Skip to main content

Obama and Roberts
Upholding ACA, laying groundwork to strike down New Deal

On a happy day for many of us, where the Affordable Care Act was upheld in a 5-4 decision (PDF) authored by Chief Justice John Roberts, there is a dark cloud attached. The Chief Justice accepted the federal government's argument that Congress had exercised its taxing power in enacting the mandate. But rather than being a judicial minimalist and deciding only those constitutional questions that must be decided, the Roberts Court bulled on to decide issues that need not have been addressed—whether the mandate exceeded the Congress' Commerce and Necessary and Proper power.

And the Roberts opinion on the scope of the national government's power to address national problems is a shot across the bow to the Supreme Court's New Deal jurisprudence that underpins our modern national government.

(Continue reading below the fold)

In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples’ representatives in both the States and the Federal Government. [...]THE CHIEF JUSTICE’s Commerce Clause opinion [...] bear[s] a disquieting resemblance to those long-overruled decisions. Ultimately, the Court upholds the individual mandate as a proper exercise of Congress’ power to tax and spend“ for the . . . general Welfare of the United States.” [...] I concur in that determination, which makes THE CHIEF JUSTICE’s Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion.12 [Emphasis supplied.] —Justice Ruth Bader Ginsburg
Sadly, the five conservatives of the Roberts Court have embraced the Constitution in Exile. Chief Justice Roberts wrote, joined by the four other conservative justices, that:
As our jurisprudence under the Necessary and ProperClause has developed, we have been very deferential to Congress’s determination that a regulation is “necessary.”We have thus upheld laws that are “‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’” Comstock, 560 U. S., at _ (slip op., at 5) (quoting McCulloch, supra, at 413, 418). But we have also carried out our responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution. Such laws, which are not “consist[ent] withthe letter and spirit of the constitution,” McCulloch, supra, at 421, are not “proper [means] for carrying into Execution” Congress’s enumerated powers. Rather, they are, “in the words of The Federalist, ‘merely acts of usurpation’ which ‘deserve to be treated as such.’” Printz v. United States, 521 U. S. 898, 924 (1997) (alterations omitted) (quoting The Federalist No. 33, at 204 (A. Hamilton)); see also New York, 505 U. S., at 177; Comstock, supra, at _ (slip op., at 5) (KENNEDY, J., concurring in judgment) (“It is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause . . .”).

Applying these principles, the individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. For example, we have upheld provisions permitting continued confinement of those already in federal custody when they could not be safely released, Comstock, supra, at _ (slip op., at 1–2); criminalizing bribes involving organizations receiving federal funds, Sabri v. United States, 541 U. S. 600, 602, 605 (2004); and tolling state statutes of limitations while cases are pending in federal court, Jinks v. Richland County, 538 U. S. 456, 459, 462 (2003). The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power.

This is wholesale nonsense, both as law and fact. The mandate was not enacted in order to create activity that can be regulated. It was enacted, wisely or not, to make more effective the proper exercise of the Commerce power to regulate the health care and health insurance markets. It was a classic exercise of the Congress' Necessary and Proper power. The Roberts five claim that "such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority." Quite the opposite. This view constitutes a substantial contraction of federal authority. It strikes at our conception of our federal government and the New Deal.

In her opinion, Justice Ginsburg explains what is wrong with what the Roberts five are arguing:

[W]e owe a large measure of respect to Congress when it frames and enacts economic and social legislation.See Raich, 545 U. S., at 17. See also Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717, 729 (1984) (“[S]trong deference [is] accorded legislation in the field of national economic policy.”); Hodel v. Indiana, 452 U. S. 314, 326 (1981) (“This [C]ourt will certainly not substitute its judgment for that of Congress unless the relation of the subject to interstate commerce and its effect upon it are clearly non-existent.” (internal quotation marks omitted)). When appraising such legislation, we ask only (1) whether Congress had a “rational basis” for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a “reasonable connection between the regulatory means selected and the asserted ends.” Id., at 323–324. See also Raich, 545 U. S., at 22; Lopez, 514 U. S., at 557; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 277 (1981); Katzenbach v. McClung, 379 U. S. 294, 303 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 258 (1964); United States v. Carolene Products Co., 304 U. S. 144, 152–153 (1938). In answering these questions, we presume the statute under review is constitutional and may strike it down only on a “plain showing”that Congress acted irrationally. United States v. Morrison, 529 U. S. 598, 607 (2000).

Straightforward application of these principles would require the Court to hold that the minimum coverage provision is proper Commerce Clause legislation. Beyond dispute, Congress had a rational basis for concluding that the uninsured, as a class, substantially affect interstate commerce. Those without insurance consume billions of dollars of health-care products and services each year. See supra, at 5. Those goods are produced, sold, and delivered largely by national and regional companies who routinely transact business across state lines. The uninsured also cross state lines to receive care. Some have medical emergencies while away from home. Others, when sick, go to a neighboring State that provides better care for those who have not prepaid for care.[...]

Rather than evaluating the constitutionality of the minimum coverage provision in the manner established by our precedents, THE CHIEF JUSTICE relies on a newly minted constitutional doctrine. The commerce power does not, THE CHIEF JUSTICE announces, permit Congress to “compe[l] individuals to become active in commerce by purchasing a product.” Ante, at 20 (emphasis deleted).

THE CHIEF JUSTICE’s novel constraint on Congress’ commerce power gains no force from our precedent and for that reason alone warrants disapprobation.

With regard to the Necessary and Proper power, Justice Ginsburg wrote (joined by the 3 other moderate Justices):
For the reasons explained above, the minimum coverage provision is valid Commerce Clause legislation. See supra, Part II. When viewed as a component of the entire ACA, the provision’s constitutionality becomes even plainer.

The Necessary and Proper Clause “empowers Congress to enact laws in effectuation of its [commerce] powe[r] that are not within its authority to enact in isolation.” Raich, 545 U. S., at 39 (SCALIA, J., concurring in judgment). Hence, “[a] complex regulatory program . . . can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal.” Indiana, 452 U. S., at 329, n. 17. “It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.” Ibid. (collecting cases). See also Raich, 545 U. S., at 24–25 (A challenged statutory provision fits within Congress’ commerce authority if it is an “essential par[t] of a larger regulation of economic activity,”such that, in the absence of the provision, “the regulatory scheme could be undercut.” (quoting Lopez, 514 U. S., at 561)); Raich, 545 U. S., at 37 (SCALIA, J., concurring in judgment) (“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power.” (citation omitted)).

