24 Hour Party People

There’s been a bit of an argument here between the lay people who typically thought the SCOTUS ruling would go 5-4 against ACA and the lawyers who thought it would go 6-3 or 7-2 in favor. Can we at least agree on this: that the level of partisanship the right is displaying is stung striking here, both from judges like Scalia who literally changed his mind about principle in order too oppose it, and from conservative activists who now brand Roberts a traitor.

The bill was based on a plan drawn up by the Heritage Foundation. And then 80% of conservative justices branded it unconstitutional.

If a Republican Congress had the bill, and a Republican president had signed it, how would the vote have gone, in your opinion? I’d especially like to hear from the lawyers.

125 replies
  1. 1
    MikeJ says:

    If republicans had passed it the Supreme Court ruling would have been 0-0. Nobody would have thought to say it wasn’t constitutional. It was a moronic argument.

  2. 2
    Violet says:

    False premise. If a Republican Congress has passed it and a Republican President had signed it there wouldn’t be any lawsuits. So no court case. Supreme Court wouldn’t have figured into it.

  3. 3
    Roger Moore says:

    If a Republican Congress had the bill, and a Republican president had signed it, how would the vote have gone, in your opinion?

    It wouldn’t have reached the Court. The Republicans wouldn’t have challenged it because it was their bill, and the Democrats wouldn’t have because they’d want to build on it the next time they were in charge. If anyone had challenged it, they would have been summarily shot down at the District Court level and been denied cert if they tried to take it any higher.

    ETA: Remarkable agreement so far.

  4. 4
    Valdivia says:

    there would be no case against it to go the Supreme Court so mute.

    @Violet: got there first.

  5. 5
    pragmatism says:

    there would be no lawsuits. any threatened lawsuit would be met with THE PEOPLE HAVE SPOKEN WHY ARE YOU TRYING TO UPEND THE WILL OF THE PEOPLE!

  6. 6
    birthmarker says:

    @MikeJ: It would have never been challenged.

    No lawyer.

  7. 7
    Gary says:

    If a Republican president had signed the ACA, the SC would not have upheld it for the simple reason that there would have no challenge to the law (or the challenge would have never reached the SC). If a Republican authored ACA had somehow reached the SC, it would have been upheld by a 9-0 vote.

    This is not a close call.

  8. 8
    Culture of Truth says:

    Romney is taking a week on to hang out in New Hampshire, and then is going to Israel and the Olympics this summer. It’s like he just doesn’t care anymore.

  9. 9
    Christian Sieber says:

    Yeah, I’m the 5th comment apparently but it is obvious that there would never have been a court case. If there somehow had been a fringe one to get to SCOTUS and they had heard it, it would have been 7-2 or more likely 8-1.

  10. 10
    gene108 says:

    If a Republican Congress had the bill, and a Republican president had signed it

    The SCOTUS couldn’t vote on it because the space-time continuum would’ve imploded on itself, from the shock that the Republicans would’ve passed legislation to help poor people.

  11. 11
    kindness says:

    Does this mean the right wishes the Heritage Foundation people to all get Colon Cancer too?

  12. 12
    Xecky Gilchrist says:

    If Republicans had passed, it, there would never –

    …HOW many? Yeesh. I need to read the earlier comments.

  13. 13
    nickgb says:

    I’d say 8-1. Thomas would still dissent on the grounds that the government is only allowed to count the chickens that flow between the states or whatever he believes anymore.

    Gotta give him credit, his hatred of modern democracy trumps his complete nihilistic tribalism. At least it’s an ethos…

  14. 14
    Rafer Janders says:

    Agreed. No lawsuits in the first place. Certainly there would have been absolutely no challenge from the right as to its constitutionality.

  15. 15
    birthmarker says:

    One of these days, when everything is finally privatized, taxes will become the greatest thing since sliced bread. It will be interesting to watch.

  16. 16
    Matthew Reid Krell says:

    That’s a really interesting question. Speaking as a lawyer AND a political scientist, I think part of the problem is that we’re assuming that the choice is between partisan hackery and principled legal thought.

    The institutional model of judicial decision-making suggests that BOTH approaches are, to a certain extent, correct. It says that judges are attempting to enact their policy preferences to the extent that they can; but that in addition to internal pressures related to the need to build majorities, judges are also constrained by external pressures in the form of institutional norms and prior precedent. Roberts is probably the textbook institutionalist, in that he is clearly attempting to enact an agenda, but feels that he has to do so in a way that at least purports to respect the norms and values of the Court.

