cry foul when a conservative Republican jurist upholds that same mechanism! The one that was concocted by the Heritage Foundation, pushed for many years and actually implemented by the GOP’s current presidential candidate when he was a governor!

    As Jon Cohn puts it,

    “Conservative intellectuals dreamed up the mandate and championed the concept for many years. Eventually Republican politicians embraced it and, famously, the one now running for president actually signed a mandate into law. Now those same conservatives and Republicans say the mandate is a bad idea. And not just a bad idea but a terrible idea. And not just a terrible idea but a tyrannical idea.”

    Unbelievable. Shameless, really.

  • Susan

    What isn’t confusing.

    Whatever the circumstance the real victims of Obama and Democrat majority Affordale Healthcare Act are:

    – the 50% of American taxpayers who actually pay income tax rather than the 50% like the thibauds who pay no income tax and,

    – those who do not cheat on their tax like the Tim Geitners, the Marc Anthonys, Warren Buffets and the thibauds of America cheat on their paying the ‘fair share’ of taxation.

    The Affordable Health Care Act=death to those of us who pay the burdensome tax that other do not.

  • Jacksonian Libertarian

    While I don’t believe the TEA Party is dead as the recent Wisconsin Recall election, and many primary losses like Senator Lugar’s prove, the TEA Party just got hit by both Adrenaline and the Defibrillator paddles. The TEA Party is enraged now and seeing red, the Democrats and the Obama administration are likely now facing a repeat of the TEA Party energized 2010 shellacking.

    The faith the TEA Party people have in the constitution remains unwavering, but the naive belief that the Supreme Court would protect America from unconstitutional power grabs by the Federal Government has been crushed. If the Federal Government can take control of over 17% of the US economy which healthcare represents, when healthcare isn’t even mentioned anywhere in the constitution, then there isn’t anything the Federal Government doesn’t have authority over, and the 10th amendment isn’t any protection at all.

    Amendment 10 – Powers of the States and People.
    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (If it wasn’t specifically given to the Federal Government, then it isn’t theirs.)

    The 10th Amendment is spit on regularly by the Supreme Court, Healthcare, the Environment, Education, etc… are all personal or states’ rights unjustly taken by the Federal Government.

  • Will

    “it seems reasonably clear that all nine justices vote with their legal convictions rather than their partisan interests.”

    Where exactly is your evidence for such a statement? In all the debates about Obmacare I never once heard that one of the liberal justices votes could be swayed. It was only the conservative votes that were deemed to be in play as it were. I’ll bet you if you go back 25-30 years you will find very few if any instances where one of the liberal justices voted with the conservative side. That doesn’t sound like they voting with thier “legal convictions” to me.

    Just like every other thing in American gov’t today only one side ever seems to do any comprimising. Sure we’ll raise taxes if you promise to make spending cuts, except somehow the spending cuts never happen.

    When a law can be passed by lying to the public “it’s not a tax” then the Supreme Court upholds that same law because and only because it is in fact a tax the system is broken. Welcome to Europe.


  • Susan

    “It is up to the American people to look at the law, at the record of how it was argued and defended, and then to make up their minds what to do about that at the voting booth.”

    Unfortunately, Speaker of the House Nancy Pelosi(D-CA) stated that Congress would have to first pass Affordable Healthcare Act in order to know what is in the Affordable Healthcare Act.

    How can American voters make up their minds at the voting booth when Congress passes laws they themselves have neither read or understood?

    Unlike Congress passing laws with little thought as to content, at least Lincoln looked at the sheep and saw that a tail is not a leg.

    “a little disingenuous” is too kind for what has transpired for all things related to “life, liberty and pursuit of happiness”.

    That said; the Affordable Healthcare Law was passed specifically on the premise that it was not a tax. It appears to me that the Supreme Court has thrown out the law by calling it a tax.

    WHo is telling the truth? President Obama, Democrat-majority Congress or the Supreme Court.

  • Why this Conservative agrees with the SCOTUS decision.

    I know this seems counter-intuitive, but stick with me here for a bit, OK?

    There turned out to have been three important issues decided by SCOTUS re: Obamacare today and I think they got them all correct for the reasons below. (The fourth, severability, became moot with the rewriting of the “mandate” as a “tax.”)

    By far the most important philosophical issue is this: In the complete opposite of what an earlier SCOTUS ruled in the most divisive issue of our times – Roe v Wade, still ground-zero of our societal split – SCOTUS found a way to return the real issue to the Representatives of We the People in Congress. Because this is a legislative issue, i.e. governing what and how we do things, they are forcing the legislative branch to decide. Had they just overturned it they would have – correctly, in my view – been accused of ruling ideologically from the Right just as the earlier Roe Court ruled ideologically from the Left. And since I believe in the Constitution and Separation of Powers, I think this was the correct thing to do.

    Now on to the specifics.

    The Mandate

    The issue with regard to the mandate was that the Left believed it could use a Commerce Clause that has been undergoing constant expansion since FDR to FORCE Americans to do something just because Congress wanted to. SCOTUS rejected that argument, deeming the mandate, under BOTH the Commerce AND Necessary and Proper clauses as unconstitutional. (More on the issue of taxation below.) This is a VERY GOOD THING FOR FEDERALISM AND AMERICANS. Congress CANNOT continue the expansion of Commerce to tell us what to do; America is a Republic, not a dictatorship; our Constitution defines what the Federal government can NOT do, not what it CAN do.

    Medicaid expansion

    This is a 10th Amendment issue. Never have the Feds been able to FORCE the states to increase taxes, and use taxes in a way specified by the federal government and unsupported by the Enumerated Powers. Obamacare attempted just that. Again, SCOTUS ruled this to be unconstitutional – a victory for our Constitutional republic and the 10th Amendment.

