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Supreme judicial activism in restraint’s clothing

Supreme judicial activism in restraint’s clothing

The most disturbing thing about today’s decision is not that we lost on the mandate. The majority opinion on the Commerce Clause (the Chief Justice plus the conservative dissenters) was quite good, and vindicated those who mounted an argument as to “inactivity” to the derision of the law professoriate.

What is most disturbing is the judicial activism which took the Chief Justice from the Commerce Clause to the taxing power in order to save the legislation.

It required, as Justice Scalia noted in the dissent, a rewriting of the legislation, and the enactment of a tax via judicial fiat where the legislature knowingly and deliberately had refused to do so.

For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling.  Taxes have never been popular, see, e.g., Stamp Act of 765, and in part for that reason, the Constitution  requires tax increases to originate in the House of Representatives.  See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no  doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.  (pp. 24-25, emphasis added)

Rather than defer to the political process, the Court save the proponents of the legislation from their political decisions, and rewarded a corrupted political process whereby legislation was passed only because it was not sold to the public as a tax, yet saved at the Supreme Court because it was a tax.

Yet the Chief Justice clothed such activism in terms of restraint.  Restraint would have been to allow the legislature to bear the natural consequences of its political decisions, not to rewrite either history or the legislation.

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Comments

Professor, I think the Chief Justice was more concerned with preserving the Court’s image than he was with anything else. He punted the question back to the Congress where it can be dealt with in an expedited manner, rather than let the law be diced and sliced in the courts and its slow process to get an appellate decision.

Make no mistake, I wish he’d have had the cogliones to stand with the minority and be the fifth vote, but we both know that if the Court can find a way to take a distasteful issue and find it a political question to avoid a hard decision, it will.

Here, the CJ decided to let the sausage makers up on the Hill take up the issue once again, with the Hill now divided, unlike it was when the Obamatax was enacted.

Just my opinion, but I never expected courage from the Supreme Court. It’s not in their lexicon.

holmes tuttle | June 28, 2012 at 3:44 pm

Professor,

Why do you say as Scalia noted in his dissent?

It was a joint dissent by all 4 of them and Kennedy read it aloud today. If you look at the Language it has more in common with Kennedy’s previous opinions and I’d guess he wrote most of it.

You should say as all 4 dissenters jointly noted. Scalia shouldn’t get any extra credit or anything for a dissent he didn’t write.

I’d like to see if I understand . . .

The language of the bill was in terms of Commerce, not tax. Therefore, on this basis the mandate was invalid. So, rather than to stike it down and return it to Congress, the court, in effect, re-wrote the legislation based upon tax code. Thereby, it was made valid by the court, not the legislators.

NC Mountain Girl | June 28, 2012 at 3:47 pm

I’m not as upset. Only a few law bloggers really give a hoot about expansive readings of the commerce clause but most voters pay close attention to tax increases. Maybe Roberts should be congratulated for calling something to be collected by the IRS a tax instead of letting the politicians hang a fancy B.S. label on it.

One reason we are in our current mess is because of all the hidden taxes we have because of over regulation justified under the commerce clause and sold as virtuous improvements to society at no cost to voters. How many people would support the EPA if they got one bill every year for their share of the cost of regulation instead of having it creep up on them through higher costs for goods and services?

    TrooperJohnSmith in reply to NC Mountain Girl. | June 28, 2012 at 4:29 pm

    A regressive tax, at that.

    It will soon hit young people squarely between the eyes when they are compelled to buy ACA-compliant all-inclusive policies at great cost on their rather limited means. Only then, will they understand the depth of the swindle…

      iconotastic in reply to TrooperJohnSmith. | June 28, 2012 at 4:40 pm

      Works for me. That group supported Obama and the Democrats. So we are just giving them what they wanted…good and hard.