    Cole’s subscribing to the attitudinal model, which basically views the Court as a miniature legislature, with judges entirely unconstrained to enact their policy preferences. And while this model explains some behavior (particularly Clarence Thomas’ and William Douglas’), it does not explain other types of behavior (such as Bill Brennan’s entire career, or the joint opinion of Kennedy, O’Connor and Souter in Casey).

    And Jan Crawford’s piece is an attempt to paint the behavior of the right-wing of the court in less strictly attitudinal lines. I can’t say I’m terribly surprised by it; one of the signs of a politicizing judiciary is that the courts increasingly come to resemble every other political entity – including by growing leaks.

  17. 17
    taylormattd says:

    Here is my opinion, as an attorney:

    If this had been a republican bill, signed by a republican President, there would have been no lawsuit in the first place.

    But if there had been a lawsuit, no trial court or appellate court would have ever held it unconstitutional.

    And even if it had been held unconstitutional by a lower court, the Supreme Court would have reversed 9-0, holding it was very clearly constitutional.

  18. 18
    Valdivia says:

    @Culture of Truth:

    but Israel! that really counts where he gets to hang out with Bibi and look macho. Is our Pres going to the Olympics? because I am sure it will be a waste of dollars for him to go but ok for Romney to go.

  19. 19
    danimal says:

    The lengths that a conservative will go to contort logic into the preferred policy of the day is quite impressive. They really believe 2+2=5 with their whole heart. Then, when the party line changes and 2+2=3, they are absolutely convinced they are right once again. Damned liberals just don’t understand math the right way…

    Every group of humans has this trait to some degree, but it is quite impressive to watch amongst American conservatives.

  20. 20
    anon-for-this says:

    I am a lawyer.

    The “law” ain’t got nothing to to do with this decision. It just provided a tool kit for the Justices to reach their decisions.

  21. 21
    catclub says:

    @Culture of Truth: When you get less popular the more you campaign, this is the only strategy that might work. The anti-campaign was patented by Newt ‘idea fountain’ Gingrich to deal with the same effect.

    If it includes a trip to the moon in October, optimal.

  22. 22
    birthmarker says:

    @Culture of Truth: But the SuperPac ads will roll on. Doesn’t Israel and the Olympics seem a bit…exotic…though?

  23. 23
    shortstop says:

    There’s been a bit of an argument here between the lay people who typically thought the SCOTUS ruling would go 5-4 against ACA and the lawyers who thought it would go 6-3 or 7-2 in favor.

    Not precisely true. The argument has been between selected lawyers who thought it would go 8-1, 7-2 or 6-3 in favor because a supermajority of justices was certain to opine on constitutional grounds, and everybody else: that is, everyone who argued that the court’s right wing might display rank partisanship to a larger degree than 6-3, whether or not the ACA was upheld. It’s just that the lawyers in question chose only to address the argument that the act would be overturned 5-4.

  24. 24
    dmsilev says:

    What everyone else said. Remember the history here. When the first legal challenges were brought, there was pretty wide agreement that the case against was bogus, and it took a full-court press by the entire conservative establishment plus some hard-core conservative district-level judges before most people started taking the challenges seriously.

    Absent an analogous all-out campaign by the powerful and pervasive liberal establishment (we will now pause for derisive laughter…), the mirror-universe version never gets anywhere near the Supremes.

  25. 25
    dr. bloor says:

    The case never gets to the SCOTUS, and the white Republican in the WH would be so far ahead right now it would make Nixon-McGovern look like a squeaker.

  26. 26
    MikeJ says:

    How many lawsuits were filed against RomneyCare in Mass? How many of those made it to the Supreme Court?

    That’s how many would have gone forward in the given situation.

  27. 27

    @Roger Moore:

    It wouldn’t have reached the Court.


    This is a Republican plan! Hellooooooooo! That they’ve done a complete 180 on this and are now calling it the “end of America as we know it — no exaggeration!” is the untold story of this entire fucking farce!

    Of course it would never have gone to the court. The only reason Republicans are opposing their own idea is for purely partisan political reasons. The Democrats cannot be allowed to have a win. End of discussion.

  28. 28
    General Stuck says:

    The bill was based on a plan drawn up by the Heritage Foundation

    True, but they weren’t the first to think of it. Though it was done by the HF under the spirit of propaganda, catapulted onto the political playing field, with a note attached. “This bullshit plan will self destruct in 5 seconds”. “not for making laws”. They never planned on a skinny black dude with funny looking ears to take it seriously, and build his ACA. 11 dimensional chess, played upside down, then dropped onto the wingnut SCOTUS. You can’t make this shit up.

