Slow news day, I guess.
I’ve only spent about an hour looking at the ruling and all the reactions, but I think the big takeaways so far are:
1.) I’m surprised it was upheld, especially since the swing vote sociopath Anthony Kennedy voted with Alito, Scalia, and Thomas to overturn the entire damned thing. On that count, I was wrong, but not by much. People who thought this would go 7-2 or 6-3 just don’t get how crazy these guys are.
2.) The 90% of the Constitutional scholars who thought the mandate was clearly constitutional under the Commerce clause failed to recognize how radical the right wing of the court is. Who knows what future mayhem they intend to engage in as they re-write the last century of law?
3.) I get the sense that Roberts looked at what would be a disastrous 5-4 overturn of the law and gladly grasped on Dellinger’s tax penalty argument.
4.) I actually tuned in to Rush Limbaugh today, and he said, in all seriousness, that “freedom met it’s death panel today, and it was the United States Supreme Court.” It made me giggle.
5.) I honestly think that Roberts only bought the tax argument because he knew his legacy was on the line.
6.) The biggest thing is thank goodness all the people who are benefiting from ACA will continue to be able to continue to receive medical care.
I still maintain, even though this was upheld by the slimmest of margins, that this court is completely dysfunctional and under control of the most radical justices of my lifetime. Did anyone actually predict that the commerce clause would be struck down, but Roberts would keep the mandate on life support with the tax argument?
*** Update ***
From volokh.com:
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.
That’s what I think happened. I think Roberts was initially going to vote with the other four and flinched, grabbing on to the tax argument lifeline.
eldorado
i tuned in to a bit of public radio and some am talk stations and apparently this is a loss for obama (and good news for john mccain)
funny how it works out like that, everytime
pk
So you felt that you did not deserve to be too happy.
TenguPhule
Whelp, now we know who to try, convict and execute for being completey corrupt motherfuckas.
David Koch
I want to thank everyone who made this possible: Grover Norquist, Jane Hamsher, John Boehner, Americans for Prosperity, Fixxed News, Hate Radio, Sarah Palin, Joe Wilson, Mark Halperin, the Khmer Rouge purity police, The New York Times, Fred Hiatt, and the corporate media. We couldn’t have done it without you guys!
4-Mo-Years!
4-Mo-Years!
4-Mo-Years!
4-Mo-Years!
4-Mo-Years!
Both Sides Do It
The Commerce Clause ruling as precedent isn’t actually that bad, because it rests on the “regulating existing activity vs. creating new activity to regulate” distinction, and there’s not a whole lot of other markets or situations in which that reasoning would be applicable.
Though, as Cole points out, the fact that the justices actually endorsed this reasoning marks them as the most reactionary and politically-motivated group of SC jurists in a long time.
MattF
I just stumbled onto this:
http://acalitigationblog.blogspot.com/
No idea about their politics, but they appear to be experts.
Tonal Crow
I was unsure about the Commerce Clause, but nearly convinced it would be upheld under the tax-and-spend Clause.
gopher2b
I tend to agree with #5. I never thought Roberts would kill the whole thing for that very reason. I did think he would kill the mandate, however.
ericblair
According to MSNBC, “galvanized GOP vows full repeal.” I didn’t know that someone had already taken the goopers and dipped them in molten zinc, but, hey, works for me. At least their healthcare will cover the burn ward. In 2014.
beltane
I will never understand the right’s argument that “freedom”=inability to obtain health care. The type of chronic, low-grade terror caused by our old health care system is the very antithesis of freedom.
For once I am grateful to Justice Roberts. I have no doubts whatsoever that Rehnquist would have gladly sided with Scalito in condemning tens of thousands of Americans to an early death.
nickgb
Well, most of those scholars also thought that the court would rule incorrectly on that issue.
Otherwise, totally agree. Roberts voted to uphold it as a purely political decision to preserve the court, against his own legal theory. Have to give him credit for that, I suppose, though in the long run it probably will just further show that the Court is political in nature.
Tripod
A liberal is just a conservative with a chronic health condition. Roberts has epilepsy.
@eldorado:
They can spin away, but this is a big fucking deal for Democratic election enthusiasm/turnout.
joes527
I agree that “This proves the court is a-OK” is a misinterpretation.
OTOH, “Scalia can suck it” did seem to be a repeated motif in a number of the decisions.
That ain’t all bad.
David Koch
the gopers just gave a presser on CNN and you should have seen their distraught, sullen faces.
Also too, Halperin just slashed his wrists on MSNBC
kindness
Where you traveling John? Which lucky BJers can buy you a drink to celebrate on this auspicious day?
BJ flash mob commencing in 10..9…8..
TenguPhule
indeed, his place in line for the wall is now 5th instead of 1st.
Brachiator
Good enough for me.
Roberts realized that he had to do something to protect the integrity of the Court. And he may also have decided that it was going to be the Roberts Court, not Fat Tony’s Originalist Palace and House of Wingnutery.
NonyNony
@Both Sides Do It:
Perhaps, but I do like the idea that this decision means W’s privatization scheme for Social Security would be unconstitutional according to Scalia, Thomas, Kennedy and Alito.
Mandating that people buy a private retirement account or face a penalty does sounds suspiciously like mandating that people buy private health insurance or face a penalty.
But what do I know – I’m not a Supreme Court Justice.
nickgb
@David Koch:
Suddenly I see the downside to universal health care…
gian
Its probably just me, but I find the whole thing somewhat surreal. A right wing horror freakout because they got what was their plan from the 1990s.
schrodinger's cat
You have a math typo, should read 7-2. Since we do not have 11 justices.
Valdivia
To counter a bit though, in arguments Roberts already asked questions in this vein. And various people at arguments made mention of it. So it’s not like he pulled it out of his ass at the last minute. He asked about it in oral arguments and sounded like he bought it.