    Given the opportunity NOT to adopt the necessary tax increases, some states will choose not to, a display of the sovereign nature of the States under our Constitution. My guess is that Red states will refuse to play (many already have passed legislation or propositions approved by a majority vote not to accept Obamacare). Blue states, many of which already are (or are very near to becoming) bankrupt, and whose citizens – even in Blue WI and DEEP Blue CA – have begun rejecting additional tax increases – will raise taxes for Medicaid at their peril, or will chose not to as they just can’t afford it. Many Dem legislators understand that, if San Diego and San Jose and WI can vote to begin to rein-in the tax state, they could be voted out of office if they try yet another tax increase, especially to pay for a law to which Americans object 2:1. One could say that the worst outcome of this ruling is on Dem legislators in Blue states. Again, the 10th Amendment and the Constitution have won – a VERY GOOD THING.

    BOTH of these victories – Commerce and 10th – will have long-lasting effects in a variety of areas – and America and the Constitution won in both… and the Left – – LOST.


    By ruling that this is a tax and that Congress can tax, SCOTUS puts the entire thing UNDER THE JURISDICTION OF CONGRESS, which is where it belonged. Dems already know that, had they tried to pass it as a tax it would have failed. This is why they specifically and categorically rejected the idea that it was a tax at all. Obama on Stephanopolous specifically rejected the idea it was a tax.


    Well, if it’s a tax, it can be repealed in a heartbeat. And since President Romney and the upcoming GOP Congress already WANT to fix the tax code, guess what?

    (One could argue that, since it has now been ruled AS a tax, yet was DENIED to BE a tax when the House voted on its passage, that the HOUSE – in which ALL tax legislation MUST originate – has NOT approved Obamacare AS A TAX and so must vote again to approve it as a TAX INCREASE, but I think this reaction might do more harm than good with the Center given how the MSM would spin it.)


    I don’t see how this ruling energizes the Left to get to the polls in any numbers greater than their already-decreasing level of interest due to the utter failure of Obamanomics. They’ll just go “nyah nyah nyah,” to the Right, thinking that all is well in ProgressiveTotalitarianLand, and go on their merry way…

    But – – the Right is enraged. The Right will go to the polls in greater numbers than 2010. I think Nov 2012 will make Nov 2010 look like a Sunday afternoon picnic.

    And the Right that Romney has had trouble getting ahold of? He just got ALL of them. And the Independents? In a country that has held 2:1 AGAINST this bill since before it passed, as long as Romney plays this calmly and professionally and doesn’t come out swinging in hatred and angst and turn-off the Middle, he’ll get huge numbers of them, as well. I think this helps Romney (AND a GOP Senate and House AND GOP State Legislatures across the country) in a big, big way. And then, since it’s only a tax, and since Romney already has said he’ll reform the tax code, and since Blue states already are in or near bankruptcy and cannot afford this tax… It’ll go away, leaving a need to fix healthcare costs (we don’t have a healthcare problem, we have a how-to-pay-for-healthcare problem, BTW) that can be handled best by the market – and we will have a market-oriented Congress and President to fix that, starting January 2013.

    If they are up to the task, and I think (hope?) they will be.

    So, again, SCOTUS put the issue back in the hands of Congress where it belongs, rejected the Democrat Party’s continuing expansion of the Constitution to do whatever totalitarian scheme they can come up with, ensured faster bankruptcy for those states ruled by Democrats rather than governed by Republicans (probably turning more states Red in November), and enraged the Tea Party while at the same time NOT exciting Dem voters.

    These are ALL GOOD.

    One more comment in closing. I don’t think that forcing the Constitution to do what you want is acceptable from the Left OR the Right. It is no more acceptable to me for the federal government to force us to buy or to do something from the Left (like Obamacare), than it is to somehow demand a government of limited, enumerated, Constitutional powers involve itself in abortion or homosexuality from the Right. If the power is not vested in the Federal Government, the Federal Government cannot grab that power to rule according to the morals of EITHER side. Doing so would be the Rule of Man. America is under the Rule of Law, and this SCOTUS ruling supports that.

    With this ruling America REMAINS a Republic under the Rule of Law as written in the Constitution, STILL the greatest document of human freedom ever written.

  • John Balog

    To say this decision in any way limits the power of the re the Commerce Clause is the sort of wishful thinking that declared the WI recall vote a great victory for Democrats and labor unions. Not only does this in no way impede Commerce Clause abuse, it allows great latitude in Tax Clause abuse.

  • Walter Sobchak

    I say it is socialism, and I say the h311 with it.

    John Roberts is now Obama’s [lady canine companion], and will be reviled by true patriots until the end of time.

  • thibaud

    Susan #14: “the 50% of American taxpayers who actually pay income tax rather than the 50% like the thibauds who pay no income tax…”

    Hello Susan – just to correct your ignorant slurs: top tax bracket here. Entrepreneur. “Pre-existing condition.” As an individual, we were denied insurance by Anthem and the rest.

    America is a great country. I thank my lucky stars I can build a business and raise a family here. But it is VASTLY more difficult to do those things than it could be, and should be, because of our idiotic healthcare kludge that benefits no one beyond a few oligopolistic for-profit health insurance companies. It is bankrupting us.

    Universal health care is PRO-BUSINESS.

    It is PRO-FAMILY.

    It is pro-American, and it will come to this country, sooner rather than later – despite its foes’ slimy tricks, crony capitalism and “get the government out of my medicare” know-nothingism.

  • thibaud

    Alex #19 – “SCOTUS put the issue back in the hands of Congress where it belongs … and enraged the Tea Party while at the same time NOT exciting Dem voters.”

    Dream on. As a moderate, pro-market, DLC-style Democrat I gave the TP a close look a while ago. I came away appalled by their ignorant hostility to any and all things related to the safety net, and especially, the lies and silliness about the pseudo-market that is healthcare.

    The Democrats I know are more fired up now than they’ve been at any time since 2008. And the Obama campaign’s micro-targeting machine, which has hired stellar talent from the tech and data science/analytics world and has been refining its approach for almost a year now, will EASILY find every voter with a pre-existing condition living in those 500 precincts in OH, CO, FL, VA, NC, and IA.