      VetHusbandFather in reply to TrooperJohnSmith. | June 28, 2012 at 8:37 pm

      Unfortunately that is exactly what the current administration wants. It will only make them rage more against the Republicans for not letting them have a single payer system.

eric.feldkamp | June 28, 2012 at 3:49 pm

1. If it is a tax, why did it originate in the Senate?

2. What part of the constitution is construed to allow congress the authority to tax anything it wants even without having the authority to regulate it?

While some are happy about the commerce and N&P clause rejections, to me it looks like the Supreme Court sort of handed the Congress a big end around of both. From now on they can just tax whatever they want. This is a tax based on your existence as a resident of this country, and you must engage in economic activity to escape it.

    persecutor in reply to eric.feldkamp. | June 28, 2012 at 4:02 pm

    I believe the first bill passed was in the House and then it went to the Senate who had differences and it was then sent to committee and reconciled.
    If so, then it originated in the House.

      eric.feldkamp in reply to persecutor. | June 28, 2012 at 4:09 pm

      The house bill was completely unrelated. Reid took it up, dumped everything in it and put Obamacare in it’s place. Which is a pretty thin argument for saying the tax originated in the House, because it didn’t.

    iconotastic in reply to eric.feldkamp. | June 28, 2012 at 4:22 pm

    “1. If it is a tax, why did it originate in the Senate?”

    Doesn’t matter. Just because some irrelevant piece of paper states one thing, what really matters is what DC wants right now. Roberts signed on to that.

    “2. What part of the constitution is construed to allow congress the authority to tax anything it wants even without having the authority to regulate it?”

    The power of “We can do anything we like and you serfs just have to eat this [email protected] sandwich and like it” That power. Right next to the power of “we can take your property and give it to whoever we [email protected] well please”.

    You seem to think that a piece of paper more than 200 years old is anything more than toilet paper to people in DC and their supporters in the provinces. How quaint.

I get so lost in the legal stuff, but it seems that the tax is based on the mandate which was overturned? What action/non-action are they saying Obamacare can tax if you only get taxed when you don’t buy healthcare?

    iconotastic in reply to scfanjl. | June 28, 2012 at 4:25 pm

    In programming terms, the legal language surround this (and most) decisions is just a series of obfuscations with a predetermined result. No need to understand the language–it is all just rationalization of a never-ending goal of growing the power of the federal government.

    Time to start working with Democrats and government programs. Lots of graft to be made as long as you donate and vote for the right people. The Chicago way come to the USA. Yeah, baby.

    janitor in reply to scfanjl. | June 28, 2012 at 4:39 pm

    IMO the “tax” is not valid either as couched, probably on an equal protection argument. (Being taxed for not doing something is not akin to being taxed on a purchase of gasoline or cigarettes, or getting a credit from taxes. E.g. a legitimate scheme would have been to raise everyone’s taxes, and then issue deductions or credits for the purchase of insurance.) However, as a practical matter, this can only be contested years from now after some taxpayer fails to pay, is penalized by the IRS, then successfully brings the constitutional issue all the way back up to the Supreme Court, and the Supreme Court agrees to hear the case — all over a few thousand dollars.

    MaggotAtBroadAndWall in reply to scfanjl. | June 28, 2012 at 5:48 pm

    He just called it a tax to justify allowing the law to stand. As brilliant as Roberts is, and by all accounts he is very bright, this ruling makes him look foolish.

    The best analogy I’ve read analyzing it goes like this:

    When you go to the store, you expect to be charged sales tax on your purchases. But in this case, you’re being taxed because you did not go to the store to buy something.

    Or, you expect to be taxed when you decide to to get out of bed and go to work and earn an income. If Roberts and the liberals had their way, if you decide to stay in bed and not work then they would tax you on the income you did NOT earn.

    It is absurd.