MattF
Easy to say this in hindsight, but I had a feeling that something shifted in the voting after the oral argument. Thought it would be Kennedy, though.
Pangloss
I agree that (on this and Arizona) Roberts could see “The Roberts Court” becoming a cynical punchline and decided to try and gingerly grab his legacy out of the bonfire.
Harlan T. Fescue
I have ventured out on these Internet tubes to this Peasant blog in order to gauge the reaction of lesser creatures to the abomination that was birthed today from what is supposed to be Our Supreme Court. I am unsurprised to find the moocher scum celebrating Communism’s final victory over America.
@beltane:
This is because you do not understand freedom and expect that somehow its blessings should be bestowed upon the likes of you and your Immoral Peasant peer group. When We talk of Freedom, We mean Our Freedom, and it is most certainly imperiled by your ability to obtain health care. We are at Our Freest, to be perfectly frank, when you and yours are one serious life event away from either total financial ruin or (fingers crossed!) death. Anything more than that degrades Our Status, as Tyler Cowen noted, and thus Our Freedom to be better than you.
nickgb
I want to know more about the three justices who didn’t join in Roberts’s commerce clause dicta and didn’t join in Ginsburg’s attack on that dicta. A lot of missing votes on the issue, if I’m reading it correctly.
beltane
@David Koch: They had the champagne on ice waiting to be uncorked only to have their Big Victory snatched away. Couldn’t happen to a nicer bunch of assholes, and that goes double for the nasty Tea Trash who vote for them.
The fake fake al
For a while it was the Scalia court. Now its the Roberts court as it should be.
He must have said at the last minute that he would not punk 50 million people, but its not a give away, they have to buy insurance or get a penalty.
Obama is doing a Clinton, hijack a GOP idea and use it to solve a real problem.
Bravo, well played.
Jewish Steel
@kindness:
Mr Misanthrope claims to shun all commenter fraternization. But legend says he flies out to the homes of his favorites, cooks dinner, does the dishes, passes out brandy and cigars and vanishes in the morning save for a faint trace of sandalwood and lavender.
Legend says.
Omnes Omnibus
@Valdivia: The tax-and-spend argument has been discussed quite a bit here. I don’t think any of he lawyers who comment here saw any problems with that argument.
MikeJ
@NonyNony: Social security privatization would be clearly unconstitutional if a Democrat suggested it. Dipping the poor in plastic to make a hard coat, hollowing them out, and using them as piggy banks is clearly ok as long as the idea is put forward by a Republican.
Schlemizel
As if Obama or the threat of “deligitmizing” the USSC would have any impact on those 5 very small people. It is to laugh.
My assumption using, occums razor, is that Fat Tony sees anything that disagrees with him as dissent and he writes that way.
schnooten
#5, I think, is absolutely right.
lamh35
@David Koch: was there much blood, is it bad that I hoped Halperin bled out.
I’m not at all surprised by the sour faces on GOP, Boehner with his “let’s not spike the football” memo from last week and Romney’s joking last night about how the WH “wasn’t sleeping well” last night are now faces with eh fact that not only did ACA survive, but it survived because of the CONSERVATIVE CHIEF JUSTICE sides with the liberals.
The bars in DC betta be on look out for Boehner. He’s going on a bender for sure!
Roger Moore
@joes527:
From your mouth to FSM’s noodly appendages.
foggy follansbye
From the Scalia dissent: “The issue is not whether Congress had the power to frame the minimum-coverage position as a tax, but whether it did so.”
In other words, even the dissent acknowledges Congress had the power to do something like ACA but did the wrong incantation. In a functioning democracy, reversing for that technicality might be okay, because Congress would just fix the label.
In our current environment, though, it meant these four justices were willing to let people die because Congress used the wrong label.
Ripley
I smell a blogospheric manifesto in the making.
joes527
@Both Sides Do It:
Aren’t there some “Growing POT is a federal issue” decisions that sit on the commerce clause and hypothetical activity?
I’m sure that the hair won’t split in that direction.
Roger Moore
@NonyNony:
It’s different by the all important IOKIYAR doctrine.
schrodinger's cat
@Harlan T. Fescue: Are you Sarah’s brother?
ETA : I mean the one who is a front pager on this blog.
Punchy
“circles” apparently now a euphanism for “Kaiser Permanente”, “United Health Care”, “BC-BS”, etc.
NR
He probably got a phone call from the CEOs of Aetna and Wellpoint, telling him he’d better protect their guaranteed profits.
Anyway, I called this a long time ago. You’re all welcome. The mandate stays, and our transformation into a wholly corporate-owned state continues unabated.
Now let’s start taking bets on who our next mandatory corporate payments will be to.
Valdivia
@Omnes Omnibus:
yes just last night we talked about it! and I saw mentioned too by Frakt, the guy at TPM, and Cohn. It was also mentioned during oral arguments and Roberts responded well to it. So I think the rumors now that he voted no and then switched to yes at the last minute seems like just talk. That Volokh article says that there were rumors that he voted yes but was under immense pressure. Didn’t we just got told over and over there are never leaks? So how come all of a sudden people knew this since May? That he was a lock to bring the whole thing down and then just recently changed his mind. Sounds iffy to me.
Kay
@Valdivia:
IIt was in the DOJ brief. Valid under the commerce clause (I) and/or valid under tax (II).
Culture of Truth
Consider: Roberts voted to curb federal power twice, in significant ways, even as he votes to uphold the ACA.
stratplayer
I suspect that for Roberts it was not just his desire to protect the reputation of the Court and his legacy, but it was also that he was just plain spooked by the furious radicalism of the ACA’s opponents, especially that of his intemperate colleague Nino. In authentic conservative fashion, he decided it was necessary to put the brakes on the runaway right-wing train.