    And they, and we, will vote to ensure that no TP ignoramus ever gets away with the outrageous bait-and-switch scam that the GOP tried to pull with its support and then hostility to the individual mandate.

    We will vote in November on this issue, and we will prevail.

  • thibaud

    # 19 – Alex – “The issue with regard to the mandate was that the Left believed it could use a Commerce Clause that has been undergoing constant expansion since FDR to FORCE Americans to do something just because Congress wanted to. ”

    Again, the mandate was CREATED BY REPUBLICANS.

    It was conceived by the Heritage Foundation – right-wing think tank.

    It was implemented by a Republican governor – who is now the GOP presidential candidate.

    It was insisted upon by the GOP congressional delegation when the ACA was first mooted.

    You wanted a mandate. And now you have it.

    So show a little gratitude, will you?

  • thibaud is a treat!

  • I seem to remember John Roberts himself explaining how the legitimacy of SC decisions depends on public acceptance, which is why he found it so important (at least until this time)to get consensus on decisions. Does anyone else remember these discussions?

  • There is no denying the importance of the Supreme Court decision, but the more important question is whether the American people will accept the constitutionality of ObamaCare. I don’t happen to know whether they will. The jury is still out.

  • Duane

    A good analysis, and I with luck the hopeful pieces play out, but it misses a central point.

    There’s been a lot of talk over the decades, but the central reality of the last sixty years has been the Imperial Court. The Left’s feat 1950-’75 of “legitimate” social reform via Judicial capture was deeply impressive, and the Right has been trying to play the same game via the same “legitimacy” for 30+ years – Social Reform via Judicial (Re)capture. The Right has been pursuing its own “Long March” for 30+ years; but instead of a Long March through the Institutions, the American Right has targeted one and only one institution – the Supreme Court of the United States. The mission? Capture the Supreme Court, and impose an ideological AntiWarren Court; anti in the meaning of antimatter to matter.

    In refusing to carry through on the implicit portfolio he was appointed to execute, I think John Roberts has let loose far more than he realizes. I doubt the American Right will abandon its desire to “take back America,” but there is now the very real possibility that the American Right will abandon or at least vastly scale back the “Social Reform via Judicial (Re)capture” strategy. For such a revised approach to be successful, the overarching authority of the Imperial Court will need to be pruned back to where the Court is merely Federal. That is not necessarily bad – America’s politicians have abandoned far too many of their responsibilities to post-facto judicial arbitration in recent decades, leaving the politicians free to write pretty wish lists. But a significant diminution of the stature and scope of the Court will not be what we have been raised to expect. Not nearly. Another facet of the Blue Model’s decay playing out? Cooperative and ambitious Courts were central players in building the American variant.

  • Jim.

    ObamaCare has to be abolished.

    It will lead to massacres in the War on the Young. (Between incentives to abortion on one side and incentives towards euthanasia on the other, I do not exaggerate.)

    It will lead to unprecedented disasters for this country in the War on Arithmetic. When people think “coverage” they mean “free health care”, and never think about how it’s actually paid for. This is the recipe for the same fiscal disaster that’s overtaking Europe and heading for this country.

    It will lead to a complete reversal in the wars on the diseases against which American medicine has been leading the charge. We will find fewer cures. Those cures will be more expensive and less available for longer periods, if they are ever discovered at all.

    If 2012 does not complete the work that 2010 started, America will follow Europe to destruction.

    Tear this monstrosity out, root and branch. Take them down, every single politician who voted for it.

    This must not stand.

  • cja

    thibaud wrote: “And the Obama campaign’s micro-targeting machine, which has hired stellar talent from the tech and data science/analytics world..”

    It’s truly terrifying that these are the tactics used by the president of the United States

  • Susan

    “top tax bracket here. Entrepreneur. “Pre-existing condition. As an individual, we were denied insurance by Anthem and the rest.”

    Perhaps you live in a highly over-regulated health insurance market-like NY State-which limits access?

    As an entrepreneur you would know that a better course of action than ‘Universal Governmant Care’ would be to deregulate burdensome regulations placed upon the private health insurance industry. An entrepreneur would encourage the market compete across state lines, encourage the ability to compete for our dollars (I lived in NYC 20 years, self-employed middle income, there is no competitive environment to choose a health insurance product)

    If you are a top tax bracket entrepreneur then you would know that what your ‘Universal Health Care’ demands we will be competing against one another for access to limited government care

    If you are a top tax bracket entrepreneur you would know that your universal health care will pit us against one another. It will create a tier system in which affluent and well-connected will receive access easier and faster than the rest of us.

    If you are a top tax bracket entrepreneur then you would know that under your Universal Health Care all the top tier doctors will migrate towards only serving the affluent and well-connected and the lower tier crappy doctors will be serving everyone else.

    I do not believe you are a top bracket entrepreneur, if you were as such then you would be as horrified by the $1.76 trillion Healthcare Tax coming to your home

  • wef

    A too-clever-by-half weasel opinion has to be have something nice in it, right?

    Sounds like Reagan’s story of the boy in the room full of manure.

    Keep on spinning repubes.

  • Arkeygeezer

    This decision and the language of the act itself makes it impossible to enforce Obamacare.

    The Affordable Care Act cannot compel the States to participate by withdrawing all Medicaid funding. It can only authorize the Federal Government to hold back funds to support the Affordable Care act itself. The States can refuse to participate without penalty to funds supplied presently to the States.

    If individuals do not get health insurance, the individual mandate will be enforsed by the Internal Revenue Service, EXCEPT the IRS is not allowed to use criminal prosecution as a punitive sanction by the ACT, see 26 USC §5000A(g)(2)

    In other words, if you don’t get individual health insurance, you violate the law, but the IRS cannot enforce it.

    The Federal government cannot force the states to participate, and cannot use criminal sanctions to enforce individuals to buy insurance.

    The upshot, as I read it, is that the Federal Government can enact ObamaCare as a Tax, but they cannot force either the states or individual citizens to pay for it,

  • Patrick

    You say:

    “Cleverly, the decision took with one hand while it gave with the other. Resting the law’s validity on the taxing power rather than the commerce clause holds the line on federal power while allowing the will of Congress to be carried out.”