When I saw Alberto Gonzales last night on t.v. saying the SCOTUS might decide to punt the case (using the ripeness issue), I was concerned because I thought that might actually appeal to Roberts, who seems to want to avoid the appearance of the court being too political. Saying the case wasn’t yet ripe because no one has yet been assessed the penalty would have been a way to dodge the issue for another few years, and push it safely past the election. But I was astonished to hear this morning that Roberts had joined the libs and agreed the mandate could be upheld as a valid exercise of the tax power. That seems like a hyper-political decision, for the reasons Scalia’s dissent discussed. Roberts has now bent himself so far over backwards to avoid looking political that he has twisted himself into a pretzel, and comes off looking like a damn fool.

“Yet the Chief Justice clothed such activism in terms of restraint.”

The only restrain Roberts showed was failing to read the entire 2700 page long Obamacare law before inflicting this cruel and unusual punishment on the populace.

now that it is officially a tax, aren’t lower courts bound to view it that way in future suits?

after all, taxes have to start in the HoR, not the Senate, where this bill started out, so i would think that there are solid grounds to sue for overthrow on those grounds, even if one might have to wait until the taxes start being levied to sue.

but then again, IANAL… you tell me Professor.

Professor and fellow commentors, please help. Was this decision to uphold the mandate as a tax based on the 16th amendment or under the general taxation powers of Congress? I ask because my understanding is that general taxes (excise) are applied to a specific product or activity. This tax is applied to inactivity, so I don’t see how it can be an excise tax or a general tax levied by Congress. Hence, one is left with it being constitutional based on the 16th amendment, which frightens me because then Congress can “tax” anyone into any behavior it wishes. Can anyone explain how this is a tax?

    lightning in reply to lightning. | June 28, 2012 at 5:42 pm

    I ask because even when you compare this to a state taxing those who don’t purchace care insurance you come up against one problem. That is that the tax is levied against everyone who buys a car. People who don’t own a car do not pay the insurance “tax”. Therefore, the product actually being taxed by the state is the car. Health insurance isn’t quite the same since people can (and have – myself included) not purchased health insurance and simply paid out of pocket. Health insurance itself is not the only means of accessing health care. Can anyone explain the SCOTUS decision based on the tax premise? Please?

      lightning in reply to lightning. | June 28, 2012 at 5:45 pm

      Sorry, grammer suffers yet again. It should be “purchase car insurance”. Not my day for effective writing.

Lawrence Auster wrties: “Since the Congress can now command citizens to do anything the Congress wants, since America as a republic under a government of limited powers is now officially dead, therefore conservatism, which if it means anything means support for that republic of limited powers, is now also dead. For conservatives to continue to support the constitution means supporting a leftist government with unlimited powers.” and more if you want to read the rest!

    HarrietHT in reply to Enolagay. | June 28, 2012 at 4:10 pm

    Mr. Auster has it right. The court has become not a check on abusive legislative and executive power but a rubber stamp, all in the name of “restraint.” It has forfeited its right even to EXIST.

    OcTEApi in reply to Enolagay. | June 28, 2012 at 4:24 pm

    broccoli, broccoli casserole, broccoli souffle, broccoli Pie, broccoli soup, broccoli-kabobs, broccoli creole, broccoli gumbo, broccoli stew, broccoli salad …

    iconotastic in reply to Enolagay. | June 28, 2012 at 4:30 pm

    Well put. The Constitution is as relevant as the old USSR Constitution. With proper sophistry and disingenuous redefinition of words anything the federal government wants is now constitutional. Anyone who thinks that something being unConstitutional matters at all to the vermin in DC is a fool.

    And, for those still hoping that a Constitutional Convention could limit the federal government–all it would take would be a turncoat like Roberts to decide that the CC was part of the “old” Constitution and therefore no longer valid. The “new” Constitution (the one no one ever sees) doesn’t allow for the provinces to limit all the goodness that a unlimited centralized government can do. So that’s a big FU from them to us.

      walls in reply to iconotastic. | June 29, 2012 at 7:12 am

      The old school scholars say judges should interpret the Constitution as our founding fathers intended. The new school says that the Constitution changes and evolves.