  29. 29
    JPL says:

    @taylormattd: this

    I do have a legalese question, though. Why did the supreme court hear this case since no one was harmed yet?

  30. 30
    Odie Hugh Manatee says:


    mute =/= moot. ;)

    IANAL but as said above, it never would have made it to the SC. Dems would accept it as a starting point and whatever the Repubs do is always good and right.

  31. 31
    DougJ says:


    Exactly they’re our closest ally.

    And don’t forget the Jewish vote is in play.

  32. 32
    schrodinger's cat says:

    @catclub: Is the trip to the dark side of the moon?

  33. 33
    JPL says:

    @Valdivia: Romney saved the Winter Olympics with a government bailout. I can’t wait until Obama has an ad saying he wasn’t against bailouts for the Olympics.

  34. 34
    catclub says:

    @Matthew Reid Krell: “at least purports to respect the norms and values of the Court”

    This only applies to this case, when the entire country is reporting on the issue. Are there any other cases where he has respected these norms and values AND not voted his usual way – corporations first, government power over the individual second? Certainly not the CU and other cases.

  35. 35
    Lojasmo says:

    Yup. No court case. If it did, 7-2 for. Thomas and alto against because poor people get shivved. ETA because 9-11 and SHUT UP! THAT’S WHY!

  36. 36
    Valdivia says:

    @Odie Hugh Manatee:

    hhis. sometimes, these things just fly by and then I get very annoyed that I didn’t see them. /tries not to pout.

  37. 37

    There were a few that I recall (all against the mandate, as this lawsuit was), but very early on the cases were dismissed by our court system.

  38. 38
    SatanicPanic says:

    I have a problem. You’ve asked to hear from lawyers and because IANAL I really feel compelled to chime in. But sadly I have nothing to add.

  39. 39
    JPL says:

    @DougJ: Yeah right!

  40. 40
    dmsilev says:

    @Culture of Truth: I wonder whether Romney is going to the Olympics solely so he can point out that Chicago didn’t get the 2016 Games. It would certainly appeal to the cliqiue of elementary school children who appear to be the Romney campaign’s tactical team.

  41. 41
    taylormattd says:

    And let me add this: You will likely hear a consensus from folks that there never would have been a lawsuit in the first place, or the case never would have made it to the Supremes had this been a republican-passed bill.

    As I said above, I think that’s true.

    It’s also why you heard so many attorneys predict this would be a slam dunk case in favor of the law. The bottom line is that we all know the commerce clause law was exceedingly clear-cut for 100 years or so.

    It’s easy to poke fun at people for allegedly not perceiving the depth of republican Supreme Court Justice perfidy, but this really isn’t a case of naively hoping a republican will do the right thing. It is beyond shocking.

  42. 42
    Yutsano says:


    Is our Pres going to the Olympics?

    It’s not unusual for a friendly head of state to go to the Opening Ceremony, but I don’t think he went to Vancouver in 2010. Which is a shame.

  43. 43
    Odie Hugh Manatee says:


    I do the same durned thing…lol! You can tag me next time. :)

  44. 44
    Matthew Reid Krell says:

    Grumble. Am I the only person here who was told “Don’t fight the hypo” in law school?

    Everyone who’s saying “no lawsuit” is, of course, correct, but that wasn’t the hypo. So let’s actually discuss the hypo, because the point was to illuminate something about the Court.

  45. 45
    General Stuck says:

    Maybe Mitt will take Bibi for a ride on the Mormon spaceship

  46. 46
    dedc79 says:

    1) As others have noted, it never would have reached the Supreme Court because there would not have been a lawsuit
    2) I could see Thomas still voting the same way (he has been pretty consistently hostile to commerce clause jurisprudence since he was appointed), but that’s about it.

  47. 47
    David in NY says:

    Wait. I’m a lawyer who thought (after the argument) that it would go 5-4 against. Not that I agreed with the commerce clause argument against, but that the conservatives had come up with a distinction (inaction isn’t engaging in commerce) that would leave it open for the Court to limit the reach of the IC clause. And I thought they would; and they did.

    But as to the question, I think that the comments above miss the point that some asshole glibertarian would have balked at paying the “penalty” and would have sued to avoid it. And so it would have gotten to the Court. So that question has got to be faced. If Scalia had been faced with a Heritage-originated bill passed by Congress to avoid single payer, what would he have done?

    I think it’s pretty clear that Scalia was not such a man of principle (see the marijuana case) that he would have thought a bill passed in different political circumstances, to avoid passage of single payer, was constitutionally flawed. That is, this was politics all the way.