    Untrue. The language in the opinion regarding the Commerce Clause is irrelevant and non-precedential. It is what we lawyers call dicta. It has no binding effect. Lower courts can ignore it.

    This opinion does not holds the line on federal power. The decision says Obamacare is within the power of the federal government, except in one small, inconsequential way.

    If I want to do something and you tell me I can’t do it under the Commerce Clause but I can do it under the Tax Clause, I say “Thanks for approving what I have done. Drinks are on me!”

  • Mr. G

    Well if the founding fathers are the heroes is Elaine Kagan the goat? We are spending a lot of time analyzing the swing vote of Roberts but if Kagan’s decision matched her views when she was working for the Obama administration shouldn’t that be taken as a breakdown in the judicial process? Have any legal minds addressed her decision?

  • The central issue of our times:

    The power to tax is the power to enslave.

    For what are you willing to be a slave?

    For what are you willing to enslave others?

    Pass it on. Claim it as your own.

  • Voluble

    Our institutions absolutely did not work. They failed spectacularly. Every single dirty and lawless trick was used to pass this comprehensive [profanity removed] and then the Chief Justice of the land saw it as his job to rewrite the bill so that it could withstand Constitional scrutiny instead of striking it down as written. Do you know how ANGRY people are that they were lied to every step of the way?

    EVERY institution in our country failed us in this process and everyone who touched this thing gamed the system to usher it along. In the end no one even read it… not the people who voted for it, not the people who wrote it for the parliamentarians, not the Chief Supreme Court Justice who ruled on it. You can’t even claim it prevailed as the wish of the people because it is overwhelmingly despised. It was rammed down by the elites and they did not care what method they used to do it just like the European elites did with their union.

    And the equivalent to the Europeans not being able to deal with their fiscal mess would be our fiscal mess where our rulers can’t even pass a [darn] budget and our miserable, stuttering failure of a president cannot even muster a SINGLE vote from his OWN party for the ridiculous budget he proposes. He controlled all branches of the executive and legislature and STILL ignored the law requiring him to produce a budget. All the while we run up more debt in his single term than very nearly ALL the cumulative debt of every president who came before him with absolutely NOTHING to show for it.

    NO, our system most certainly did not work in any shape form or fashion because we lost our system sometime around the time FDR rolled the court. We have not had a legitimate system since then. Even the illegitimate system we have was circumvented at every step and we are about to reap the whirlwind because there is no way in [heck] Obamacare will ever be accepted as legitimate given the shenanigans that made it law.

    Roberts was a fool to worry more about what the DC cocktail circuit thought than what the law said and he is a fool if he thinks we will ever accept his ruling. He worried more about protecting his legacy in the eyes of the media and the most tyrannical segments of our society than he did about protecting our essential liberties.

    The country is very much on the verge of breaking apart because of the predations of our government. The people who would be free loathe those who would enslave them and the tyrants who want to control every aspect of their neighbor’s lives loathe those same neighbors. The country is more polarized than ever and this is what the current president wants as it allows him to rule by fiat and decree. He makes no bones about letting no crisis go to waste.

    SO here is the thing… you can use force to make people comply with this thing and you will have your healthcare bill… but you cannot be seen as anything other than a foreign occupying power on the body politic and the government will be seen as being even more illegitimate than it already is. People who understand the Constitution and who love liberty will NEVER accept this ruling and they will NEVER accept Obamacare as a legitimate function of our government. Any compliance that it receives will be solely due to the threat of force. And if one side is so skippy to use force in this manner how long do you think it will be before the other side catches on that this is how it is done? If Supreme Court justices can be rolled from a little social pressure do you really think the other side won’t start applying that pressure?

    No, the Tea Party is the only rational group left. They are the only sane and rational group that offers any hope. Progressive policies have bankrupted us and on top of the mountain of debt and pile of completely unsustainable programs that have been forced upon us we are going to enact this piece of [scatological comment removed] right in the middle of the worst recession we have had in living memory! A recession brought on by the federal government trying to make sure everyone had a home just like it is trying to to make sure everyone has healthcare now.

    These people are just incapable of learning form their multi-trillion dollar mistakes. Does anyone SERIOUSLY think a lush like Nancy Pelosi sobered up long enough to reconstruct our entire health care system and created something that is anything other than an unmitigated disaster?

    And for what have we done all of this damage? The thing is designed to fail and lead to single payer so it was a completely cynical exercise from the start.

    Our leaders are full-on, [please stop cursing –ed] insane. We are afflicted with the worst ruling class since Roman times.

    You would have to be an unsophisticated rube and fool of the worst sort to claim this as a victory for our system. The Founders sure as [heck] would not consider it as such. They would be grabbing their muskets and trying to set things aright.

  • Herb

    The main point should be that if you deny the government to right to regulate this via the Commerce Clause, clearly a correct reading of the Constitution, you cannot then make an end run around that and allow it through coercive taxation, taxing someone for not buying something. How the hell is that in the Constitution? It is quite Orwellian. How did Roberts come to that, and why?

  • To many Conservatives, me among them, Chief Justice John Roberts was an icon: somebody widely and uncritically admired, someone principled in upholding the law and the Constitution. So it’s sad to see him deciding between constitutional principle and institutional principle. Because, make no mistake about it, Roberts’ decision on ObamaCare was designed to burnish the standing of the Supreme Court.
    The Left has been very busy warning Roberts that striking down ObamaCare would put into question the Supreme Court’s role as an a-political institution. Roberts brief in his decision on this case showed that he took that to heart. So he joined the Liberals on the Court – ironically, whose vote was never in doubt because of their politics – and issued an opinion designed to show two contradictory things. First, to show that he could rise above ideology by saying ObamaCare passes constitutional muster, while simultaneously rejecting the primary argument for its constitutionality, the Commerce clause.
    What he demonstrated instead was that he was a man who cared more for his reputation than for the Constitution. I’m sure he believed that he was giving the Right the words they wanted to hear by rejecting a boundless Commerce clause. But the people who are concerned about an all-powerful State care very little whether the club being used to beat them into submission is the Commerce clause of the power to tax.
    Conservatives, like George Will, who believe that Roberts’ decision represents a victory, are mistaken. And Roberts, who hoped to sustain the stature of the Supreme Court has done the opposite removing the last vestige of faith held by Conservatives that a slim majority of the court stood between the people and unlimited government. The Roberts Court is now a results oriented court and you can’t get any more political than that.
    Rush Limbaugh said it well yesterday when he said that it’s now up to us. The court is no longer there to protect the people from the government.

