Stop the self-delusion
Some well-meaning people are peddling the notion that today’s Obamacare decision was a long term victory, that we lost the battle but won the war, that there was some master plan by Chief Justice Roberts to gut the expansion of Commerce Clause power under the fig leaf of a majority ruling upholding the mandate under Congress’s taxing power.
To paraphrase Joe Biden, I have just four words for you:
BIG —— DEAL
If this were some other more narrow law, if this was not a monumental takeover of the most private aspects of our lives, if this monstrosity would not cause such long term damage to our health care system, if this law was not Obamacare ….
I might be inclined to agree with you.
But it is Obamacare, it is the takeover of a substantial portion of our economy which empowers the federal government to write tens of thousands of pages of regulations telling us how to live and how to die.
This was the hill to fight on for any conservative Justice of the Supreme Court.
Yet because the conservative Chief Justice sided with the liberal Justices on the result, we have Obamacare.
Whether the Chief Justice did it out of good faith belief in the correctness of his opinion (which is what I believe) or as part of some master plan (the theory some are peddling), the result is the same: Until further notice Obamacare is the law of the land.
Sure, we now are motivated for November. And maybe in the end we will get rid of Obamacare.
But that is then and this is now. And under any reasonable theory of conservative judicial restraint, the Chief Justice should have allowed Obamacare to fall of its own weight, of a weight born of a political process in which the mandate could not be called a tax because the nation would not have stood for it.
This is now, and today we should have been rid of this monstrosity.
We live to fight another day, but don’t tell me we won because someday possibly in the future in some other case with some other set of Justices we maybe might achieve some doctrinal benefit from the Commerce Clause ruling.
So please don’t delude yourselves. Today was a bitter loss because it was one we should have won.
Related: Supreme judicial activism in restraint’s clothing and How right I was: “IRS The New Health Care Enforcer”
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Comments
[...] no delusion [...]
In a year or so, I will very, very likely renounce my US citizenship, and retire to Central America where temperatures are warm, taxes are low, and life can be really be enjoyed. This is NOT the America in which I grew up.
I have seen so many liberties lost in my lifetime; is it really worth being a US citizen anymore? We are quickly headed toward Spanish-speaking, 3rd-world ‘craphole’ status via the back door the feds left open at Arizona. Don’t really want to be so pessimistic- but I won’t sugarcoat.
I feel sorry for those much younger who don’t have the options I am fortunate to have. To those still here, God Bless and good luck.
but Walls -
Do you intend to go native & visit the local clinic or fly back to Florida for treatment.?
Go native, of course. The dems seem to think health insurance is a guaranteed human “right”; I disagree. It is a commodity. If you want it, buy it. And if you don’t want it, don’t buy it.
What’s next as a “right”? A car? A computer? Wireless? College education? I supposed it is whatever the gubmint wants to subsidize/transfer wealth to gain dem votes. Utterly disgusting.
Thanks for the polite reply. Not everyone is as pleasant today .
Cheers
my favorite layer joke: what do you call a lawyer with a 50 IQ? your honor.
i will update it: what do you call a lawyer with a 50 IQ? mr chief justice
A year ago nobody thought we could depend on the Supreme Court throwing this out … we are at the same point today … so no, we didn’t lose anything …
Repeal has always been the best way to overturn this law …
A legislative repeal is better in the long run than a judicial one. That’s always been my belief.
[...] its because my family fled communism that this form of government overreach is so upsetting. But even if you’ve lived here for generations, the events of the past few weeks should make [...]
Agree with the Prof on his point. Time for reality not shoulda coulda woulda. The only concilation I noticed was from Volokh late last night with the suggestion to quickly force legislation that gets democrats to admit by vote that the mandate provisions are indeed based on tax. Tax not “mandate”. If they dont agree? The bill fails as does the ability to fund.
It was a hard loss in court.
The campaign is all about Obamacare again.
Recall? Waay back when some of us wondered who best to bring the issue to the voters?
Some of us said Newt. For obvious reasons.
And here we are.
I heard Romney’s response to the Supreme Court. WEAK!
After his confident, polished debate performance, I was expecting a strong, firm response. Nope. Seems ol’ Mitt is really good at bullying Republicans with an MSM “posse,” but playing solo in the big leagues–not so much. I’ll work to get him elected, but he’s looking increasingly like McCain II.
America is finished.
Link to that suggestion
http://www.volokh.com/2012/06/28/if-i-were-a-republican-congressman/
As a retired detective who has dealt with both the criminal and civil side of the courts, I am very disappointed in the way LAWYERS are upset that a LAWYER did what he did.
You know how the way lawyers have been taught as changed over the years. No longer do they look at the greater good, they look at only “is it legal”. The Rule of Law rules them. They believe that the rule of law protects society and holds it together. That morality, justice, innocent or guilty, good or bad have nothing to do with the Law. It lives for itself. (that is almost a direct quote from a senior state attorney-felony division- after I complained about one of their ignorant decisions not to prosecute a scumbag.)
Now not all lawyer (Thomas and Alito are examples) follow that mantra. But most do.
Roberts comes from a school of thought where he believes, I think sincerely, that it is not the job of the Supreme Court to fix stupid acts by Congress or the President. Only stop unconstitutional acts. Remember the campaign finance law? Republicans built it, passed it and signed it into law. I swear I remember GWB saying at the time he was uncertain, but was sure the SP would rule it unconstitutional if it was. Then to the surprise of everyone the SP rule it was fine. Only after harm was done did it go back and rule it out.
It is sometimes like the Congress looks to the SP to “stop me before I legislate again!”.