      Those new schoolers believe in what some call a “living constitution.” SO NOW I KNOW. What we have is actually a “living, breathing Constitution” …… with asthma.

Was the mandate included in the House bill which was sent to the Senate, gutted, and replaced with the language of the House bill dealing with Obamacare, then passed by the Senate with 60 votes?

Or was it in the reconciliation bill that was passed immediately afterwards (which originated in the Senate)?

I’m so confused right now….

    yeah, Obamacare passed by the Senate with 60 votes.

    Reconciliation requires that a damn budget actually exists.

    I believe Obamacare was passed in the Senate by reconciliation, which is usually reserved for budget bills. That means it needed only 50 votes to pass, with the VP as a possible tie breaker. They never could get the 60 votes they needed.

    So, if the Rs have the majority in the Senate, it can be repealed with just 50 votes plus a Republican VP as the tie breaker.

    If I am wrong on this, someone please correct me.

      MaggotAtBroadAndWall in reply to kakypat. | June 28, 2012 at 6:18 pm

      It’s my understanding the Senate used a “shell” of a bill they had laying around that had originated in the House but was totally unrelatedto the health law when it did originate in the House. So this is just another of the many scams our legislators use to subvert the constitution while technically meeting a requirement.

      But you are right that it was passed using reconciliation because they could not get 60 votes in the Senate.

      My guess is that if Republicans somehow manage to take control of the Senate in November with less than 60 seats, they will not have the stones to repeal it using reconciliation.

Seems to me Roberts really doesn’t believe in overturning legislation that has been enacted. As a consequence, he really did rewrite the law to justify his decision that it is a tax, not a penalty.

As for repeal, getting a normal repeal bill through the Senate will be tough even if Republicans get a majority because they probably won’t get 60. However, couldn’t some sort of effective repeal be done as part of the budget reconciliation process which only requires 51 votes?

    eric.feldkamp in reply to JayDick. | June 28, 2012 at 4:11 pm

    They have already said they will use reconciliation.

    HarrietHT in reply to JayDick. | June 28, 2012 at 4:12 pm

    If the House had any sense at all of the doom for the nation this decision represents, it would stop the government this very day by refusing to FUND ANYTHING.

    DINORightMarie in reply to JayDick. | June 28, 2012 at 4:22 pm

    I was reading something over at NRO earlier, after the ruling came down, that said in essence that since this is now considered a tax, the votes needed to repeal the tax only require 51 votes in the Senate….a simple majority.

    I don’t have a link now, but will look and update.

      iconotastic in reply to DINORightMarie. | June 28, 2012 at 4:34 pm

      The mandate is only a tax when a mandate is unconstitutional. It is a mandate when a tax is unconstitutional. Similarly, it is a mandate when the Democrats want to fillibuster and it is a tax when they want to pass it without worrying about cloture.

      Heads they win, tails we lose. Pretty simple

      OcTEApi in reply to DINORightMarie. | June 28, 2012 at 4:37 pm

      Budget reconciliation only requires a budget, and to only show that repealing said tax with a simple majority will positively effect (reduce) said budget.

      HarrietHT in reply to DINORightMarie. | June 28, 2012 at 4:38 pm

      Quite so, and this is how the repeal should be presented: it was sold as a mandate with penalty, judged now to be unconstitutional under the commerce clause, and it will be repealed under the taxing authority of the House — which will rule its effect on Americans as draconian in size and scope. NO Democrat will win this Nov. once the people understand THEY WERE LIED TO by Obama who intends to squeeze them like turnips, taking not only their MONEY but their freedom.

      Any Democrat who votes on repeal to tax people out of their existence will be crushed.

Here is another problem we conservatives have. When the left
appoints Supreme Court justices, they appoint hard left wing, ideological radicals, who virtually never deviate from their ideology. And when push comes to shove in a big case, the left can count on them. Think of progressives like Brennan or now Kagen, or Sotomeyer.