Remarkably, the Roberts five cited federalism concerns in denying the Congress its long established Commerce and Necessary and Proper power. As Justice Ginsburg notes, the chief justice makes his constitutional argument out of whole cloth:
THE CHIEF JUSTICE urges, because the command “undermine[s] the structure of government established by the Constitution.” Ante, at 28. If long on hetoric, THE CHIEF JUSTICE’s argument is short on substance. THE CHIEF JUSTICE cites only two cases in which this Court concluded that a federal statute impermissibly transgressed the Constitution’s boundary between state and federal authority: Printz v. United States, 521 U. S. 898 (1997), and New York v. United States, 505 U. S. 144 (1992). See ante, at 29. The statutes at issue in both cases, however, compelled state officials to act on the Federal Government’s behalf. 521 U. S., at 925–933 (holding unconstitutional a statute obligating state law enforcement officers to implement a federal gun-control law); New York, 505 U. S., at 176–177 (striking down a statute requiring state legislators to pass regulations pursuant to Congress’ instructions). “[Federal] laws conscripting state officers,” the Court reasoned, “violate state sovereignty and are thus not in accord with the Constitution.” Printz, 521 U. S., at 925, 935; New York, 505 U. S., at 176.

The minimum coverage provision, in contrast, acts “directly upon individuals, without employing the States as intermediaries.” New York, 505 U. S., at 164. The provision is thus entirely consistent with the Constitution’s design. See Printz, 521 U. S., at 920 (“[T]he Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” (internal quotation marks omitted)).

Lacking case law support for his holding, THE CHIEF JUSTICE nevertheless declares the minimum coverage provision not “proper” because it is less “narrow in scope” than other laws this Court has upheld under the Necessary and Proper Clause. Ante, at 29 (citing United States v. Comstock, 560 U. S. _ (2010); Sabri v. United States, 541 U. S. 600 (2004); Jinks v. Richland County, 538 U. S. 456 (2003)). THE CHIEF JUSTICE’s reliance on cases in which this Court has affirmed Congress’ “broad authority to enact federal legislation” under the Necessary and Proper Clause, Comstock, 560 U. S., at _ (slip op., at 5), is underwhelming.

Nor does THE CHIEF JUSTICE pause to explain why the power to direct either the purchase of health insurance or, alternatively, the payment of a penalty collectible as a tax is more far-reaching than other implied powers this Court has found meet under the Necessary and Proper Clause.These powers include the power to enact criminal laws, see, e.g., United States v. Fox, 95 U. S. 670, 672 (1878); the power to imprison, including civil imprisonment, see, e.g., Comstock, 560 U. S., at _ (slip op., at 1); and the power to create a national bank, see McCulloch, 4 Wheat., at 425. See also Jinks, 538 U. S., at 463 (affirming Congress’ power to alter the way a state law is applied in state court, where the alteration “promotes fair and efficient operation of the federal courts”).10

In failing to explain why the individual mandate threatens our constitutional order, THE CHIEF JUSTICE disserves future courts. How is a judge to decide, when ruling on the constitutionality of a federal statute, whether Congress employed an “independent power,” ante, at 28, or merely a “derivative” one, ante, at 29. Whether the power used is “substantive,” ante, at 30, or just “incidental,” ante, at 29? The instruction THE CHIEF JUSTICE, in effect, provides lower courts: You will know it when you see it.

Justice Ginsburg is much too sanguine here. The Roberts five will tell them in later cases. The undoing of the New Deal must begin somewhere. This is not the end of the Roberts five assault on the New Deal. It is only the beginning. Justice Ginsburg writes:
In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples’ representatives in both the States and the Federal Government. See, e.g., Carter Coal Co., 298 U. S., at 303–304, 309–310; Dagenhart, 247 U. S., at 276–277; Lochner v. New York, 198 U. S. 45, 64 (1905).

THE CHIEF JUSTICE’s Commerce Clause opinion, and even more so the joint dissenters’ reasoning, see post, at 4–16, bear a disquieting resemblance to those long-overruled decisions. Ultimately, the Court upholds the individual mandate as a proper exercise of Congress’ power to tax and spend“ for the . . . general Welfare of the United States.” Art. I, §8, cl. 1; ante, at 43–44. I concur in that determination, which makes THE CHIEF JUSTICE’s Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion.12 [Emphasis supplied.[

There is no satisfying response, but there is an obvious one—the Roberts five seek to dismantle the New Deal jurisprudence. With no need to even opine on the Commerce and Necessary and Proper question, Chief Justice Roberts has written an unfathomable opinion whose motive can only be the laying of groundwork—the groundwork to undo the New Deal.

Now, more than ever, we see the Roberts five agenda. We must reelect President Obama in order to stop it.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

    •  Indeed (17+ / 0-)

      Scalia and Kennedy must be replaced ASAP.

      Republicans are far more socialist than Democrats. Just because they want to redistribute the wealth upwards does not make it any better.

      by MrAnon on Thu Jun 28, 2012 at 11:22:05 AM PDT

      [ Parent ]

    •  The best tweet all day (2+ / 0-)
      Recommended by:
      Jeff in CA, dedwords

      said the the commerce clause stuff was  irrelevent - since the course of jurisprudence on it will depend entirely on who the next appointment will be.

      The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

      by fladem on Thu Jun 28, 2012 at 11:38:49 AM PDT

      [ Parent ]

      •  Yes, and it is dicta only. (2+ / 0-)
        Recommended by:
        floydgrant, happymisanthropy

        I trust it will bind future courts about as much as Scalia's political diatribe in the immigration case. Roberts did prove himself to be a proper jurist today, and I can accept this part of the opinion (being mostly if not entirely meaningless).

      •  doesn't ALL of the new deal (0+ / 0-)

        fall undre "for the general welfare?" I mean fuck them

        http://www.actblue.com/page/accountabilitynow If the dnc dscc or dccc send you mailers, send that link back to them and tell them you won't send money to people who defend democrats who betray progressive principals! up yours!

        by daeros on Fri Jun 29, 2012 at 11:38:24 AM PDT

        [ Parent ]

    •  Roberts' justification for reaching the (4+ / 0-)

      Commerce Clause argument was that "logically" he had to reach that argument first because

      1. the Commerce Clause was the government's "primary" argument;
      2. the statute on its face reads like a command, rather than a tax; and
      3. it was only  necessary to read it like a tax after concluding that the command was unconstitutional.