  • huxley

    WRM: Not buying.

    It seems clear that Roberts rationalized his way to the conclusion he wanted by a means (“It’s a tax”) which was strenuously denied by the President and his legislators, using arguments that were not taken seriously by other legal scholars and pundits in all the speculation leading up to the decision — including by the four liberal justices on the Court, who did not care how Roberts arrived at his vote, so long as he voted with them.

    It seems likely by the language of the opinions that this was a last minute change of heart on Roberts’ part and that initially he was voting against the bill with the other conservatives plus Kennedy.

    In Biblical terms, Roberts cut the baby in two then washed his hands.

    Making a political decision to safeguard the Court from charges of political partisanship is a contradiction that won’t wash.

    No, this is a disgrace to Roberts and to the Court that will be remembered as such.

  • thibaud

    Such ingratitude!

    Will no Republican thank the Chief Justice for giving his party what it so earnestly demanded?

    As I predicted, Roberts signalled to Congress and the nation that reforming the tax code is the necessary precondition for serious healthcare reform – not Republican/Heritage Foundation/Romney gimmicks aimed at preserving healthy profits for the health insurance mafia.

    And now another fearless prediction: John Roberts’ decision will be seen by future historians as having done more to move us down the path toward the public option than any American in modern US history.

    God bless John Roberts!

  • gringojay

    Kagan should have recused herself for having
    previous advocacy & then the court’s deliberations would have bogged down enough for
    the remaining justices to find a way forward other than this expediency of neutering the conflict as if it is just a tax.

  • Yahzooman

    Souter, Kennedy, O’Connor … and now Roberts.

    These Republican-nominated members of the Court regularly compromised and sided with the liberal wing of the Court.

    Please, anyone, name me one liberal member who crosses over and sides with the conservatives.

    Remember that next time a liberal tells you that conservatives are pig-headed and rigid.

  • mac

    Alex Scipio was correct. The Right is enraged. Things will get worse. What fools like thibaud don’t understand is that they need to have the entire political entity function properly to get what they want. Their actions have insured that it isn’t going to continue to do so.

    There are far too many conservatives who are so screamingly angry at the tactics of the left that they’ve decided to take up their mantra. “By any means necessary” cuts both ways, except now it isn’t the poor and stupid, led by left-wing criminals, disrupting the system. Instead, it is smart and capable people who are tired of being plundered. Watch that demographic stop voluntarily complying with government demands and see how long the government lasts.

    We now live in a society where only 20 per cent feel the government has the consent of the governed. Most of the other 80 per cent have come to feel that beating the government any way they can is perfectly legitimate. “Who is John Galt?” attitudes increase by the day.

    Our society is fragile. The left has made it very clear since the 60’s that they would either rule or ruin everything they could. Well, now both sides are playing that game. I see tremendous parallels between the modern US and 1936 Spain. Check out who won that match.

  • Jim.


    When someone who’s poor wants their health care paid for, that’s just desperation.

    What sort of adjectives can we come up with for a prosperous Silicon Valley Entrepreneur-Liberal who wants their health care costs paid for? “Entitled”, in the worst sense of the word. “Disgusting” comes to mind, too.

    What can we say about someone who wants every single young couple from Ohio (and every other state in the union), struggling to save enough money to start a family, to get socked with punitive premiums because he doesn’t want to cover his own expenses?

    Should we clue him in, that if his health care expenses are so high that he can’t afford to cover them, ObamaCare is probably going to cut him off — just like the insurance companies he so despises? No, wait, they’re probably just going to delay, waiting out the clock until he drops dead of complications. Much better system, eh?

    On the other hand, the best proof he’s not the entrepreneur he claims to be is that he’s ignorant of the fact that health insurance companies actually have very low profit margins. If they’re sharks, they’re very weak and skinny sharks.

    Honestly. Who believes that they’re improving their rhetorical position by saying they’re prosperous but still want the government (i.e., the rest of us) to pay their bills for them?

  • JimGl

    Yeah, it’s not a mandate to buy tickets to the local sports team, but the law says if you don’t you’ve got to pay for them anyway. But it’s not a mandate, naahh.

    Smart. I think the communists used to call the people who accepted arguments like this “useful idiots”. It’s like calling voluntary abortions, “health care”. Now you know what they meant when they said “Words have meanings”.

  • JimGl

    Just saw this excellent quote:

    Erik M. Jensen (Case Western), Does the Taxing Clause Give Congress Unlimited Power?, 135 Tax Notes 1515 (June 18, 2012):

    The idea has gained currency that the Taxing Clause in the Constitution gives Congress the power to do anything, or almost anything, that would be funded by taxation. Most recently, that argument has been advanced in connection with the litigation about the individual mandate in the Obamacare legislation — by, among others, legal philosopher Ronald Dworkin. If the penalty for failure to acquire suitable insurance will be a tax, then, it is argued, the requirement to acquire insurance, the mandate, will itself be a valid exercise of the taxing power. If that’s right, it certainly isn’t obviously so. Since almost everything the national government does is funded through taxation, that understanding would lead to a conception of congressional power that is effectively unlimited, and the Taxing Clause would trump almost all other grants of congressional power in Article I, section 8.

  • thibaud

    “Kagan should have recused herself”

    Scalia should resign from the Court and pursue the calling that his recent SCOTUS opinions show him to be best suited to: blogging, tweeting, blathering on cable.