We on the other hand are cowards and will not go to the mattresses to appoint fire brand conservatives. We wind up with guys like Roberts, who in the Obamacare case and the Arizona immigration case defects to the left and wants to be seen as “restrained.”

The left gives us atrocities like Roe v. Wade and we are stuck with them for decades. When our guys come up to bat, they get nervous (God, don’t let me be called an extremist!) and politely hit a soft grounder to the short stop.

Look how easily Elena Kagen, a left wing political hack if there ever was one, got through to the Court. Supposed conservatives like Sen. Lindsay “Goober” Graham vote for her and say “elections have consequences.” What he means is that elections in which Democrats win (like Obama) have consequences, those in which Republicans do not so much! Thus eminently qualified justices like Robert Bork get knocked down by the left and we take it.

Just think, Justice Thomas almost didn’t make it because the left raised some charade about dirty jokes he supposedly told.

Yes, “the game” shouldn’t have come down to one guy (John Roberts), but it did and we can not over look what he did to us.

    iconotastic in reply to Malonth. | June 28, 2012 at 4:39 pm

    Which is why supporting the GOP is worse than a waste of time and money. If I am going to choose between a political party that wants unlimited government and a political party that loves unlimited government but lies to me about how they will prevent the growth of government while surreptitiously allowing unlimited growth, I am going to pick the former over the latter every day of the week and twice on Sundays.

    At least if I am on the winner’s side they will have lots of spoils to distribute. Invent some sound-good public/private program that just needs a few million dollars, pitch it to the Democrat bagmen you have donated to in your district and watch the dollars flow in! Just be sure to convert yours to Swiss Francs as quickly as possible.

    Wasn’t the Roe v Wade court 6-3 Republican appointees? And one of the two dissenters was a JFK appointee?

    I don’t think we can blame Roe v Wade on the left, though four of the justices were put on the court by Nixon so…yeah.

Your reading into this decision too much. The arguments are absurd as Scalia scathingly called the decision a “fly by night” decision given that no one took the tax argument seriously. No ONE, not even the majority decision takes the position seriously as Scalia points out. They simply wanted to preserve Obamacare and painted themselves into a ridiculous corner throwing out stale rhetorical candy about “limited powers” and restraint while they basically gave unlimited power to the federal government through another previously limited power.

There is nothing in that decision that comes down as an enforceable victory for conservatives. Whats next, if they can regulate inactivity in the form of purchasing, they can regulate inactivity in the form of selling, can we be compelled to labour for the private gain of others or face punishing taxes? Will our daughters have to whore themselves out? Will our sons be forced into labour camps? Under this decision, why not? If only the restraint of high minded politicians prevent such things from occurring, then its only a matter of time.

And yes I do maintain that forced purchasing is a form of slavery. When I get up in the morning, there are a million things I may not do, that is a matter of law. Now when I get up in the morning I must make sure I have health insurance. thats a fact of tyranny and it will only increase with time.

DINORightMarie | June 28, 2012 at 4:35 pm

Welcome to Ameritopia, a country which is ruled by both a dictator issuing executive fiats and a judicial oligarchy who rubber-stamps anything favorable to our “dear leader.” That group running on the hamster wheel and in the Habitrail generating hot air is called Congress – they are worthless, don’t worry about them. All sound and fury, signifying NOTHING!! …for now.

I never, NEVER thought I’d live to see this day!!

When Obama got elected, I feared this. When ObamaCare passed, I feared this. Listening to Mark Levin last night, I had a sickening feeling……. This MUST be repealed!! The SCOTUS members who WILL retire MUST be replaced with Conservative jurists; Ginsburg and others will retire…..and they MUST be replaced with strict Constitutionists – like Scalia and Thomas.

This travesty, compounded by Roberts’ FAILURE to do his job, MUST fire us all up to VOTE THE LEFTISTS and RINOs OUT of Congress! And Obama MUST be elected OUT!