      But that's a pretext, I think, for doing exactly what you say he's doing: sending a warning shot across the bow.  He claims, in his tax power analysis, to be acting out of deference to the legislature in construing a statute in a manner that will save it. But he could have exercised that deference and exercised some judicial economy by not reaching issues that weren't necesssary to decide the validity of the statute.  

      Having said all that, I'm still grateful for his vote to uphold the statute, whatever his motives. Will Roberts become the new Souter?  I don't think so.  Which is why re-electing President Obama remains so critical.

  •  So Roberts (0+ / 0-)

    Is now the new "swing justice"?

    Republicans are far more socialist than Democrats. Just because they want to redistribute the wealth upwards does not make it any better.

    by MrAnon on Thu Jun 28, 2012 at 11:18:11 AM PDT

  •  Ginsburg: ‘Congress Followed Massachusetts (8+ / 0-)

    Justice Ginsburg: ‘Congress Followed Massachusetts’ On Individual Mandate

    In her concurring opinion to uphold ‘Obamacare’ Thursday, Justice Ruth Bader Ginsburg pointed out that Congress, in creating the individual mandate, was following the lead of Massachusetts.

    It’s an apparent jab at Mitt Romney, who enacted the same provision as governor in 2006, but has vowed to repeal the Affordable Care Act if elected president.

    (snip)
    Massachusetts, Congress was told, cracked the adverse selection problem. By requiring most residents to obtain insurance … the Commonwealth ensured that insurers would not be left with only the sick as customers. As a result, federal lawmakers observed, Massachusetts succeeded where other States had failed.

    In cou­pling the minimum coverage provision with guaranteed­ issue and community-rating prescriptions, Congress followed Massachusetts’ lead.

    http://livewire.talkingpointsmemo.com/...

  •  He's giving conservative judicial activists (37+ / 0-)

    the roadmap for how to give him what he needs to dismantle the New Deal and the modern regulatory regime.

    He laid it all out right there. "I've got the votes, here is the reasoning, send me the case."

  •  Yes, I noticed that also. (10+ / 0-)

    Justice Ginsburg's Warning About The ACA Opinion: Is There a Lochner lurking?

    Still, Roberts may not go as far as the other 4.  Time will tell.

    I'm from the Elizabeth Warren and Darcy Burner Wing of the Democratic Party!

    by TomP on Thu Jun 28, 2012 at 11:19:01 AM PDT

  •  Very interesting (9+ / 0-)

    Thanks for this....

    I agree we absolutely MUST see this court in Moderate hands. Too much is riding on it.

    "'Touch it dude' - President Barack Obama"

    by volleyboy1 on Thu Jun 28, 2012 at 11:19:42 AM PDT

  •  There's always a catch with these guys! :/ (7+ / 0-)
    •  They MUST assert the illegitimacy... (1+ / 0-)
      Recommended by:
      wasatch

      ...of The Commons. Otherwise they concede the justification of Government powerful enough to protect the relatively powerless. Which is anyone who can't underwrite a vanity candidate deep into Presidential Primary.

      When you are right you cannot be too radical; when you are wrong, you cannot be too conservative. --Martin Luther King Jr.

      by Egalitare on Thu Jun 28, 2012 at 11:34:27 AM PDT

      [ Parent ]

  •  One comforting thought. If Obama is able to (3+ / 0-)
    Recommended by:
    Mayfly, Blicero, llywrch

    replace one of the conservatives in a second term, the new majority won't have to worry about that "starry decisiss" thingy anymore.  Not with the way the Roberts curt has ignored it.

    Rmoney & The Republicans - We've should've killed GM, not bin Laden.

    by filby on Thu Jun 28, 2012 at 11:19:56 AM PDT

  •  "It's okay for the GOP (1+ / 0-)
    Recommended by:
    GRLionsFan

    to start pretending that they like Romneycare now"

    - JUSTICE JOHN ROBERTS

    Chicago--Proud Home of the 1908 World Series Champion Chicago Cubs

    by Jeff Y on Thu Jun 28, 2012 at 11:21:03 AM PDT

  •  You know that you and I have disagreed (10+ / 0-)

    over the Commerce + Necessary & Proper argument; I am happy with the resolution Roberts found.  I agree with you that it was improper and bizarre to even get into the Commerce Clause argument at all here; if the Court is to engage in Constitutional Avoidance, shouldn't that mean AVOIDANCE rather than "discussing it anyway"?

    In any event, (1) everything said about the Commerce Clause is dicta and (2) now the positions shift on the "regulation of inactivity" argument.  We argue that this is an unusual case and that therefore the "holding" (or semi-holding, or woulda-been whatever it is) is limited to very unusual circumstances.  They argue that it has a broader implication.

    What it does tell us is what the decision would have looked like had the government not made -- or had finished the job of completely sabotaging -- the "mandate is really a tax" argument.  I'm glad they got enough of a leg up for Roberts to push them over the hurdle, because this is not the Commerce Clause case I've wanted, and this was not the time for it even if it had been.

    Pro-Occupy Democratic Candidate for California State Senate, District 29 & Occupy OC Civic Liaison.

    "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

    by Seneca Doane on Thu Jun 28, 2012 at 11:22:37 AM PDT

    •  Huh? The Obama admin argued on grounds (0+ / 0-)

      of the Commerce Clause.  Luckily, they also argued the mandate was a tax.

      Read Roberts decision.. as far as I can tell (and it is somewhat Greek to me) Roberts had to first consider the Commerce Clause and, rightly in my opinion, decided it was not covered.  He then fell back to consideration of the mandate as a tax.

  •  You nailed it... (8+ / 0-)

    Roberts upheld the ACA on taxing grounds purely to preserve the legitimacy of the court.

    Slightly off topic, it was depressing to see Kagan (and Breyer) buy the Medicaid expansion/coercion argument.

    Ginsburg gets it right and as SCOTUSblog comments; This is the first time (as far as I know) that the Court has actually found a Spending Clause condition unconstitutionally coercive.

    No System of Justice Can Rise Above the Ethics of Those Who Administer It. (Wickersham Commission 1929)

    by No Exit on Thu Jun 28, 2012 at 11:22:56 AM PDT

  •  I think saying that this was a plot (5+ / 0-)

    by Roberts to ditch the New Deal is a bit alarmist. Particularly when referring to them as the "Roberts Five", as if Ruth Bader Ginsberg and Sonia Sotomayor are itching to rule Social Security unconstitutional...