Hoodie
Self-protection is a sign of sanity. I think a lot of people are overstating Roberts’ ruling on the Commerce Clause. He didn’t go there because he didn’t have to with the taxing power argument, and the ambiguity of the mandate may have been there by design to give him precisely that out. He basically gave a nod to Wickard, which is a favorite whipping boy of the right, so I can’t see any basis for any major rollbacks of existing federal regulations or any new regulations that look like them. Even the Medicaid funding part gives the feds wiggle room to coerce state cooperation, especially if you take into account that states opting out of the Medicaid funding will still be paying for it.
The most you can take out of the Commerce Clause opinion is that Congress can’t enact a mandate to purchase something. Actually, I don’t mind that, I always thought the tax approach was better. It doesn’t necessarily mean the beginning of an unraveling of Commerce Clause jurisprudence, as much as wingnuts might wish it. The SG had argued that the basis for allowing the mandate under the Commerce Clause was that the health care market is unique, which it is. If that’s the case, then worrying about this particular dicta on the Commerce Clause is probably silly because this type of situation is very unlikely to arise in other contexts. The mandate is a Republican idea for preventing free-riding to begin with, using the state to coerce people to fill private pockets. What Roberts does legitimize is taxing non-compliers to offset federal costs in providing subsidies.
Don’t go looking for a loss where there isn’t one. Obama won because Roberts looked around and realized the other four
conservativesRepublicans on the Court are batshit crazy and he didn’t want to be one of them.trollhattan
@ericblair:
Since galvanizing involves dipping in molten zinc, I’m wholly in favor of a galvanized GOP.
Roger Moore
@beltane:
It’s very simple. Freedom is a zero sum game; there’s only so much to go around. The only way to make “those people” more free is to make the wingnuts less free. Once you understand this basic principle, you’ll see why Freedom (for the wrong kind of people) is Slavery (for the right kind of people) and vice versa.
Amir Khalid
Off-topic: I disabled ad blocker because you asked so nicely the other day. So now I get the Malaysian ads. You have no idea how boring Malaysian ads are.
Culture of Truth
Exactly, this was about labels. You have to read the dissent to get a full flavor of what went down here.
trollhattan
@beltane:
This is as sweet as the Lakers losing a game seven, nomsayn?
Ash Can
@Harlan T. Fescue: I lol’d. Good stuff. (The handle cracks me up too!)
schrodinger's cat
May be its not so complicated Roberts does not want to be associated with the lunatics that right wingers have become, or probably he just does not want to be on the losing side. He can see that Romney campaign has FAIL written all over it.
shortstop
“The 90% of the Constitutional scholars who thought the mandate was clearly constitutional under the Commerce clause failed to recognize how radical the right wing of the court is.”
Sure, but except for Ginsburg, the left wing of the court rejected the clause as well.
Valdivia
@Kay:
that’s what I thought and Roberts did seem to engage it already in oral arguments. I have no idea what went down but I find it funny that after all the assurances of secrecy it turns out all these people knew Roberts voted to bring everything down and ‘people’ changed his mind. I am sure there was much lobbying between justices and argument, but the sound of the conservatives on this is of conspiracy so I am sure before long they will be saying Obama threatened him :)
Mike E
@Culture of Truth: Roberts looked into the abyss and saw himself staring back…I think he just gave the president an oath-over.
Culture of Truth
Roberts gave the wingers a small government ruling. Then he said, “if you don’t like the law, repeal it. judicial restraint dudes”
schrodinger's cat
BTW has anybody been to the conservative websites? Are they in full meltdown mode? What about Fox bots on TV, what are they saying?
trollhattan
@Amir Khalid:
A darn shame. It’s all guns and naked babes all the time, here.
MoZeu
John, the Commerce Clause was not struck down today. Don’t worry, it’s still in there:D But in seriousness, even the rejection of the gov’t CC argument is technically dicta. I realize that it has impact, but remember it is dicta. Of course, Roberts has a long game in mind in which his Court undoes half a century of progressive legislation under its CC reading, but if Obama can win a second term and one of the conservatives step down (or whatever), then Roberts could be foiled. I agree with you that Roberts saved the law only because of his concern for his legacy. Kennedy, I am convinced, sat on the fence until it was clear which way Roberts was going and that Roberts would write the majority opinion, and then just went with Scalito and Thomas so that he could write the lead dissent opinion.
JPL
One of the excellent commenters on this very site mentioned that the penalty is exactly the same as a tax credit but in reverse. He/she explained that it could be considered a tax and by not ruling for it they would endanger policies they like. I wish I could give credit to the person but whoever you are stand up and take a bow.
Steve
I don’t why people (including the “experts” at volokh.com) keep calling it Scalia’s dissent. It wasn’t published as Scalia’s dissent, it was published as a joint dissent by all four dissenters. To my eye, it doesn’t read like a Scalia dissent; in fact it’s nothing like Scalia’s spittle-flecked dissent from the immigration case that came down just the other day. And apparently Justice Kennedy was the one reading from the joint dissent in court this morning.
Culture of Truth
@Mike E: What’s funny is the dissent is not legally shoddy. I may not like it, but they make some sense. They call their buddy John out becaue he flinched – they know it, he knows it, and they want him to know they know it. LOL
Tonal Crow
@Culture of Truth: The labelling argument has no foundation in precedent. The Courts have never required Congress to enumerate the powers supporting its statutes, nor have they ever estopped Congress from arguing powers that it had not cited. Also too, Congress isn’t a party here; HHS is. It is unclear whether a hypothetical estoppel against Congress would also operate against HHS and the Solicitor General.
Tractarian
Yup. The “joint dissent” absolutely reads like a majority opinion. (I’m a lawyer and I write appellate opinions for a living, so I should know.) In fact, two pieces of evidence indicate that, when it was originally written, this WAS the majority opinion.
First, note that the dissent is NOT authored solely by Scalia. Instead, it is a “joint dissent” authored by all four dissenting justices. You can see that in the use of the pronoun “we” throughout the dissent. This is rare. Usually only majority opinions use the plural first-person pronoun.