Anybody! But! Obama!!!

Romney will sign a repeal – if he wants to stay in office, and have 2 terms.

Yeah, elections have consequences, all right.

Remember in November!

There are an awful lot of demoralized people writing today. But what I say is this, cliche as it is: When the going gets tough, the tough get going. Only the lack of will itself dooms you. Better to die standing than lying down.

It is a bitter day for liberty but it will make victory in November that much more sweet.

Here is a great article at American Thinker:

http://www.americanthinker.com/2012/06/war.html

“America is now at war. It is a civil war, but no shots will be fired. It’s a war over the Constitution, yet it will be through the Constitution that the winner will be determined.”

Not being a lawyer, does this “tax” set a precedent? For example what about a $1,000,000 tax/abortion. Or what about a $10,000 tax on anyone not able to prove they own a gun for their protection. There are millions more possiblitlites for either party that now have perfect the map to “tax” any behavior they want.

It’s extremely disappointing to see the Chief Justice adopt the left’s definition of bi-partisanship. Chief Justice Souter, I presume?

1. Some well-intentioned conservatives claim that Roberts has executed a cunning plan to undermine the conceptual grounding of Leftist politics. I contacted Saul Alinsky via ouija board to ask about this. He said:

We’re happy to condede the moral victories, the intellectual victories, the ethical victories, the future (so you believe) victories to you reactionaries as long as we get power now.

Chuckling, he signed off.

2. America’s Ruling Class takes care of America’s Ruling Class. This is a good day to re-read Angelo Codevilla’a article of that title. I commend it to the attention of anyone who hasn’t read it.

3. This ruling forces me to rethink my opposition to Sarah Palin as a national candidate. Ditto for Gary Johnson. As a first step to that end, I’ve signed up for their mailing lists.

4. It is clearer than ever that replacing Obama with the Republican nominee is a finger-in-the-dike tactic—but it’s a worthwhile finger-in-the-dike tactic.

5. If it turns out that Roberts has laid the groundwork for a repeal of Obamacare by majority vote in Congress, I will admit I was wrong in #1. The rest of my post, with more urgency than usual, addresses matters that go well beyond Obamacare.

An extraordinary day. Roberts’ opinion did some considerable good too, even if he made this bizarre attempt at post facto legislation.

He seemingly forgot that Congress contemplated structuring the mandate as a tax in early drafts and then changed it’s mind, forcing the law into twisted knots so as to structure it as a mandate (lest they be accused of levying a tax specifically benefiting private businesses, I suppose).

The government mentioned the “it’s a tax” argument only briefly, to outright laughter from the Court, and even then said they were not advocating the argument because it wasn’t reasonable.

I could go on, but this is a mysterious outcome. Glad to see the commerce clause finally get the knife it deserved, though.

Worm in the Wood | June 28, 2012 at 5:20 pm

It seems to me that we would have been better off if the court had allowed the mandate under the commerce clause. Instead, by asserting a government authority to tax specific behavior or non-behavior, the court has turned us all into chattel slaves — the thirteenth amendment, to the contrary, notwithstanding. For example, many physicians will find the practice of medicine more burdensome and less rewarding under Obumblecare. It is easy to imagine that some, perhaps many, will give up their practices. If a shortage of practitioners results, what is to prevent the government from taxing their retirement so heavily as to make their choice untenable. Such physicians would differ from chattel slaves how?

roberts rewrote the law for congress.
they say its not a tax.
he says yes it is, here you go, have at it.

One thing is certain: we need to amend the Constitution and tighten up Article 1, specifically Tax and Spend powers and the Commerce clause.

if they can tax you for living what (if left unchecked) can they do to you for not paying that tax?
https://twitter.com/conserv_voice/status/218456989523652608

Nixon famously said ,”We’re all Keynsians now.” Roberts can now say from the Chief Justice chair , “Judicially my court is a Living Document court.” ,”lt damn well means what l say.” l still believe as l said this morning the 3 lesbians got to him. l further believe he is now out of the closet as a fussy dandy. l do not mean queer.

