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View Diary: Why Obama: To fight for progressive values (128 comments)

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  •  One place Roberts Outsmarted Himself is.... (11+ / 0-)

    ...by upholding the ACA under the taxing power, he thereby rendered the holding on the limits of the commerce clause vulnerable to a court with one less conservative justice treating that aspect of the opinion as dicta (dicta are parts of a written SCOTUS decision that are unnecessary to the foundation of the result actually reached, and therefore merely in effect, commentary rather than binding precedent).   The conservative wing of the court has used this tactic frequently over the past 30 years to incrementally chip away at decisions off previous more liberal SCOTUS decisions.

    This is yet one more reason the 2012 Presidential election is so important, as will be 2016: to strangle Roberts "incremental radicalism" in the crib via SCOTUS appointments.  

    •  There's no way around that (11+ / 0-)

      Ginsburg said this in her concurrence.  He has a discussion of how it's supposedly not Dicta, it it was in the part of the decision that he wrote for himself alone.  It can still be important, though, because Roberts is right in a sense as he said in III.D that the CC analysis is logically prior.

      Where it's outclevered, and consistent with being dicta, every concern he had with commerce clause "expansion" and broad federal power (dread broccoli), somehow stopped mattering where the text gave even less room for manoeuver.  Congress regulate anything it wants if it imposes penalties for noncompliance, as long as it relates to other commercial regulations.  Sounds a lot like the "substantial effects" test and the NP clause.

      Difficult, difficult, lemon difficult.

      by Loge on Sun Jul 01, 2012 at 08:44:29 AM PDT

      [ Parent ]

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