  •  However (3+ / 0-)
    Recommended by:
    Magnifico, ranton, wasatch

    He'll need a secure 5 vote majority to do so.  If Obama wins re-election, and either Scalia or Kennedy go, that's done.

  •  after reading the opinion (10+ / 0-)

    I think you are correct.  Yes, I'm glad that the ACA was upheld.  But I still think Roberts attempted to maintain a facade of judicial independence while at the same time providing dicta that will be useful to Republicans during the 2012 election and in the future to lay the groundwork to overturn legislation that was found to be Constitutional under the Commerce Clause.  This legislation includes the Civil Rights Act.  

    If there was ever a time in which our civil rights hang in the balance of a general election, it is now.

    Feminism is the radical notion that women are people. ~Cheris Kramarae and Paula Treichler

    by Tchrldy on Thu Jun 28, 2012 at 11:24:20 AM PDT

  •  Roberts being off script (5+ / 0-)

    re: his reason for the majority opinion seems to be dicta.  

    As to the current conservative majority, anything goes -- including stare decisis.  Until someone in the "majority" dies or retires, I have zero confidence in continuity.  Sadly, I'll be dead by the time there might be either a sane or completely insane court which provides predictability.

    Lovely job today on the radio -- and I mean everyone and special kudos to winkk for the tech stuff that I think all of you other folks fuck up.  :-D

    Vi er alle norske " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Thu Jun 28, 2012 at 11:25:11 AM PDT

  •  They were for it before they were against it. (2+ / 0-)
    Recommended by:
    wasatch, apimomfan2

    Good background here by Ezra Klein in last week's The New Yorker.

  •  But, doesn't this ruling also UPHOLD the (3+ / 0-)
    Recommended by:
    Alice Olson, Jake McIntyre, annecros

    premises of Social Security and Medicare through the tax provisions?

    "Congress can't make you buy broccoli, but they can tax you if you do NOT buy broccoli"

    --A line from Benen or someone like that on Twitter

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Thu Jun 28, 2012 at 11:25:39 AM PDT

  •  The Medicaid portion of the opinion may be even (9+ / 0-)

    worse.  States can reject the Medicaid expansion and still keep all of the funds they currently get from the federal government.  And Breyer and Kagan signed on to it!

    Which leads me to wonder whether they struck a deal with Roberts.

    “The country tried everything Romney says, and it brought the economy to the brink of collapse”

    by Paleo on Thu Jun 28, 2012 at 11:26:14 AM PDT

    •  Yep (3+ / 0-)

      I have something in the que but I have to recheck some facts.

    •  Am I misunderstanding this? (2+ / 0-)
      Recommended by:
      Armando, Paleo
      Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.
      Doesn't it mean: the government can withhold new Medicaid funding contingent on implementation of ACA; but they cannot withhold hold all Medicaid funding?

      Barack Obama is not a secret Marxist class warrior who wants to redistribute wealth in America. But I'll still vote for him, anyway.

      by looty on Thu Jun 28, 2012 at 11:38:38 AM PDT

      [ Parent ]

      •  They didn't address the question of whether (1+ / 0-)
        Recommended by:
        looty

        the federal government can withhold a portion of the Medicaid funding.  This may open the door to the administration doing precisely that.  And then seeing what the court does.

        “The country tried everything Romney says, and it brought the economy to the brink of collapse”

        by Paleo on Thu Jun 28, 2012 at 11:42:26 AM PDT

        [ Parent ]

      •  My reading and others (1+ / 0-)
        Recommended by:
        looty

        are the same as yours looty. This means that there is a chance that wingnut states will not expand Medicaid under ACA.

        I'm truly sorry Man's dominion Has broken Nature's social union--Robert Burns

        by Eric Blair on Thu Jun 28, 2012 at 12:06:57 PM PDT

        [ Parent ]

      •  Such a weird finding on Medicaid (2+ / 0-)
        Recommended by:
        looty, daeros

        Am I the only one who thinks it doesn't really make sense?  The way I read this, Congress could actually just:

        1. Totally defund Medicaid
        2. Increase the Medicaid funding tied to the ACA expansion by an equivalent amount
        3. Hey presto, now it's constitutional!

        Whether funds are "new" or not basically boils down to semantics.  There's no fundamental difference there.  Or at least, what difference there is is so easily addressed that there's no real point to making the distinction at all.

        Am I nuts here, or did 7 supreme court justices really make an argument that shoddy?

  •  Thanks for this cogent review, Armando. (7+ / 0-)

    I am appalled at the sweeping congratulations for Roberts' "liberal" stance. It is a tinderkeg instead, as you correctly illustrate.

  •  More from Roberts' opinion (6+ / 0-)

    ... constraining the commerce clause by cribbing from Randy Barnett's "activity/inactivity" nonsense:

    Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”
    That's an open invitation to future attacks on federal legislation, and to frame the attack as "Congress is regulating what we don't do, and not just what we do."

    Please help to fight hunger with a donation to Feeding America.

    by MJB on Thu Jun 28, 2012 at 11:27:12 AM PDT

  •  I don't fully buy this. (5+ / 0-)

    Not that I know much about it, so let's get that out of the way first.  Two things:

    1) It's hard to imagine a bigger case that this one, so the idea that Roberts would let this through because he's saving his powder for the future seems implausible.  What's in the future?

    2) On the actual substance, Roberts' key paragraph vs. Ginsburg's rebuttal, I have some sympathy for Roberts.  Insurance has always been a state-regulated sector; even the smallest of our states has a functioning insurance industry and regulatory framework; in any given swath of time, most people don't change states.  At best (for us), the mandate is at the margins of what the federal government can legitimately do, not so much to people but to states.  

    You don't have to be a nutcake to think that federalism is real, and that our central government operates under some constraints that, say, the French government doesn't operate under.  

    Romney '12: Bully for America!

    by Rich in PA on Thu Jun 28, 2012 at 11:28:18 AM PDT

    •  You're wrong on the facts (0+ / 0-)

      the insurance industry has been regulated at the federal level forever.

      •  How so? (0+ / 0-)

        I've heard of state insurance regulators but I've never heard of federal insurance regulators.  What am I missing?

        Romney '12: Bully for America!

        by Rich in PA on Thu Jun 28, 2012 at 11:46:29 AM PDT

        [ Parent ]

        •  See this article @p.687 (0+ / 0-)

          http://www.law.fsu.edu/...

          But like I said, this is something I knew nothing about until five minutes ago, and I know almost nothing about now, so it's not a position I'm going to argue very strenuously!