Second, look at this discussion in the dissent (on page 25 of the slip opinion):
(My emphasis.) The dissent is saying that construing the mandate as a tax “would force us” to decide whether the Direct Tax Clause applies and then says that “we have no need to address the point”. But of course they must address the point – since the majority of the court has, indeed, construed the mandate as a tax. In fact, Roberts addresses the point and concludes that the mandate does not offend the Direct Tax Clause.
To me, it’s clear what happened here. This opinion started out as a majority opinion; Roberts defected; then law clerks were asked to edit the opinion to make it a dissent. They just forgot to edit this paragraph.
trollhattan
Am I ever glad we traded this putz.
http://www.buzzfeed.com/ktlincoln/nba-player-thinks-obamacare-ruling-makes-america-c
David Koch
This is tooooooooooooooooooooooooooooooo fucking rich!
Jeffery Toobin who originally began the panicked freak out in March, after oral arguments, saying ACA was Doooooooooooooooooooooomed, is on CNN right now saying, he knew all along ACA would be uphelded.
BWHAHAHAAHAHAHHAHAHAHHAHAHAHAHHAHAHAHAHHAHAHHAHAHAH!
shortstop
@Steve: Anyone else surprised that Scalia didnt write his own dissent? I’m running around and on my phone, but I’m looking forward to reading Thomas’ two-page opinion (as well as the other three) when I settle in this evening.
Ash Can
@trollhattan: I guess we all know what your Google history looks like…
JGabriel
John Cole @ Top:
Maybe. However, Brian Beutler over at TPM correctly predicted that the tax argument might win all the way back in March 2012, during oral arguments:
Gotta give credit where credit is due. And the fact that Beutler correctly predicted this line of argument suggests that Roberts may have been planning to take this route all along.
.
.
ReflectedSky
@Tripod: Roberts having epilepsy is irrelevant, since he has health care for life. (I agree with that basic principle when it comes to conservatives, though — no empathy, no policy vision, just self-interest.)
This has seemed pretty obvious to me for a while, and came down exactly as I expected (and other BJ commenters, IIRC) — there’s a little 10th Amendment crazy sop to the crazies, but overturning the whole law would have been handing a gun to the Dems, overturning the mandate would have pissed off his true constituency (Big Business) and so, being the political animal he is, he ruled that constitutional legislation was — SURPRISE! — constitutional, and is content to let Citizens United work its magic.
Omnes Omnibus
FYWP! I wrote a fucking paragraph on my iPhone and you tell that there was a problem with my post because it might be too short? You are not my editor. Anyway, the comment was brilliant and incisive.
shortstop
@shortstop: Meant to say “rejected the CC argument,” obviously not the clause itself.
Tonal Crow
@trollhattan: Cool! Please Republicans don’t stop screeching now about Communism! Americans are ACHING to be told that they’re Leninist Trotskyite Stalinist Islamist traitors because they want to be able to take their kids to the doctor without going bankrupt.
MoZeu
@Hoodie: Agree.
MoZeu
@Hoodie: Agree.
Valdivia
@JGabriel:
yes, this is what I was referring to. It may be that Roberts was on the fence, or changed his mind (or got blackmailed by Obama, as I am sure RedState will begin saying soon) but the argument was there from the beginning and Roberts engaged it.
Tonal Crow
@Omnes Omnibus: Next time write it in the margin.
shortstop
@Tractarian: Interesting. Thanks for that.
@Omnes Omnibus: All you have to do is hit “publish” a second time.
EconWatcher
Maybe this is wishful thinking, but I wonder if Roberts realizes already that they really screwed the pooch on Citizens United, and if that has made him gunshy about further radical rulings.
By the way, it will take the Court a while, and we’ll be awash in a sea of corruption, but eventually Citizens United will be overturned. Things are going to get so grotesque that even a lot of wingers will blanch.
trollhattan
@Ash Can:
I maintain they pull ad topics from the comments (such a feisty bunch). That’s my story and I’m stickin’ to it.
Mike E
@trollhattan: Dammit! )-:
As a devoted Philly fan, I think I’m gonna go out and throw a battery at Santa Claus
Enhanced Voting Techniques
I suspect it was lot more than Obama after Roberts. As it’s been pointed out everyone and not just consumers is getting something good out of ACA.
dave
@NR: Waaaah, Waaahh, Waahh, It’s not single payor, Waaah, Waaah, waah, christ! it’s a huge step in the right direction even if I did want more, millions more people with coverage, my 23 y.o. covered if he doesn’t get a job, pre-existing cond. covered, donut hole disappearing for my father. I was sure we were going to lose it all and I’m damn glad we didn’t.
Surreal American
Impeach
Earl WarrenJohn Roberts!!!Tonal Crow
@EconWatcher:
I dunno about that last sentence, but if the Court overturns CU, it’ll be because of an expose on hidden foreign cash constituting some large percentage of expenditures in some high-profile election.
Omnes Omnibus
@Hoodie: I agree. The CC bits in the Roberts opinion will not have a huge effect. Also, I expected that Roberts would go for the most limited holding he could justify. Fuck it, I know a win when I see one.
Mike E
@dave: My daughter gets nine more years. Huge.
Steve
@shortstop: Thomas’ opinion is pretty boring, it’s more of a technical point to remind us that he still has an even more radical view of the Commerce Clause than everyone else.
Kathy in St. Louis
I absolutely believe that the 90 percent of constitutional scholars who spoke for this law as constitutional did influence how this came out. Since the court had no where to hide on this one, Roberts voted as he did to save the court from being held as a totally political entity under his leadership. This was self-serving for his legacy, but who cares? I hope that this gives Obama a second term so that he can be the one who appoints replacements for Scalia and whomever else retires in the next four years.
