Was Scalia’s Dissent Originally a Majority Opinion?

Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion http://lsolum.typepad.com/legaltheory/2012/06/evidence-that-the-votes-shifted-after-conference-initial-vote-to-declare-mandate-unconstitutional.html (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA? The dissent, along with the surprising way that Roberts chose to uphold both the mandate and the Medicaid expansion, will inevitably feed the rumor mill.

Essentially the Court accepted all of the legal arguments establishing that Congress cannot force people to participate in commerce, which arguments were derided by the law professor establishment, but accepted the argument that everyone thought was a sad joke and afterthought, that this was a tax even though Congress chose not to call it a tax.

Court holds NOT a tax for purpose of Anti-Injunction Act (which means can’t challenge until tax owed) but IS a tax for purpose of Congressional power.

Opinion now posted, here.  It’s 193 pages.

Per ScotusBlog, here’s a summary:

“In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.”

Per ScotusBlog money quote: “Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.”

Haven’t read opinion yet, but per ScotusBlog and news reports, Roberts joins left wing of court in finding that mandate is valid under power to tax, but not under Commerce Clause or Necessary and Proper Clause.  This is the argument no one expected to prevail.

Per Fox News mandate thrown out under commerce clause. WAIT — per Scotusblog survives as tax

Roberts now reading majority decision on Obamacare.

Sup. Ct. Opinion page not loading — must be inundated.

Court affirmed 9th Circuit striking Stolen Valor act as violating 1st Amendment.  Alito, Scalia and Thomas dissent.

Court is in session.
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Before the start:

It’s on.

The Court comes into session at 10 a.m.   There are other decisions pending, including on the so-called Stolen Valor law.

At some point not long after that we’ll get the first indications of how the Obamacare decision comes out.  It may be crystal clear at first, or require more understanding than the folks at ScotusBlog can give us on the fly.  Hopefully not long thereafter the actual decision will be available.

I’ll update as information is available, so refresh your browser frequently starting at 10:00 a.m.  Updates will be at the top of the post, with the most recent on top.

 
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