          Romney '12: Bully for America!

          by Rich in PA on Thu Jun 28, 2012 at 11:49:37 AM PDT

          [ Parent ]

          •  did you read the pdf? (0+ / 0-)

            states can regulate insurance only to the extent allowed by federal law.  they have zero independent authority...

            No System of Justice Can Rise Above the Ethics of Those Who Administer It. (Wickersham Commission 1929)

            by No Exit on Thu Jun 28, 2012 at 12:14:58 PM PDT

            [ Parent ]

            •  Where does it say that? (1+ / 0-)
              Recommended by:
              wsexson

              At 629-30 it cites Paul v Virginia (1868), "which established state supremacy over insurance."  And see p631--so entrenched was the Court's claim that insurance was a state function (by constitutional rather than specific legal delegation) that some people wanted to amend the Constitution to federalize it!  There may be something past that page but before p.687 that negates all of this, which I haven't read.

              Romney '12: Bully for America!

              by Rich in PA on Thu Jun 28, 2012 at 12:44:46 PM PDT

              [ Parent ]

              •  Insurance Clearly Affects Interstate Commerce (0+ / 0-)

                Thus Congress, if it chose, could completely pre-empt the field and establish a comprehensive scheme pursuant to the commerce clause.  That it has chosen not to do so is in part due to a longstanding history of State regulation of insurance.

                See;

                March 9, 1945, the McCarran–Ferguson Act was passed by Congress. Among other things, it:

                1. partially exempts insurance companies from the federal anti-trust legislation that applies to most businesses

                2. allows for the state regulation of insurance

                3. allows states to establish mandatory licensing requirements

                4. preserves certain state laws of insurance.

                No System of Justice Can Rise Above the Ethics of Those Who Administer It. (Wickersham Commission 1929)

                by No Exit on Fri Jun 29, 2012 at 09:21:43 AM PDT

                [ Parent ]

  •  Well, no. The Roberts opinion on commerce clause (9+ / 0-)

    is non-binding as precedent anyway, as it was not necessary for issue to be reached to decide the case.

    My own belief is that Roberts was genuinely appalled at the idea that such a massive piece of legislation should be entirely thrown out.  He didn't want to have this define his place in constitutional history.  So he switched sides (hence Scalia's repeated mistaken use of "dissent" when he's talking about Justice Ginzburg's concurring opinion.  He wanted to uphold it on the narrowest possible ground however.

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Thu Jun 28, 2012 at 11:29:05 AM PDT

  •  Well, I agree with him with a caveat: (3+ / 0-)
    Recommended by:
    divineorder, CanyonWren, floydgrant
    The commerce power does not, THE CHIEF JUSTICE announces, permit Congress to “compe[l] individuals to become active in commerce by purchasing a product.”
    A privately health product is my caveat. I was in the drumline on this one back in the days of when people were saying it'd never happen, that it would open the door to grander schemes of men who wish back in the Gilded Age.

    The commerce power should not force people into purchasing privately-generated goods and services without a government option, otherwise you begin to tip-toe toward a corporate state.

    Unless there is a government option, the commerce clause is their trojan horse to dismantle many a New Deal ideal.

    And here we are.

    Texas is Texas, you know. The second you think you got it figured out, it will switch on you. Just ask Rick Perry in 2012.

    by Patience John on Thu Jun 28, 2012 at 11:30:12 AM PDT

  •  One of the more entertaining (1+ / 0-)
    Recommended by:
    CanyonWren

    thoughts I've seen today is the suggestion that, if the penalty is actually a tax, a President Romney might simply instruct the IRS not to collect it.

    •  The law already forbids the IRS to enforce (0+ / 0-)

      the collection of the penalty/tax, or to exercise criminal or civil methods to penalize a taxpayer.

      Never before in all our history have these forces been so united against one candidate... They are unanimous in their hate for me. And I welcome their hatred.-FDR

      by Jeff in CA on Thu Jun 28, 2012 at 12:34:32 PM PDT

      [ Parent ]

  •  trojan horse. nt (1+ / 0-)
    Recommended by:
    apimomfan2

    "Senator, you have the vote of every thinking person!" "That's not enough Madam, I need a majority." A. Stephenson

    by CoExistNow on Thu Jun 28, 2012 at 11:31:01 AM PDT

  •  Oh please.... (6+ / 0-)

    If he wanted to begin dismantling the New Deal, he could have called b.s. on the Commerce Clause argument like the gang of 4 nitwits, included some language that showed other legislation passed under this precedent would be up for reconsideration, struck down ACA and putting a blow to Obama's re-elect chances....the man with the power to flip the court's conservative bent.

    No, he ruled it was tax because it is a tax. It functions the same way. He gave wide discretion to elected officials and the public to have (or not have) the health care laws it chooses.

    •  Did you read the opinion? (4+ / 0-)
      Recommended by:
      oculus, Rimjob, apimomfan2, floydgrant

      "he could have called b.s. on the Commerce Clause argument like the gang of 4 nitwits, "

      That is what he did. You are wrong.

      •  He's also signalling how to argue for New Deal.... (2+ / 0-)
        Recommended by:
        gph11, daeros

        programs. FICA tax, anyone?

        If he was serious about using this as a precedent for dismantling the ND, he could have ripped the ACA from its ass to its appetite and overturned it wholesale, Anthony Kennedy-style. That would have been a real shot across the bow. It would have been open season on SS, Medicare, etc.

        Instead, he made a very rational argument for its legality....Congress has legally mandated such requirements before and there is nothing unique about this case that would preclude them from doing it again.

      •  Geez Armando (0+ / 0-)

        Don't jump all over him...you know exactly what he meant.

  •  Even Samuel Johnson's dictionary (3+ / 0-)
    Recommended by:
    Armando, Alice Olson, Jeff in CA

    was cited by CJ Roberts.  Talk about "originalism."  

    •  Constitutional scholars' view of that dictionary? (1+ / 0-)
      Recommended by:
      oculus

      Do constitutional scholars generally agree with American lexicographer Joseph Emerson Worcester, who wrote:

      "The Dictionary has also played its part in the law, especially in the United States. Legislators are much occupied with ascertaining 'first meanings', with trying to secure the literal sense of their predecessors' legislation ... Often it is a matter of historicizing language: to understand a law, you need to understand what its terminology meant to its original architects ... as long as the American Constitution remains intact, Johnson's Dictionary will have a role to play in American law."
      Source: Hitchings, Henry (2005). Dr Johnson's Dictionary: The Extraordinary Story of the Book that Defined the World. London: John Murray. ISBN 0-7195-6631-2 [US edition: Hitchings, Henry (2005). Defining the World: the extraordinary story of Dr. Johnson's Dictionary. New York: Farrar, Straus and Giroux]

      Never before in all our history have these forces been so united against one candidate... They are unanimous in their hate for me. And I welcome their hatred.-FDR

      by Jeff in CA on Thu Jun 28, 2012 at 12:58:56 PM PDT

      [ Parent ]

  •  Boy (1+ / 0-)
    Recommended by:
    Armando

    You are a barrel of sunshine today.