  • SamC

    The healthcare bill and the ruling are political choices. The latter should not be.

    But when it comes to the EMU there is NO political solution. It is a pure math path problem and one cannot solve math problems with a vote.

  • thibaud

    uh, Jim? As Bobby Kennedy put it to a hostile med student audience, universal health care will be paid for by you and me and ALL OF US.

    The point is to sever the link between insurance and employment, and thereby stop the obscene subsidies to a for-profit health insurance industry that adds next to no value while leeching hundreds of billions each year in administrative waste.

  • SamC

    There is also a math issue at the bottom of the larger health care problem.

    People think what you pay for healthcare is the cost. It is not. What you pay is the price. The cost of healthcare is what it costs the providers to provide the service. No body is trying to get a handle on the actual costs and it will never happen in a third party payer system.

    The government contributes mightily to the higher costs through more and more regulations.

    In any system where the prices are being forced down but the costs are being forced up, you have massive disfunction.

  • Marty

    So, what can Congress NOT do with the taxing power as now completely unfettered, that they could have done under a more expansive reading of the Commerce and the Necessary and Proper Clauses?

    Making these future governmental expansions into tax issues may help focus the public’s attention and certainly will enhance Grover Norquist’s position, but beyond that I’m not sure it isn’t just potato-potahto. Either way, Congress can do just about anything they want to do, enumerated powers be damned.

    So I can’t be forced to buy a newspaper, I can just be taxed if I don’t (or, more precisely, cvan’t prove that I did). That’s not just a farfetched example, look at some of the ideas to save the old media that are floating around in Washington.

    In the meantime, the government still has its new power to decide what is and is not covered by medical insurance (like abortifacients), to redirect and encourage or stifle innovation, reward its friends and threaten its foes, the whole s**t-sandwich.

    I’m not inside Roberts’ head and don’t pretend to understand all his thinking, but that very bad law still stands and still threatens the future health of my loved ones and myself, and the fiscal health of my country. Those are teh facts… all the rest is speculation.

  • This ruling delegitimizes Roberts with every one of his colleagues. It sets a precedent none of them will respect any more than they respect him, which will be sorely diminished. The first chance the Court gets to reverse it, all that he has done will be for naught.

    And that’s if all that his DEFENDERS are saying about him is true.

  • thibaud

    @ Jim – before this thread gets any uglier, perhaps you’ll reconsider going down the path of hurling ad hominem insults at a stranger.

    Again, I am not advocating the GOP/Obama half-arsed reform that preserves the core feature of the system, which is employer-based insurance that supports a massive private insurance sector.

    I am advocating we move toward what every civilized nation in the northern hemisphere, plus Australia, has, which is a backstop of universal health care, paid for by taxes, and supplemented by optional private insurance purchasable across state lines.

    So enough with your sore-loser insults.

    And have another piece of mandate pie. The Heritage Foundation and Governor Romney say it’s delicious.


  • My earlier comment must have been missed:

    The central issue of our times:

    The power to tax is the power to enslave.

    For what are you willing to be a slave?

    For what are you willing to enslave others?

    Pass it on. Claim it as your own.

  • koblog

    “Institutions” my eye. The Supreme Court, Congress and the Presidency are the same thing: an ever-expanding, power-hungry organism that will never willingly give up its influence and power.

    We are delusional to think the court is somehow willing to protect States’ rights.

    Why should it? In a power struggle between the people of the several states and the de facto monarchistic central government, who do you think the court (being one third of the aforementioned central government and eager to garner power to itself) will side with?

    After all, what good is being called “Supreme” if you have to follow a mere Constitution?

  • FJL

    I think the Chief’s opinion is brilliant. It:

    1. Bars Congress from using the Commerce Clause to regulate inactivity. This is a stark rejection of the concept that Congress can regulate every aspect of our lives under the Commerce Clause.

    2. Bars Congress from using its Spending power to force states to become mere vassals bound to enforce federal policy instead of sovereign entities with the power to choose their own policies. This is a clear restraint on an overreaching federal government and a reminder that we have a federal system in which states retain all power not expressly granted to Congress.

    3. Shows admirable judicial restraint and due deference to the co-equal legislative branch. By finding a way to uphold the law, the Chief is sending a clear message to the American people about our system of government — Congress does have broad powers to enact legislation, including bad legislation, and it’s not the Court’s job to rescue the public from that legislation; only the voters are to blame and only they can change the outcome at the ballot box.

    4. Calls the individual mandate what it is and always was — a tax; a massive new tax on the middle class; a tax that this administration and those in Congress who voted for the law attempted to disguise as something other than a tax. The veil has now been lifted.

    Every poll I’ve seen suggests that the majority of Americans dislike ObamaCare. If that’s true, then they can do something about it by making their voices heard in November.

  • Xiaoding

    This article is a disgrace.

    No mention is made of the central issue: how can you “tax” someone, when no econmic activity has taken place?

    It is a tax based on mere existance. It makes the individual a slave of the IRS.

    This article is an exersise in denial. The entire govenment is corrupt, to the core. Only an uprising from the PEOPLE can cure this condition.

    The Fonuders wisdom? Not in this decision!

  • Mike

    Many years ago when the Earth and I were younger, I was a lieutenant in Germany. I ran a mess hall, which is now called a “Dining Facility”. My mess sergeant was a crusty old guy. I once mentioned to him that some were complaining about the choice of food. He replied: “They have lots of choices, sir! One meat, one vegetable, one starch and take it or leave it.” If I had taken his wisdom to heart, I might now be a Constitutional Law Expert.

  • koblog

    The Founders, knowing the evil of a monarch’s heart, split the federal government into three parts with “checks and balances” to control each other.

    The question then arises, “What if all three branches of the federal government conspire to collect all power to themselves?”

    The people who were asked to ratify the Constitution (initially sans Bill of Rights) must have asked that question too.

    The founders provided for that eventuality, too, in the the Second Amendment — the very one Eric Holder sought to destroy with Fast And Furious “under the radar” as Obama overtly stated.