    Indeed, the constitutional questions here were not of great doctrinal moment — they’ll not likely arise again. They were only of political moment. The right won the doctrinal battle largely, but they’re whining because that really wasn’t very important (now or in the future). They lost the political war, and Anthony Kennedy or maybe Scalia is pissed off enough to be whining to the press. That is well and truly pissed.

  48. 48
    Valdivia says:


    not just in play, but already gone, doncha know it!

    I loathe loathe loathe Bibi with the passion of a thousand suns and this from having been around him up close and personal not just his odious politics.

    I hope they make something out of it, specially if Romney is going there to prove his Super Savior Credentials.

  49. 49
    EconWatcher says:

    Yes, I’m a lawyer, and I have to agree that it never would have gotten to the SC if it had been a Republican bill.

    As I commented on another thread, the case is just a slam dunk based on the power to tax and spend. It is really astonishing–and really crude and partisan–for four members of the Court to claim the law could be struck down because the penalty for violating the mandate was not labeled as a tax. That’s just nonsense, and they know it.

    The Court has never suggested that Congress has to identify which of its enumerated powers it’s using to enact a particular law. The question is, what does the law do, and does Congress have the power to do that (under any of its enumerated powers)? Substance controls. Labels don’t.

    I actually don’t agree that the case was a slam dunk under the Commerce Clause, because the Court had never addressed a case before in which members of the general public were required to buy something in commerce. There was at least a plausible question there. But under the tax and spend power, there was no question at all.

    Any pretense of Kennedy being a moderate should be gone after this. And the other four dissenters have surrendered whatever credibility they still had.

  50. 50


    I do have a legalese question, though. Why did the supreme court hear this case since no one was harmed yet?

    I was wondering that, myself.

    Especially since the mandate has now been labelled a tax, after all. A tax that no one has yet paid.

  51. 51
    Matthew Reid Krell says:


    PICS case (although there’s room for you to go “but that was different because it was about blackety-black kids and the schools where they don’t go”).

    Can’t remember how Roberts voted in the Cross Memorial on Gummint Land in Nowheresville case.

  52. 52
    David M says:

    Assuming the lawsuit made it, I don’t think there would be 9 votes to uphold, so probably 8-1 or 7-2.

  53. 53
    David in NY says:

    @Matthew Reid Krell: Thank you. I just showed that the hypo has a point, and how to face it (comment 45). I appreciate your introduction.

  54. 54
    Valdivia says:


    I remember Bush going but he was a lame duck by then and also simply lame, all the time

    I know if Obama goes he is lazy if he doesn’t he is insulting our athletes.

    /hope you’re doing ok [more hugs]

    @Odie Hugh Manatee:

    :D you got it

  55. 55
    JPL says:

    @General Stuck: Will he present him with magic undies?

  56. 56
    General Stuck says:


    Ha! maybe so maybe so.

  57. 57
    sharl says:

    Speaking only for the Honorable Justice Vaffanculo, there would be some kick-ass redefining of Original Intent in DougJ’s scenario, if that’s what it would take to uphold the legislation. Judicial Branch scholar Reuben Bolling illustrates some general principles of the matter here and here.

  58. 58
    catclub says:

    @Judas Escargot, Acerbic Prophet of the Mighty Potato God: because both sides wanted (or at least were willing to risk. NB: Do NOT gamble for money against Barack Obama) a quick decision, and the usual rules go out the window when the VSP on both sides want the same thing to happen.

    ETA: Obama could have insisted on the Anti-Injunction Act, which would delay any case based on tax issues until 2015 at the earliest. This decision was gutsy like the OBL raid was.

  59. 59
    dedc79 says:

    I should add that one of the first issues I remember discussing in law school was the bogus legal distinction that was sometimes made between action/inaction. To see five justices in the highest court in our country sign on to that kind of BS distinction is pretty depressing, even if we did still get the result we wanted.

    The dissent ignores the fact that we are all engaged in health-related commerce from birth, whether we have purchased insurance or not.

    In my second year of law school I took a course on administrative law that was taught by a very progressive professor. She nonetheless told us that she didn’t like the way much of the organized left had shifted from fighting to elect progressive candidates to filing lawsuits to challenge every law/regulation enacted by conservative governments. The answer she said, isn’t to sue, it’s to elect people who will repeal the laws you don’t like and who will enact the laws you do like. There’s admittedly some naivete there, but I think it does provide some necessary perspective given all the hysteria about the ACA.
    If republicans hate it so much, they should vote out the people who passed it. Too many people have come to think that the Constitution must have something to say about every law they dont’ like. That’s what was going on here. The right wing decided they didn’t like the law, so surely it must be unconstitutional. They nearly got a political Supreme Court to agree with them. The truth is that the constitution give a whole bunch of latitude to Congress to regulate commerce and to tax. It’s not unconstitutional to do so, and if people don’t like it, their best recourse is the voting booth.