  •  It had to come at a price. (3+ / 0-)
    Recommended by:
    looty, grover, MKinTN

    And he made it very expensive. My calculation is Roberts was thinking "legacy" and he did not want to throw a firebomb so fiery and large that it would have made Bush v. Gore look like a Fourth of July sparkler. He came that close to pulling the pin. But the conflagration would have been too huge, and he just couldn't.

    I very much thought he would pull the pin, as this Court has exhibited little resembling judicial restraint.

    As you, Justice Ginsberg and most legal experts have pointed out, the mandate was supportable under the Commerce Clause. C.J. Roberts says it was not and thereby put a very large price tag on the victory.

    All we can do now is circumscribe his power to collect on that price, by electing a Congress that is truly controlled by Democrats. Real ones, not the kind who will join with Boehner on a contempt citation against A.G. Holder.

    In any case, we live to fight another day.

  •  I'm a little confused, perhaps you can help. (0+ / 0-)

    CJ Roberts' Commerce Clause interpretation was in Part III-A of his opinion, but according to the syllabus, nobody joined that Part; he was writing only for himself.  The other four wrote a dissent from the whole thing.

    So how do you conclude that there were 5 Justices who agreed on the Commerce Clause interpretation?

    I know you believe you understood what you think I said, but I'm not sure you realize that what you heard is not what I meant. -- S.I. Hayakawa

    by tapu dali on Thu Jun 28, 2012 at 11:38:45 AM PDT

  •  What I find shocking (3+ / 0-)
    Recommended by:
    divineorder, Jeff in CA, apimomfan2

    is that there is even a raging debate about having a collective insurance system to provide basic healthcare for all. Every other advanced western democracy has this in place already.

    It is troubling that Roberts felt it was necessary to comment so much about the commerce clause. He does appear to be trying to limit the power of congress to regulate commerce.

    Seems like he took the easy way out on this decision by considering it a tax and felt it was necessary to point out that this would be an abuse of congressional authority to regulate commerce.

    IANAL but in my simple minded reading of this, that implies he is very anti-regulation and plans to restrict regulation of commerce wherever he can in future decisions.

    You could be listening to Netroots Radio. "We are but temporary visitors on this planet. The microbes own this place" <- Me

    by yuriwho on Thu Jun 28, 2012 at 11:38:59 AM PDT

  •  Now teapartiers can RAGE (2+ / 0-)
    Recommended by:
    divineorder, oculus

    about being improperly taxed, but the right leaning Independents won't completely ditch Romney.

    ACA has allowed people of all political persuasions to stay alive that were having a really hard time staying alive rubbing up against insurance company profits.  I know I'm supposed to believe that Justices would never make such decisions based on how close to November they are made, but I have lost all faith in a benevolent Supreme Court.

    Roberts legacy? Keeping the door open to allow the country to return to Thunderdome.

  •  Did Roberts overrule any New Deal cases... (1+ / 0-)
    Recommended by:
    Alice Olson

    ... to get to his commerce clause result? If not, the ACA is pretty unique and Roberts commerce clause ruling can probably be distinguished into oblivion by later liberal judges.

    No snowflake in an avalanche ever feels responsible.

    by Magster on Thu Jun 28, 2012 at 11:40:17 AM PDT

    •  No (1+ / 0-)
      Recommended by:
      Magster

      Wickard v. Filburn still stands.  Which is the encouraging thing to take from the commerce clause portion of the decision.  He said that at least in that case, the farmer was doing an activity--growing wheat.  Here, the nonpurchasing consumer was strictly passive.

      “The country tried everything Romney says, and it brought the economy to the brink of collapse”

      by Paleo on Thu Jun 28, 2012 at 11:45:18 AM PDT

      [ Parent ]

  •  That's one big uterus (1+ / 0-)
    Recommended by:
    apimomfan2

    The court overturns Roe v Wade.

    Kansas and Utah ban abortion.

    So now California & Massachusetts have to.

    Commerce clause.

  •  Yep (0+ / 0-)

    We can see the camel's nose.

    50 states, 210 media market, 435 Congressional Districts, 3080 counties, 192,480 precincts

    by TarheelDem on Thu Jun 28, 2012 at 11:41:38 AM PDT

  •  Just for the record: It's Ginsburg. (0+ / 0-)

    No "e" in her surname.

    The good we secure for ourselves is precarious and uncertain, is floating in mid-air, until it is secured for all of us and incorporated into our common life. Jane Addams

    by Alice Olson on Thu Jun 28, 2012 at 11:44:30 AM PDT

  •  and, roberts just handed the wingers their (0+ / 0-)

    election raw meat!

    listening to the wackos on cspan and they are taking full advantage of the ignorance of the slow voter about what aca does and it has JUST become the chief political issue for november.

    watch the distortions and lies increase - listening to the tea party fools on cspan shows what is to come.

    mad michelle is batsh*tting all over cspan right now.

    i think this isn't a "political" victory - and it is going to be a big problem setting the record straight on this law for the uneducated voters that are protected by it.

    batsh*t is saying they have the job "1/3 done" (meaning they have the house - and they will use this down race!

    this may be a bigger problem than we realized between now and november.  the campaign now needs to start hitting hard with the campaign ads showing what is gained!

    omigod!  batsh*t is saying that the congress can now force ANYONE to buy anything they decide JUST because you breathe!

    wow.  just wow.  listen to the tea party freaks in the house to find out what the campaign is going to be about - and what we need to counter to protect the house and senate, as well as the white house!

    •  I believe that the Obama campaign and its (1+ / 0-)
      Recommended by:
      edrie

      surrogates in the SuperPac world can correct mis-understandings and educate people about the benefits of the ACA just as they have been so successful in getting people the truth about Bain Capital and Romney's so-called job creation skills. This is a victory for Obama, judicially, morally and politically. And having Roberts write for the majority is a boon.