  • thibaud

    The path to victory this November for the Obama campaign in the dozen or so “battleground counties” in Ohio, Virginia, Colorado, Florida and maybe Iowa is now clear.

    Each of these states has two or three counties, each comprising about 250k-350k voters, who in aggregate will determine the outcome of this election.

    In each county, it is possible to identify voters who have been denied insurance by our insurance mafia’s capricious, self-serving definition of a “pre-existing condition.”

    For example, dIabetes is deemed by these leeches to be a “pre-existing condition.” So is asthma. In fact, per HHS, as many as one half of all Americans – and over has what the insurance mafia would deem a “pre-existing condition.” It gets worse:

    – nearly ONE IN FIVE Americans with “pre-existing conditions” is uninsured.

    – Another 15 to 30% of Americans with good health today will develop a “pre-existing condition” within the next eight years.

    – for people over 55 but under 64, the incidence of “pre-existing conditions” is even higher.

    As HHS notes, “Without the Affordable Care Act, such conditions limit the ability to obtain affordable health insurance if they become self-employed, take a job with a company that does not offer coverage, or experience a change in life circumstance, such as divorce, retirement, or moving to a different state.”

    So riddle me this, all you technophiles out there:

    How hard do you think it will be to construct a database that joins the voter rolls for at most 15 counties in five states with those key individual attributes – such as …

    – age 55-64

    – unemployment

    – recent divorce

    – retirement

    – moved into the county from a different state since the last election

    … that are each highly correlated with an individual voter’s extreme vulnerability to losing EVERYTHING should the GOP roll back the ACA?

    This isn’t rocket science. And Team Obama has advanced scientists from the best tech firms and CS departments helping them.

    Eat yer mandate, GOPpers. Because ye can’t have any meat if ye don’t eat yer mandate.

  • koblog

    WRM, at #15 you state, “It is up to the American people to look at the law.”

    You’re talking about the 2700-page “law” of which Speaker of the House Nancy Pelosi said, “We have to pass the law to find out what’s in it”?

    Just how do the American people look at such a law when it is forced down our throats on Christmas eve in the dead of night through partisan trickery and maneuvers?

    Remember, not one Republican voted for it and Scott Brown won Ted Kennedy’s MA seat based on the promise to defeat it.

  • Boritz

    ***Nevertheless, our institutions still work more or less as the Founders designed.***

    What then, pray tell, would signal that this was no longer true?

  • NJ Mike

    Thibaud, do you understand the difference between a STATE and a COUNTRY?
    If so, you are being just another mendicant democrat.
    The 10th amendment allows MA to enact a mandate and excludes the USA from doing so.
    Now hie thee back to your “entrepeneurin'” I think the guy in the VW bug wants a dime bag……

  • Ain’t nobody gonna prevail Mt Thibaud cause the American medical system costs twice as much as a percentage of GDP than it does in the rest of the developed world. It is 16% of GDP and rising and produces no better health outcomes. It is unsustainable and I see no recognition on either side of the debate that medical system is twice as expensive as it should be. Until that is faced it is all fiddling around the edges. I don’t know what is happening with preexisting conditions,(a real issue I readily acknowledge), but I know what is happening to my 21 year old grandson who is now insured under his parents policy to age 26 thanks to the new legislation – until his parents got a letter saying that a $5000 deductible applied. In Australia we have a public system the covers everybody and their conditions preexisting or otherwise and a private system that complements the public system all for 8.5% of GDP. I’m an American and have experienced both systems and listening to this debate from the outside is like listening to two parents fight over which college their 6 year old is going attend when the kid is dying of terminal cancer.

  • thibaud

    Lorenz – the public option (+ supplemental private insurance purchasable across tate lines) is vastly MORE EFFICIENT than our current kludge.

    Other nations with universal health insurance spend far less per capita than we do, and they have outcomes that are on balance even with or better than ours.

    The public option is the only financially sustainable approach. It’s good for business, good for families, good for America. Join our side, Lorenz.

  • vanderleun

    Elsewhere, this observant observation:

    the usually insightful Walter Russell Mead simply doesn’t get it. He writes:

    ‘I am not enough of a constitutional scholar to have an opinion worth sharing on the merits of the decision, but in form and execution this was a decision that will reinforce the Court’s position in the country while, so far as I can see, avoiding the possibility of harm based on the faulty constitutional theories that the health care law’s backers put forward.’

    “I’m not enough of a constitutional scholar to be called an expert, but I do know enough about the law that, after reading this decision, I can safely say that Mead is correct in one respect: the possibility of harm based on faulty constitutional theories that the health care law’s backers have put forward has been avoided. Unfortunately—very unfortunately—the possibility of harm based on faulty constitutional theories that the health care law’s backers have NOT put forward has been tremendously increased.”

    “What he actually did was far stranger and more singular, and quite possibly even more threatening to liberty. He:

    (a) found a legal principle no one was arguing (possibly because it doesn’t make much sense)

    (b) expressly ignored the will of Congress and re-wrote its law for it

    (c) said the penalty was a tax for one purpose but not another

    (d) ruled that Congress could do almost anything to compel behavior if it used its taxing power

    (e) ruled Congress could do (d) without explicitly using said taxing power and even while explicitly denying it is using said taxing power, so that the people who elect members of Congress cannot know what is happening at the time”

  • thibaud

    #64 Mike – you’ll have to get out of his trousers first.

    Now run along, little one. Eat yer mandate.

  • Mick The Reactionary

    The Affordable Care Act (ObamaCare) was passed by cramming down the throats of a majority of Americans who hated the bill.

    But Chief Justice Roberts appointed by Great President GW Bush, a gift that keeps on giving, declared that Mandate is a Tax and State can tax inaction.

    Now that we know it’s OK to tax inaction, Repubics should go on the offensive, for once, and pass the following bills –

    Gun ownership (as in Switzerland) for
    sane, law abiding citizens. Failure to own a gun and be certified to use – taxed, $10,000/year.