I still expect some havoc from the court, whether over voting rights or the right of the Catholic Church to bend employees to their will on contraceptive coverages.
eohippus
I posted this in another thread, but since someone asked what winger reactions were…
Because I love der schadenfreude, I spent the morning reading Freerepublic threads about the ACA decision. It was mostly what you’d expect:
You forgot about sharia!
It’s all about the tranny.
Their tears are all very sweet, except the idiocy. Since Roberts called it a tax, the next rallying cry will be “Obama passed teh evial taxxors111!”
The election just got weirder.
Mike E
@JGabriel: Credit where credit is due, also: watch CNN for Jeffrey Toobin’s spluttering defense of his rather vociferous smack down of ACA a few months ago. Too.
ericblair
@Tonal Crow:
My thought too. Wait until the Saudis or the Chinese bankroll a federal campaign, because xenophobia trumps all other winger considerations.
Kay
@Valdivia:
People seem to “get” the tax argument.
We have a (conservative) magistrate here (they’re all conservatives here) who said to a wingnut lawyer who was ranting and raving on how he was “forced” to do one thing or another under the dreaded Obamacare, “because I get a tax advantage on my mortgage doesn’t mean you have to buy a house”.
He’s has a very deadpan delivery, so it was fun to watch sputtering wingnut try to come back from that. You could almost see the wheels turning: “property owners, GOOD, tax advantage, GOOD,…. Obamacare, BAD”
Heliopause
I’ve been reading and viewing this opinion expressed this morning and I’d like to know why we have to assume that Roberts is capitulating to political pressure. Is there any evidence for this speculation? Even Scalia and Thomas have surprised us every once in a great while by voting from principle rather than ideology. Maybe Roberts is slowly and genuinely moving away from his own extremist ideology after listening to Scalia babble about broccoli and catching Thomas in the john masturbating to Atlas Shrugged. Or maybe this is a three-off (not a one-off because Roberts sided with the non-insane justices on another decision today; three in one week, wow).
Both Sides Do It
@joes527:
The case you’re referring to is Raich, in which the Feds were granted jurisdiction over policing pot growers that California had gone easy on.
The Commerce Clause issues in that case were mainly an extension of those in Wickard; instead of an interstate wheat farmer growing wheat for himself instead of selling it on the market, there was a pot grower who sold intrastate and was growing dank for her own use. In both cases the Court’s reasoning turned on the grower’s effect on interstate commerce; in Wickard it was immediate, and in Raich it was “never more than an instant” from affecting interstate commerce. In both cases the fungible nature of the product was noted, too; a unit of grass consumed or distributed interstate is a unit not passing through interstate commerce.
There are non-insane arguments against that reasoning, but it’s a fairly reasonable and logical extension of established Commerce Clause doctrine which takes into account the nature of the markets being regulated. None of that characterizes the Commerce Clause arguments from the wingnuts today, even if they are dicta.
trollhattan
Scott Lemieux highlights some zingers in Ginsburg’s concurrence, including a destruction of the dreaded broccoli mandate.
http://www.lawyersgunsmoneyblog.com/2012/06/ginsburgs-concurrence-the-gift-that-keeps-giving
Hoodie
@Valdivia: Yeah, and that argument is one that elevates substance over form. I’ve only read the opinion once, but it comes across as pragmatic, albeit on the conservative side. It’s almost channeling O’Connor. I think Roberts felt some tribal loyalty to the wingnuts, but he knew doing what the radicals wanted would be a clusterfuck of epic proportions.
catclub
@EconWatcher: “even a lot of wingers will blanch.”
and they are already pretty pale.
Valdivia
@Kay:
I love also how all the people yelling about the highest tax hike in history. really? how? insurance will be cheaper thanks to ACA. and it will only affect those who decide not to buy insurance. I guess logic fail is not something they are grappling with yet. :)
@Hoodie: my thoughts exactly.
trollhattan
@Valdivia:
And since the “penalty” is now a “tax” only to be paid by those who choose to voluntarily forego insurance–a number that’s not going to be all that large–how big a tax are we really talking about?
Tokyokie
I wonder if Fat Tony’s tantrum the other day on the Arizona immigration case might have helped Roberts decide he wanted to be on the other side.
Valdivia
@trollhattan:
the penalty is not even very big. Drum (I know DougJ!) ran some numbers on the penalty versus getting insurance with the subsidy for families over the medicaid expansion and under a certain income and they were very small.
I also guess that if the penalty is the biggest tax hike in history, Romney did the biggest state tax hike in history too no?
Mike Lamb
@NR: So what’s the constitutional/legal distinction between universal health care/single payer and the mandate? Presumably, the former would be paid by automatic withdrawals from a paycheck like FICA.
Kay
@Valdivia:
Don’t you feel as if Republicans have sort of lost the thread on taxes? Hurt their own cause? They so clearly now are protecting (exclusively) higher income people. They have told us repeatedly that most people pay NO taxes, they’re constantly whining about that. We don’t have “skin in the game” like, ya know, they do.
Now they’re going to turn around and say this is an onerous burden that no one can bear? That (relatively) small slice of people who aren’t insured now, are above 133% of poverty, and want to decline the 400% and under subsidy and not buy in? That’s their big tax outrage?
David Koch
YES! WE! CAN!
YES! WE! CAN!
YES! WE! CAN!
YES! WE! CAN!
YES! WE! CAN!
YES! WE! CAN!
Culture of Truth
Sam Malone, to Diane:
“I was following you until your name became Blanche..”