I was recently involved in a civil issue and watched as lawyers blew up the rule of law by “stipulating” to certain facts that were never introduced into the case legally- to make it easier for the lawyers and the judge. I was astonished and embarrassed for them. I complained and they said, “As long as we all stipulate, it is legal.” The only way for me to stop them was to appeal, which they would have lost on procedural grounds. I had to be “harmed” before an appeals court would rule on the harm. Being stupid and breaking the rules to make things go easier was okay.
But that is the current system of law in America.
Further, and as I said in another comment. Roberts is right on the law. Congress can and does reach into our lives under the excuse that it is a “national need” to adjust our behavior and then tax us for it. They do it all the time in IRS credits or taxes, or even more on point, Social Security and Medicare. I was worried about that more than anything during the debate. Congress taxing us for “needs” they identify is settled law. Social Security is now considered a nationalized retirement program. Medicare a nationalized elderly medical program. Congress taxes us in every pay check for that “service” the government provides us.
Why is it that suddenly taxing us for nationalized something is an unconstitutional act by Congress because the law they wrote is a nightmare and will crush our economy? Medicare and Social Security and other “entitlements” created to solve a national need are killing us anyway.
Roberts just kicked what he thought was our responsibility to fix back to us. If we want a better world, we need to “man up” and take on the challenge of throwing out the bums, living a more austere life (honestly, aren’t we asking more than government can provide as a way to get “free stuff”?), and realize government is not the answer or the nanny.
Good luck on that! People are spoiled and greedy by nature. Ask the Greeks, Germans and French how the idea of austerity feels to the voter.
Roberts can’t fix stupid, and he believes it isn’t his job.
He did his best dealing with it, just can’t fix it. That is our job.
man up.
You are dead-on about the practice of law in the USA.
I’ve been injured in accidents where others are at fault on several occasions, with complicating circumstances. The lawyers? They quote law and tell me and cheerfully tell me I’m S.O.L. Not a single one tried to find a legitimate alternate way to get the law to work for me.
Most lawyers are book-smart, legalistic robots who care nothing about people. It is why people hate lawyers so much.
As has been pointed out here and many other places, Roberts is clearly not “right on the law.”
Your advice to “man up” is better directed at the person who abdicated his constitutional responsibility.
[...] based on the power to tax – what else can Congress mandate based on its power to tax? And (d) we still have to live with this monstrosity. “Conservatives” can cheer that the ruling increases the chances of defeating President [...]
[...] William Jacobson argues that all of this is self-delusion among conservatives straining to perceive silver linings: But it is Obamacare, it is the takeover of a substantial portion of our economy which empowers the federal government to write tens of thousands of pages of regulations telling us how to live and how to die.This was the hill to fight on for any conservative Justice of the Supreme Court. [...]
Krauthammer, who is thankful that Roberts clearly limits the Commerce Clause for the first time since SCOTUS became determinedly activist, does have at least some point to make here.
Perhaps more importantly, if there is a silver lining here, it is that the Constitution was re-affirmed while still allowing the people to have a discussion and vote on the proposed law. IMHO, Roe vs. Wade preempted this discussion on abortion, and Roberts clearly defended the people’s right to have one on health care.
[...] coming at them from all sides, is anyone’s guess. But the ball always did belong to us.Am I among the self-deluded?. Perhaps. I’ve never said I can’t be wrong. In fact, I’m often wrong.But I still [...]
[...] Readers: Today, it’s MUT’s movie round-up. Like Legal Insurrections’s Professor Jacobson, I find it difficult to interpret the SCOTUS decision as anything other than a battle loss. From [...]
Read the text carefully. Once you do, you will realize how close we are to 1776 and why the government refuses to recognize that the Declaration is the foundation of our current Republic.
http://www.archives.gov/exhibits/charters/declaration_transcript.html
You’re right about the takeover of 1/6 of our economy, the incredible growth of government, and the death panels, all of it. But if, as many thought would happen, only the mandate were struck down, we’d still have all of that and still need to work our cute little butts off to hold the House, and win both the Senate and the WH in November.
Without the mandate, the hope (I guess) was the dems would just give in and redo it. What a joke, you don’t think for a minute that would have happened; we’d still have the bulk of the badness that is the ObamaCare monstrosity (including the student loan takeover, the long list of new agencies and new powers to existing agencies, the death panels, the other zillion taxes built into it, all the assorted horrors and affronts to limited government and liberty), and we’d still have to insist on full repeal.
The only thing standing between America and a Dictatorship is The Roberts Court. We have 3 branches of government. Obama has neutered Congress, and has been attacking the court since his first State of the Union. His intent is clear. Destroying 2 of the 3 branches leaves only the Executive Branch standing.
The court maintains authority only so long as the country perceives it as legitimate. Roberts ruling gives the power to keep or strike Obamacare to the people while maintaining the integrity of the court, strengthening the 10th Amendment, limiting Federal Power, removing the teeth of the law, and, by accurately identifying it as a tax, providing clear procedures for repeal. Brilliant.
If America doesn’t want Obamacare we must get rid of Obama. What the Chief Justice gave us was the ability to use free will. There’s nothing more Constitutional than that.
[...] limit on the commerce clause (infinitely weaker than the founders intended), but I’m with Professor Jacobsen: anyone who thinks that adding an unlimited federal power to tax for the general welfare to the [...]
[...] sorry, misguided folks trying to gin up some hope for themselves out there, I’ll let the Prof dispense with that: If this were some other more narrow law, if this was not a monumental takeover of the most private [...]
[...] But even if he won, we argued well before last week’s Supreme Court ruling, Obama would lose because the opposition would be even more energized against the hated health scam racket on behalf of Big Insurance and Big Pharma. Now a ruling has come down that provides endless riches to opponents of Obama’s health scam, particularly Republicans/conservatives, but you would not know it from the howls from the right. [...]
[...] I among the self-deluded?. Perhaps. I’ve never said I can’t be wrong. In fact, I’m often [...]