    Basic fluency in speaking English with verbal test required. Failure to pass test – taxed at $25,000/year.

    Failure to prevent unwanted pregnancy resulting in abortion. Each parent – taxed, $30K per.

    Failure to purchase and use deodorant – taxed, $5 per occurrence.

    Former and current terrorist college professors – taxed, $100K per year for professor, $10M one time tax per tenure appointment for University.

  • Mick The Reactionary


    “Resting the law’s validity on the taxing power rather than the commerce clause holds the line on federal power while allowing the will of Congress to be carried out.”

    What do you mean?
    What is the difference between federal power and Congressional power? If you mean executive and Congress, they are both federal entities.

    “In that sense, the move was in the best traditions of the Supreme Court.”

    If only your goal is a Federal Government that can tell you what eat for breakfast and punish you if you disobey. In other words you goal is a tyranny.

    So Professore, are you really applauding SC facilitating tyranny or it is just a muddle thinking?

  • Jim.


    An “ad hominem” proposition boils down to “that person lacks merit, therefore their argument is lacks merit.”

    What I presented to susan with is, if anything, the inverse of that proposition… “thibaud’s argument lacks merit, and such an argument demonstrates a staggering lack of character on his part.”

    Thibaud, let me put it to you in terms you’ve argued before — you’re prosperous and you don’t want to pay your own bills, instead dumping them on the public… particularly on those less prosperous than yourself. You criticize bankers for the same fault. Are you incapable of seeing the similarity here? Or are you simply an ideology-blinded hypocrite?

    Evidence points to the idea that you are what you despise.

  • thibaud

    A superb first-hand account of John Roberts’ attempt to emulate his judicial hero, John Marshall, as related by Jeffrey Rosen in TNR (“How the Chief Justice Used Obamacare to Reveal His True Identity”):

    Rosen nicely summarizes what those of us saw as the main reason that Roberts (my words) would surprise us all and uphold the ACA by focusing on Congress’s taxing authority.

    As I predicted, Roberts showed himself to be more concerned with the legitimacy and strength of his institution than with ideological purity.

  • Rich K

    Man, every site I go to has these same arguments over and over.Look everyone, you love it or hate it but the bottom line is Democrats,and ONLY Democrats, passed that bill. If you want it gone or modified you will need to have more republicans in both houses and the white house too.Its That Simple.

  • Gene

    Thibaux, can you please explain why it helps things to keep bringing up whatever Heritage Foundation/Rommey backstory lies behind the mandate? 99.5 percent of the Repubs or Independents in this conversation had nothing to do with that or had no knowledge of it. You’re right, I didn’t know any of that history you keep reminding me of. So what? I don’t like what’s in front of us now, just as I WOULD NOT HAVE LIKED the Heritage plan either. Geez, get over it.

  • J. Ram Ray

    Dr. Mead by and large is a true scholar and a profound thinker, but somehow he buys into Fox News’ talking points when it comes to President Obama and ObamaCare. The major health care issue few thinkers address is the American religion that free markets are the best solution; because of overwhelming evidence to the contracy, no amount of repetition can make this lie true! Other issues few thinkers, except leading policy experts such as Dr. Berwick and Dr. Reinhardt address, are the American allergy to death, an unrealistic notion that every available treatment should be exercised regardless of cost-benefit considerations, any finally, the false and stupid notion that 93-year old grandma should be kept alive for two more weeks in a vegetative stage, even if costs $100,000 to the taxpayers – and Big Medicine is only too happy to oblige because that’s where the profits are!

  • thibaud

    Gene #74: two reasons I keep bringing up the absolutely central, and I agree, hidden in plain view, fact that this whole brouhaha was the result of Wyle G.O.P. Coyote’s clever little ACME bomb blowing up in his face are

    1) it shows how completely cynical the GOP is on this issue, and

    2) it underscores again that 20-25% of those who tell pollsters they opposed ACA did so and do so BECAUSE OF THE MANDATE – ie because it’s a stupid patch on a broken system that avoids real and substantial reform.

    Re. #1, the GOP’s duplicity, like you I’ve only recently learned about the Heritage authorship.

    It’s such a completely cynical and outlandish episode – it really is like signing a non-aggression pact one week and then invading with 4 million troops the next – that it begs the question of how deeply is the GOP in the pocket of the health insurance pimps.

    This stinks to high heaven. Much more buried beneath the surface here.

  • John Mainhart

    I fail to see how Professor Meade can say that the law was passed by Cogress when deceitful practices of manipulation by Congress and our President were used to get it passed.
    In addition this argument about the commerce clause and the right to tax seems like the argument about what “is ” “is”.

    If you are given almost unlimited power to tax you can merely expand the definition of commerce by making the people do what you want them to do by a tax. Besides as I understand the ruling only the Chief Justice in cluded the commerce clause in his analysis.

    If you violate the spirit of the constitution which obviously produced a limited Government by encouraging our people to expand its already overreaching role through taxation, you end up with a pure Supreme Court “your words” ruling over a country which has lost its values.

  • Glen

    This post represents a new low for Via Media and Professor Mead. Frankly, you should have stopped writing upon the realization that you are “not enough of a constitutional scholar to have an opinion worth sharing.” If you possessed even a basic working knowledge of American constitutional history, you would have understood why it is impossible to say that “all nine justices vote[d] with their legal convictions rather than their partisan interests.”

    It has since become clear that Chief Justice John Roberts initially intended to strike down the mandate and then changed his mind not because of legal considerations, but in order to protect his own and the Court’s reputation against attacks by those who would have been angered by a ruling striking down the mandate. Indeed, it is precisely this act of so-called “judicial statesmanship” which you so highly praise. But if fear of criticism by hostile politicians and pundits can deflect the Chief Justice from doing his duty, then we are left with nothing but a “constitution that only works when the good guys are in control.”

© The American Interest LLC 2005-2017 About Us Masthead Submissions Advertise Customer Service
We are a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for us to earn fees by linking to and affiliated sites.