ReflectedSky
@Mike E: Wait, what? I don’t watch CNN, and I know Jeff’s a sell-out, but I went to college with him, and he’s not an idiot. Did he actually claim that the ACA was UNCONSTITUTIONAL? If so, I wonder how many vacation homes/mistresses he’s paying for…
Ash Can
Kind of in a hurry right now and not checking to see if this has been covered here or not (apologies if it has), but, via commenter NJDhockeyfan at LGF, a couple of gems:
CNN News Staffers Flipping Their Shit Over CNN’s Fuck-Up
AP Tells Staff to Stop Mocking Other News Outlets for Blowing ACA Coverage
ETA: That second head does contain a link. And haz Tunch eated anyone else’s editing buttons, or am I just
tastylucky?Tonal Crow
So tell me now “Justice” Scalia: if pot seeds blow into someone’s backyard, sprout there, and the occupant doesn’t care for the plants, but only harvests and smokes the stuff, isn’t that “inactivity” that’s beyond the federal government’s power to penalize?
Kay
@Valdivia:
One of my sisters sent me a nice email. She said “we” (people in this country) needed some
proof, some assurance, that we could actually DO something, that our government wasn’t hopelessly broken and mired and stuck, just endlessly fighting the same health care battle since the 1990’s.
I think she’s right. It would have been so depressing to contemplate had they stopped any attempt at reform TWICE.
Valdivia
@Kay:
yes, absolutely. First it was death panels, etc, now it’s a tax. if they are explaining they are losing I think. And now they will have to explain. A lot. and make no sense. :)
Also a very simple point, made by Josh at TPM and I was glad to see it as no one is making it: winning looks like winning.
Obama had a big win, no matter what the pundits in DC say.
The Republicans lost. No matter how much they all want to say it’s now the issue of the century for them.
In reality when you win you look like a winner as Obama does today, with the conservative Roberts in his support.
JGabriel
__
__
Heliopause:
I don’t think we to speculate that Roberts voted against his own ideology here. There was always a pro-industry argument to be made in favor of the mandate — insurance companies get money from: everyone!
And Roberts never votes against corporate profits.
.
Kay
@Valdivia:
I agree. I also think people want to vote for the person who is going to win. Which is why I never understood the theory that goes “people are complacent, so we have to keep insisting he’s doomed”. I don’t think it’s true.
“Winning looks like winning”, and that’s appealing to people, understandably.
Valdivia
@Kay:
I liked what your sister said. It also gives us something that we know his election will guarantee.
trollhattan
TBogg reads Ben Shapiro, so we don’t have to.
Love the “no exaggeration” finish. It’s like a two-year-old yelling, “I’m not hitting you” while hitting you.
http://tbogg.firedoglake.com/2012/06/28/silver-linings-golden-horseshoes/
General Stuck
Of course, Roberts valued more the legacy of the court he is chief justice of. But it goes beyond that, way beyond, the floodgates of hell, if he’d eaten that apple. The fact that he arranged the crime scene as best he could to have his cake and eat it to. Is not relevant. He did what he did because not to would have not only been wrong, not to mention cruel snatching health care from the grasp of 50 million Americans, it would have been a fubar hell with wingnuts lining up to undo progressive America, one social pact law at a time. The fact that he justified it by calling the mandate a tax, is all but meaningless, and CONFINED TO FUNDING commerce clause actions to regulate an industry, not the prime reason of the law that are those regulations imposed on a national basis across state lines. Those were left in tact, and you can’t justify those by any tax claim. They are pure commerce clause stuff, and not one thing more or less.
The REAL mandate here are those regulations every state must now adopt, as well as the insurance industry. I learned this working for another commerce clause law for regulating per environment laws passed by congress.
dollared
@Heliopause: No. He got the votes he wanted to nail down that the federal government is very limited and he will use them to attack fundamental goodness, such as cap n trade.
He is not a winger. He is a corporatist. He is not reasonable. He is for private profit at public cost. ACA meets that goal, so good on it.
Tonal Crow
@trollhattan: I wonder how long it’ll be before the first high-profile wingnut says that this decision is “worse than Hitler”?
trollhattan
@Tonal Crow:
Somebody should aim a camera at Krauthammer and follow him around. My guess is he’ll let slip before cocktail hour.
scav
Here’s a quote I’ve been looking for a place for since I ran across it. Does well enough here.
Jane Addams
patrick II
My favorite reactions have been from McConnell and Graham — “Obama lied to us — he said it wasn’t a tax! and now we find out it is”.
Assholes, you didn’t vote for it anyway…and it’s Roberts who is calling it a tax.
Mike Lamb
@patrick II: Seriously–the comments that Obama lied are funny. The Admin explicitly avoided calling it a tax and didn’t argue that it was tax–that was, I understand, an argument referenced in the dissent. Roberts called it a tax, and suddenyl Obama lied.
Heliopause
@JGabriel:
@dollared:
Just want to make clear that I am not adopting the position that Roberts is turning into a liberal, I was offering an example of something as speculative and likely as “responding to the heat from President Obama.”
Roberts does indeed have quite a record of backing private interests, but since private interests are divided on what they think of ACA it’s still problematic to interpret Roberts’ decision strictly through this lens.
James E. Powell
Although the Republicans are ‘galvanized’ and, we are assured, that the decision is good news for Mitt Romney, I am struck by how much the right-wingers were, apparently, confident that the whole thing would be declared unconstitutional and how shocked they are that it was upheld.
tommo
Keep in mind when fully implemented in 2014 there will still be 26 million Americans with no healthcare.
But we are one step further towards joining the rest of the civilized world. Good work Dems and Obama!
Repiglickers (“We hate healthcare! We hate healthcare!”) burn in hell.