      And I see no danger in the Commerce Clause dicta, none.

      The good we secure for ourselves is precarious and uncertain, is floating in mid-air, until it is secured for all of us and incorporated into our common life. Jane Addams

      by Alice Olson on Thu Jun 28, 2012 at 11:50:24 AM PDT

      [ Parent ]

  •  I sure would like to know how the (0+ / 0-)

    various opinions looked when they were circulated.  Obvivously Scalia couldn't get enough votes.  Did Roberts start from scratch or was the Commerce Clause portion of his opinion circulated as a stand alone.  

    Also, the whole "not a tax" for anti-injunction purposes but "is a tax" re the mandated makes the law look like an ass.  

  •  The dissent is all sour grapes (0+ / 0-)

    And very sophomoric.  And full of right-wing talking points...

    From the intro of the combined dissent:

    "The second question
    is whether the congressional power to tax and spend,
    U. S. Const., Art. I, §8, cl. 1, permits the conditioning of
    a State’s continued receipt of all funds under a massive
    state-administered federal welfare program
    upon its acceptance of an expansion to that program."

    *Bold is my emphasis

    "If that analysis is correct, the regulations and taxes will
    mean higher costs for insurance companies.  Higher costs
    may mean higher premiums for consumers, despite the
    Act’s goal of “lower[ing] health insurance premiums.”

    "As for the constitutional  power to tax and spend for
    the general welfare: The Court has long since expanded
    that beyond (what Madison thought it meant) taxing and
    spending for those aspects of the general welfare that were
    within the Federal Government’s enumerated powers,
    see  United States v.  Butler, 297 U. S. 1, 65–66 (1936).
    Thus, we now have sizable federal Departments devoted
    to subjects not mentioned  among Congress’ enumerated
    powers, and only marginally related to commerce: the Department of Education, the Department of Health and
    Human Services, the Department of Housing and Urban
    Development."

    *Bold is my emphasis

    Disgusting showing of the right wing corporatist Justices, but 100% expected.

    "Give me a lever long enough... and I shall move the world." - Archimedes

    by mconvente on Thu Jun 28, 2012 at 11:49:36 AM PDT

  •  I disagree. (2+ / 0-)
    Recommended by:
    lysias, gph11

    Roberts left himself plenty of room to not undo the New Deal by finding the distinction between the ACA and laws that were within the Commerce Clause and Necessary and Proper powers to be that the ACA includes the compulsion to engage in commerce. That distinction does not appear in precedent for the simple reason that it has never been tried before.

    If Roberts really wanted to signal the undoing of the New Deal he would have criticized Wickard, or at least its reasoning.  Haven't finished reading yet, but so far I don't see any such criticism and the approach does not seem to be consistent with wholesale gutting of the Commerce Clause or Necessary and Proper power.

    Such a pessimist you are, Armando. Learn to savor the moment.

    You can tell Monopoly is an old game because there's a luxury tax and rich people can go to jail.

    by Simian on Thu Jun 28, 2012 at 11:52:55 AM PDT

    •  we non-lawyers are struggling a bit to keep up (1+ / 0-)
      Recommended by:
      Simian

      I hope you're right.

      “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

      by jrooth on Thu Jun 28, 2012 at 12:14:53 PM PDT

      [ Parent ]

  •  So how does this work in terms of precedent? (0+ / 0-)

    Justices Ginsberg, Breyer, Sotomayor and Kagan do not share Chief Justice Roberts' opinion with regard to the commerce and necessary and proper clauses, but they are the rest of the majority.

    Justices Scalia, Kennedy, Thomas and Alito more or less share Chief Justice Roberts' understanding on this issue.

    Does the fact that five justices think this way make it binding precedent, even though four of them wrote in dissent?

    “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

    by jrooth on Thu Jun 28, 2012 at 11:54:16 AM PDT

  •  Roberts talks, at length, about the (1+ / 0-)
    Recommended by:
    apimomfan2

    commerce and necessary and proper clauses before he ever gets to the tax powers.  This clearly expresses his true concern--one he again reached for without any necessary reason to do so.

    Roberts: Scalia in sheep's clothing and the most dangerous man in America.

    “I freed a thousand slaves. I could have freed a thousand more if only they knew they were slaves.” - Harriet Tubman

    by Publius2008 on Thu Jun 28, 2012 at 11:56:25 AM PDT

  •  I was glad to see the final sentence. Frankly, (0+ / 0-)

    I  think some of this will evaporate when Obama is elected for a second term.
    I think Roberts ruled in favor of the mandate as tax as a gift to the gop...so they could have something with which they could attack Obama, and they could preserve a basic Republican/Wall Street idea at the same time.

    Hopefully Thomas will be ready to retire soon, and maybe Kennedy or Scalia.

    You can't make this stuff up.

    by David54 on Thu Jun 28, 2012 at 11:57:47 AM PDT

  •  I read Roberts' entire opinion - i am not (0+ / 0-)

    a legal expert, but reading this opinion, I think he longs for the late 1700's and early 1800s. It is rather incredible. It must be read to be believed. His view of the Constitution which, I trust from Justice Ginsburg does not reflect the history of the Constitution (ie it does not respect precedent), is as radical as any tea bagger. Federalism to an absurd degree, a degree that makes no sense in 2012 America. Roberts ruling is actually conservative in the sense of Republican and trying to return to the America of 1790, an America whose social injustice and inequity was unacceptable to Americans who demanded progress.
    His opinion makes one think he opposes the existence of the Department of Education, for instance.

    By writing the majority opinion, he greatly narrowed the scope of the Commerce Clause, limiting the federal government's ability to act for the good of our society and country, even when the legislation relying upon that clause for its Constitutionality was passed by elected representatives of the people. This will be very harmful probably in other ways. And the denial of the ability of the federal government to regulate the states in regard to Medicaid funding to cover the expansion of people into the program is very harmful. In Red States, it may mean that many people do not get the funding that they need to be able to get the insurance coverage that they both want and need and that the PPACA was designed to provide them. Not good.

    Roberts did a lot of harm here. I am glad that he recognized that the mandate was constitutional under the Tax Power. I find Justice Ginsburg much more cogent and compelling regarding the commerce Clause. Despite affirming the mandate's constitutionality, he hurt a lot of people today and in the future.

    And I write off Kennedy.

    I hope Kennedy Thomas Scalia Alito or Roberts retire soon. Roberts and Alito won't, but maybe one of the other three.