When you rule that it’s ‘constitutional’ for the Federal Government to place what is effectively a permanent tax lien on my very body and existence…you are no longer a Supreme Court Judge. You’re a Supreme Ass in a black table cloth.

Henry Hawkins | June 28, 2012 at 5:44 pm

Can somebody with legal expertise vet this for me? It’s a column wherein the writer says that today’s decision means states cannot be punished for refusing to comply with Obamacare by withholding their existing Medicare funding. Clearly, several states will refuse to comply, therefore, how is Obamacare a ‘national’ healthcare policy if several states aren’t complying? And a question of my own, if the above is viable, would citizens in states that do comply, citizens who are dinged by Obamacare mandates, be able to sue on equal treatment grounds, as in “why do I gotta buy insurance when other US citizens, like those in, say, Texas, do not have to?”

The column is “Chief Justice Roberts Is A Genius” found here:

http://whitehouse12.com/2012/06/28/chief-justice-roberts-is-a-genius/

Here’s the money part of the column about states now being able to opt out:

“Finally, he struck down as unconstitutional, the Obama-care idea that the federal government can bully states into complying by yanking their existing medicaid funding. Liberals, through Obama-care, basically said to the states — ‘comply with Obama-care or we will stop existing funding.’ Roberts ruled that is a no-no. If a state takes the money, fine, the Feds can tell the state how to run a program, but if the state refuses money, the federal government can’t penalize the state by yanking other funding. Therefore, a state can decline to participate in Obama-care without penalty. This is obviously a serious problem. Are we going to have 10, 12, 25 states not participating in “national” health-care? Suddenly, it’s not national, is it?”

I’d like to hear from those who know law better than I before I get excited about this.

    lightning in reply to Henry Hawkins. | June 28, 2012 at 5:54 pm

    I don’t have a legal background but, in essence my understanding is that states abstaining vs. states participating will merely result in a funding hole. The reality is that businesses will drop private insurance and pay the tax. Medicare/Medicaid roles will expand greatly. Health care costs will skyrocket. The “tax” won’t cover costs, and so the government will institute a “medical” tax into existing payroll taxes to make up the shortfall. If I am wrong about them being able to do this feel free to correct me, but I don’t see it being unconstituional because each state has a choice – they are not being forced.

    that is different than taking your money though, that is related to state reimbursements.

Well the court found it constitutional. This isn’t the first time the Supreme Court has done something like this.

Now we amend the Constitution so that this sort of malarkey is clearly no longer Constitutional.

Question is, what do we change to bar them from doing this sort of thing?

“Rather than defer to the political process, the Court save the proponents of the legislation from their political decisions, and rewarded a corrupted political process whereby legislation was passed only because it was not sold to the public as a tax, yet saved at the Supreme Court because it was a tax.”

Excellently put. The whole thing is bizarre and perverse — the sort of outcome which smacks of appeasement. I think Roberts felt desperate to appease elitist opinion and to save his court from being stigmatized as having killed Obamacare. Like most appeasements, it will end up boommeranging back against the appeaser. Roberts truly has damaged “his” court.

Benedict Roberts, your place in history is assured.
I will not cry if you contract a horrible disease and die a slow, painful death from something even your cadillac insurance doesn’t cover. Karma, you treasonous bastard.

Legislators can lie. It’s allowed. When viewed as a tax, Roberts is understandable. It is up to the voter to decide if they’ve been had.

We need to start calling it the OBamaTax instead of ObamaCare.

dorsaighost | June 29, 2012 at 4:23 am

the mandate as tax wasn’t even argued or briefed … its like deciding a case on facts not presented …

[…] would be someone else’s blog—we’re scattershot. From Legal Insurrection: What is most disturbing is the judicial activism which took the Chief Justice from the Commerce […]

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