General Stuck
Most commerce clause laws passed do not require something like the individual mandate was. They are pure regulatory, and funded by the general fund to run whatever federal agency is needed to administer those national regulations with primacy over previous state laws, or no laws at all. The ACA was different because it was based on direct regulation of economic activity of a service, in attempts to manage cost and expand the service to those who were rejected, or couldn’t afford the service to begin with. With great national economic ramifications that is the health care industry. And where private industry and states had fallen short on that. The health care industry was about the last leg of the New Deal stool, in that regard, and there shouldn’t be much more to it, until we get to the point that the profit incentive is squeezed out so much, private industry doesn’t want to fuck with it anymore. some say this is a shadow purpose of the ACA, or the more direct cause and effect that would have been the PO. I don’t know if that is true, or will be true. But now it has the opportunity to lead us that ways, for a vital service not suited for the free market model, like every other country has figured out in the western world. And could be achieved with enough stealth and slowness, to not bring on some kind of economic jolt causing angst and instability. just thoughts
burnspbesq
@shortstop:
Nope. They all mostly joined Ginsburg’s concurrence.
burnspbesq
The key thing to remember (well, one of the key things to remember) is that everything Roberts wrote about the Commerce Clause is DICTA.
burnspbesq
Sad to see Cole double down on his original error.
How hard would it have been to say “Burnsie, you’re a douchebag, but you were right?”
General Stuck
@burnspbesq:
I know it’s not the same, but allow me.
Burnsie, you’re a douchebag, but you were right
KS in MA
@Brachiator: Also, I like to think Joe Biden went over to Roberts’ house last night with a f*ing big stick.
burnspbesq
@EconWatcher:
That’s hard to reconcile with the summary reversal in American Tradition Partnership on Monday.
burnspbesq
@General Stuck:
Thank you, Stuck. That warms the cockles of my
heartnozzle.General Stuck
Why do you think Kennedy and the dissenters, started their dissent declaring their belief the entire law is unconstitutional? Because Roberts noodling around the tax canard with the individual mandate, was only a lame face saving attempt. The dissenters know this, and shitcanned the whole thing not in compliance with the commerce clause, and thusly unconstitutional. regs and all.
AA+ Bonds
Volokh: a dumbshit on purpose
salacious crumb
this must be a tough day for ABL, Mnemosyne and eemom..they will now have to go into a psychoanalytic overdrive to determine if Roberts is a racist because seems like he now helped Dear Leader Obama’s cause.
AA+ Bonds
“If so, was Roberts afraid of magic wizard powers? It has yet to be determined” –an actual real professor at UCLA Law
AA+ Bonds
Like, never quote Volokh
IowaOldLady
If you’re looking for ways to explain ACA to your co-workers or relatives, reddit has a nice summary:
http://www.reddit.com/r/explainlikeimfive/comments/vb8vs/eli5_what_exactly_is_obamacare_and_what_did_it/
AA+ Bonds
As far as I can tell the SC voted narrowly 5-4 today to allow Congress to pass laws
I’m . . . not so thrilled for our future
Mike E
@salacious crumb: Nope, it’s your nightmare, sport. Enjoy.
AA+ Bonds
I assume everyone is still all fired up to impeach Scalia (do it)
Steve
@burnspbesq: I don’t think the dicta point is particularly relevant. To the extent any of these issues recur (which will probably be never, in the case of the Commerce Clause issue), I expect lower courts to follow what Roberts said on all the points where he got 5 votes.
John Cole
@burnspbesq: Did you not even read the post?
Now, you show me where you thought it would go 5-4, because if I remember your prediction, it was 8-1.
Omnes Omnibus
@John Cole: If I recall correctly, you thought the ACA would be overturned because HACKS! People who got the end result right were closer than you were. A 5-4 win is a win.
elm
@burnspbesq: Burnsie, you are an asshole and you were wrong.
Let me refresh your memory:
Anyway, 5-4 on taxation grounds vs. 7-2 on Commerce Clause: what’s the difference?
burnspbesq
@John Cole:
You misremember.
You blew the call because your theory of how courts as institutions go about their business is completely at variance with reality. Deal.
John Cole
@Omnes Omnibus: And you read the dissent offered up from the four today and came to a conclusion other than hacks? What color is the sky where you are?
John Cole
@elm: Because shut up, that’s why.
Omnes Omnibus
@elm: Where in that quote did burnsie say anything about the CC? I saw a prediction that the mandate would be upheld – it was- by a 7-2 vote – it was 5-4.
burnspbesq
@elm:
Fuck off. That was the most likely outcome based on the data that were available at the time. If you don’t get that, I can only ascribe that to ignorance of how the legal process works.
Omnes Omnibus
@John Cole: Blue with some clouds. The hacks didn’t win, did they? I am rather shocked that Kennedy was part of the dissent, but my expectations for Alito and Thomas were always that they would act like hacks. Scalia is an asshole who can occasionally surprise people, but Roberts had the legitimacy of his Court at stake.
General Stuck
Jeebus Cole, give it a rest, you were wrong and Omnes and burns were right, and I was wrong too, until it dawned on me that Roberts could not open Pandora’s Box and not be consumed by it as the Chief Justice. Kennedy is just a thumb sucking whack job, that probly takes a hour just to decide to take a piss. The parsing by Roberts with the tax thing is all but meaningless in the real world.
burnspbesq
Did I expect that five Justices would buy into Randy Barnett’s crackpot, anarcho-libertarian theory of the Commerce Clause? No, I didn’t. Neither did the vast majority of smart lawyers. But that theory has been percolating in the legal academy for a couple of decades, and it’s not outside the range of rational ways to think about the Commerce Clause. And Barnett’s briefs are extremely well written.
The data don’t support your hypothesis, Cole. Get a new hypothesis.
General Stuck
Picking nits with the final vote tally, is picking nits. The money prediction was uphold or strike down.
elm
@General Stuck: When somebody’s been making detailed predictions about which justices will rule which way for over a year and was dead wrong, then it’s time for him to eat crow.
@burnspbesq: I love you too
burnspbesq Says:
General Stuck
@elm:
Maybe a small side dish of Sparrow. The crow is dedicated for those who predicted the law would be struck down, at least if they are not going to admit they were wrong.
It’s kind of creepy, you becoming a Burn’s full time personal troll, though thoroughly consistent with commerce clause of precedent and Balloon Juice tradition. That’s what I tell all my personal trolls, but they never listen either.