  •  From Slate (2+ / 0-)
    Recommended by:
    CanyonWren, apimomfan2

    Obama Wins the Battle, Roberts Wins the War

    But the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress' regulatory powers under the Commerce Clause.
    This is why the challenge to the ACA, and its progress through the courts, came as a surprise to Democrats and to mainstream constitutional scholars: Three years ago, there was no serious doubt that Congress had the power to impose the individual mandate.
    By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well). Here's the Chief Justice's opinion (italics in original):

    "Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”"

    We haven't heard the last of this...

    Somebody said Party! I got excited. I love Parties! Especially Parties with exclamation marks! Now I'm sad because there's not a Party! h/t AnnetteK ;-)

    by EdMass on Thu Jun 28, 2012 at 12:13:45 PM PDT

    •  Given what the Roberts opinion says (0+ / 0-)

      about the Commerce Clause, the New Deal is in no danger.  He cites New Deal court precedents in reaching his conclusion.

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Thu Jun 28, 2012 at 01:39:04 PM PDT

      [ Parent ]

  •  It's about the Supreme Court. Obama 2012. (0+ / 0-)

    I am going to read this opinion like Fundies read the bible.  Only I will read with comprehension AND in it's entirety.  Like Teabaggers talk about the Constitution, I am actually going to read everything the justices wrote about ObamaCares (yes because he does care).

    With facts in hand I am going to campaign my little Republican heart out to get President Obama reelected not only because he is good for the country but also we can't afford any more Scalia/Alito/Thomases on the court.

  •  I thought we won (1+ / 0-)
    Recommended by:
    apimomfan2

    why do you always have to complicate things?!

    complicator.

    I already left forever and never came back.

    by GBCW on Thu Jun 28, 2012 at 01:05:57 PM PDT

  •  Roberts sacrifices a pawn to advance his bishop... (1+ / 0-)
    Recommended by:
    apimomfan2

    ... good analogy?

    Have you noticed?
    Politicians who promise LESS government
    only deliver BAD government.

    by jjohnjj on Thu Jun 28, 2012 at 01:10:49 PM PDT

  •  This diary expresses the first thought I had . . . (0+ / 0-)

    on reading the syllabus to the opinion.  If the Court was going to uphold the individual mandate as a valid exercise of the taxing power, then it had no need to reach the Commerce Clause issue at all.  In fact, the well-established doctrine of constitutional avoidance would ordinarily have dictated that it not do so.

    So I think Armando is right.  Roberts is laying the groundwork for the eventual destruction of the Court's post-New-Deal Commerce Clause jurisprudence.  He's just smart enough to have avoided the firestorm of negative public opinion that would have resulted had he fully embraced the views of his right-wing colleagues.  Telling millions of Americans that their children would no longer have coverage for pre-existing conditions would have infuriated them.  Especially since that message would have come from five men who themselves would continue to enjoy taxpayer-subsidized health insurance.

    This isn't the end of the line for the Roberts court, though.  We will continue to see them undercut congressional efforts to improve the lives of Americans by means of the commerce power.  And I don't think we'll have to wait long for that.

    "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

    by FogCityJohn on Thu Jun 28, 2012 at 01:17:21 PM PDT

  •  Roberts logic works for me (0+ / 0-)

    His opinion restricts Congress's ability to force individuals to engage in a specific commercial transaction with a private enterprise. That troubled a lot of people here back in 2009, before it became a political as opposed to a Constitutional issue.

    Like Roberts, I see the mandate as similar to the carrot and stick approach which Congress uses to coerce the states into behaving as they would like.(lower your speed limits or lose highway funds, etc.)  Under Roberts logic, Congress cannot mandate that we all brush our teeth, but it can provide tax incentives for those who do.

    I wonder what specific powers the author (and Justice Ginsburg) would like Congress to have which Roberts has proscribed with his opinion.

    Oh Yeah? Go Friend Yourself!

    by roguetrader2000 on Thu Jun 28, 2012 at 01:24:08 PM PDT

  •  I think an amendment is in order (0+ / 0-)

    to state that the federal government can regulate all commerce in the US.  It's basically how it is now, but an amendment would cement this power against ideological judges.

    Conservatives need to realize that their Silent Moral Majority is neither silent, nor moral, nor a majority.

    by nominalize on Thu Jun 28, 2012 at 01:32:32 PM PDT

  •  Absolutely...My thought was this is a chess move (0+ / 0-)

    granted the right one....but Roberts will be around for a while...and from a long game standpoint....he just gave himself and his courts the ultimate trump card for future accusations of bias...I am pretty sure it will be used often

    "But once John Boehner is sworn in as Speaker, then he’s going to have responsibilities to govern. You can’t just stand on the sidelines and be a bomb thrower." - President Obama, 12-07-2010

    by justmy2 on Thu Jun 28, 2012 at 01:47:40 PM PDT

  •  I'm sure Roberts lost a lot of sleep (0+ / 0-)

    on this ruling.  Since taking the bench he has never failed to rule in favor of:
    Police over suspects
    Corporations over consumers
    Corporate boards over shareholders
    Government over civil liberties.
    The insurance industry loves the mandate (and the subsidies that will help enact it,) and hates, hates, hates the regulations.
    But how to declare the regulations unconstitutional while upholding the mandate?  It would require even more magical thinking than the dissenters' decision to toss even the expansion of sliding fee clinics because they ruled the mandate unconstitutional.
    In the end, Roberts served his corporate overlords, while hoping, I am sure, that Republicans in Congress and the WH will rescind the regulations.

    Fun Fact To Know And Tell: Out of the 4 justices who voted to overturn the Affordable Care Act, all four have guaranteed for life government provided health insurance!

    by jazzmaniac on Thu Jun 28, 2012 at 03:03:33 PM PDT

  •  Is CJ Roberts opinion re (0+ / 0-)

    inapplicability of Commerce Clause and N & P dicta?

  •  Smacks of conspiracy theory to me ... (0+ / 0-)
    but there is an obvious one—the Roberts five seek to dismantle the New Deal jurisprudence ... Chief Justice Roberts has written an unfathomable opinion whose motive can only be the laying of groundwork—the groundwork to undo the New Deal.
    Just sayin.
  •  um (0+ / 0-)

    all of the new deal policies are "for the general welfare."

    http://www.actblue.com/page/accountabilitynow If the dnc dscc or dccc send you mailers, send that link back to them and tell them you won't send money to people who defend democrats who betray progressive principals! up yours!

    by daeros on Fri Jun 29, 2012 at 11:36:12 AM PDT

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site