Mnemosyne
@salacious crumb:
Ladies and gentlemen, the case against legalization of marijuana.
elm
@General Stuck: Three posts make me his personal troll, after he spent 18 months bludgeoning people with his brand of knowledge and expertise?
My prediction on this case was wrong as well (I expected 6-3 to uphold or 5-4 to overturn). I expected Roberts to follow Kennedy (upholding if and only if he couldn’t convince Kennedy to throw it out). The Roberts/Kennedy split surprises me and the exact manner of the split surprises me more.
Omnes Omnibus
@elm:
You certainly went out on a limb.
General Stuck
@elm:
So Burn’s is a douche, I already stipulated that. But he was right the law would be upheld. Sure as shit. I don’t know why anyone would do a tales I win, heads you lose, with a prediction both ends of the stick. I think a SCOTUS vote, once it’s been determined as up or down, is like a congress vote, folks scurry around to find pol cover. I don’t think that matters very much.
General Stuck
@Omnes Omnibus:
hey!
shortstop
@burnspbesq: Yes, my mistake. I was running around most of the day, had trouble getting anything to load and hadn’t read the opinions yet; I was under the erroneous impression that only Ginsburg had used the CC.
Now, about you and Omnes’ revisionist history…let’s review.
Both of you argued repeatedly, often with gratuitous rudeness and misplaced condescension, that the ACA would be upheld because it was simply impossible for other than a huge majority to recognize the constitutionality of the act. Many of your comments noted the partisan bent of the justices, but insisted that when push came to shove all but an outlier or two would base his or her opinion on the law and precedent, leaving behind political thinking. Burns repeatedly predicted 8-1, Omnes 7-2, with at least two of the justices who joined the dissent today landing in your “uphold” column. The outcome of the act being upheld was only part of your predictions; both of you went out of your way to insist that your expertise would prove your actual justice counts to be correct.
After oral arguments, despite both of you insisting that these are not indicative of outcome (on that point you were on solid ground), both of you were spooked enough to revise downward. Still, both of you were completely certain that it wouldn’t go below 6-3. Burns in particular brayed that he’d eat his out-of-style hat or something like that if it went 5-4. There was more insistence that the justices at large could not fail to acknowledge the ACA’s constitutionality.
Well, four of them didn’t. And as Burns himself noted earlier, Roberts may have been a hair’s breadth away from joining them and opining like a partisan hack instead of a principled jurist. While all of us are thrilled that 300-plus million people will not have to suffer from this very close vote going the other way, it’s obvious to everyone else here that the court is well stocked with people who now can brazenly opine outside the realm of the constitution and precedent.
That should be of concern to both of you–it should be more important to you than trying to salvage your demonstrably fragile egos. If either of you had any grace or dignity, you’d acknowledge that your original–and even your revised–predictions were based on the assumption that almost all of the justices would conduct themselves with integrity, and that you have now learned that at least four of them will not, even under circumstances on which virtually all constitutional scholars agree.
Burns’ reaction is no surprise; he’s renowned here for his dishonesty and patent inability to admit error. Omnes, you’ve worked hard and parsed carefully to keep daylight between you and Burns, but you just filled it up with darkness. Really, I’m embarrassed for you. Would it have been so hard to say something like this? “We predicted the final outcome correctly and we’re very glad of that. But we were very wrong about the depth of political motivation going into the decision and the number of justices who would be subject to that politicization, and this concerns us.”
General Stuck
@shortstop:
Your comment is probly the most pathetic I have ever seen from someone I thought would know better. Jeebus, you sound like some kind of Mother Superior with the nannfied scolding. The “shithouse lawyers” were right on this one case, deal.
Omnes Omnibus
@shortstop: Actually, my prediction was 6-3 (with Alito, Thomas, and a Justice to be named later voting against) I recently named Scalia as that Justice. I have expressed surprise and shock several times today that Kennedy voted the way he did. The fact that I thought that three Justices could vote against shows that I am well aware that some Justices “brazenly opine outside the realm of the constitution and precedent.”
I went out of my way to insist that my expertise would prove my actual justice counts to be correct. Link?
“There was more insistence that the justices at large could not fail to acknowledge the ACA’s constitutionality.”
Guess what. That is what happened. A majority voted to uphold the law. It is still law.
Oh, yeah, bite me.
elm
@Omnes Omnibus: At least I didn’t spend 16 months shoving my wrong predictions down everybody’s throat, insulting everybody who disagreed, bragging about my particular competence, and generally making a fool out of myself. That’s more than I can say for some people here.
Omnes Omnibus
@elm: I suppose you have a point, but, given that, why do you hang out here? What you described is pretty much the MO around here. Ain’t it?
Robert Waldmann
” Did anyone actually predict that the commerce clause would be struck down, but Roberts would keep the mandate on life support with the tax argument?” Well “predict” is such a strong word, but I (and many others) did stress that it was a possible outcome.
Also I’ve argued for years that the 16th amendment largely repealed the 10th (which is my reading of what Roberts just wrote).
Omnes Omnibus
@shortstop:
@Omnes Omnibus: FWIW, I did get pissy with people in the run up to this decision, but I would suggest that it was not over the exact number of Justices that would vote one way or another, but rather what I perceived as the tendency of many people, including the blog owner, to simply assume that the Court was going to make a completely political decision and overrule the ACA. People were virtually in mourning over a decision that had not yet happened. Your opinion may, of course, differ.
elm
@Omnes Omnibus: Why do I hang out here? It’s more fun that trolling the Paultards on reddit and the quality of trolling @ Crooked Timber has declined recently. Mostly, though, I’m just in it for the snark.
Omnes Omnibus
@elm: What about the pet pics?
eemom
Dear John Cole,
Bwaaaaahaaaaahaaaaaahaaaaahaaaaaa.
love and kisses,
eemom