  60. 60
    Yutsano says:

    @Valdivia: Between my uncle and back twinges I couldn’t handle work today. I’m gonna try to mitigate some of that damage with Saturday overtime. If I’m in town. If I leave Wednesday it’s borrowing from the retirement I go. Yay!

  61. 61
    Roger Moore says:


    When you get less popular the more you campaign, this is the only strategy that might work.

    That and continuing to carpet bomb the airwaves with ads about how Obama is the worstest President EVER. Mitt is clearly toxic, so the campaign has to be all about Obama all the time.

  62. 62
    Valdivia says:


    oy, hope you feel better and you don’t have to do that. [more hugs]

  63. 63
    Mark S. says:

    Where’s Oliver Wendell Burnsie to tell us how principled our conservative justices are and shut up, that’s why.

  64. 64
    David in NY says:

    Just think of this — the only reason the Republicans would have passed this would have been that they were afraid of something worse, single payer. So maybe the Democrats would have challenged it!

    What then? I say it’s constitutional. The Republicans are for it, because they’re scared and they’re political, and the Democrats are for it because 1) they’re Democrats, and they thrive on half a loaf, and 2) Democrats want Congress to have the power to do stuff, even if sometimes it’s not what they’d like.

  65. 65
    Villago Delenda Est says:

    @Southern Beale:

    The Democrats cannot be allowed to have a win. End of discussion.

    Not only that, the near guy cannot be allowed to have a win.


    Remember what the anal cyst that is Mitch McConnel said in 2009: The mission of the GOP for the duration of the next three years was to prevent the reelection of Barack Obama.

  66. 66
    gopher2b says:

    8-1 uphold it (within the tax power with Thomas dissenting (I don’t know what his basis would be but he would dissent)).

    I actually think the commerce clause justification would fall again 5-4. Scalia, Kennedy, and Thomas have been for rolling back the commerce clause for some time (under the Rehnquist court).

    That being said, they wouldn’t have even discussed the commerce clause because they would have upheld it as a tax power.

  67. 67
    Yutsano says:

    @Villago Delenda Est: He also just said 30 million people without health care is irrelevant. All that matters is FREE MARKET BITCHEZ!!

  68. 68
    birthmarker says:

    @Valdivia: If O goes it will suddenly cost a gabillion trazillion dollars.

  69. 69
    d says:

    Lawyer here–

    I was one who predicted 8-1, not because I thought Scalia and friends weren’t partisans, but because I thought they had at least some shame. Had it been passed by republicans, it wouldn’t have been granted cert, and no appeals court would have struck any part of it down (at the District Court level, its possible that some old nut would issue a provactive ruling for fun, but there’s no way it would survive appellate review).

  70. 70
    slim's tuna provider says:

    @Matthew Reid Krell: i note that to TRULY not fight the hypo, you’d need to not only assume that the lawsuit would have been brung and gotten to the supreme court, but that the entire federalist party establishment, including the formidable Paul Clement, would have taken up the banner. that’s a hell of an assumption, but let us make it.

    in that case, i argue the vote would be 5-4 upholding the constitutionality of the mandate under the commerce clause. roberts and the libs would join in an opinion written by ginsburg (roberts would want a show of bipartisanship). the three piglets would dissent, and kennedy would dissent separately. the tax argument would be ignored, as it is beside the point.

    why? the liberals would vote in a principled manner. roberts would play for team republican, and in any case he knows what the right constitutional answer is. the three piglets would dissent because a) they know roberts would cover their ass by upholding b) they want to throw a good old fit c) they would assume (correctly) that this wasn’t really a “republican” bill, but something republicans were forced into (which is true of romneycare). kennedy would dissent because he doesn’t like to be lumped in with the piglets.

  71. 71
    Sinister eyebrow says:

    @Judas Escargot, Acerbic Prophet of the Mighty Potato God: My Con Law is lost in the mists of time, but what you’re pointing to is the question over whether there was standing to sue (no injury, then you do not have standing to sue). If I remember correctly, and this is really oversimplified, the argument was that the injury was going to be great and widespread when the law took effect and therefore the potential injury was imminent. That gave the plaintiffs standing to sue.

    Like I said, I may be wrong because I don’t play around with the federal constitution in my practice so I don’t remember much of the more arcane procedural stuff surrounding these cases. I think that’s about right, though. If you’re really curious, take a look at the beginning of the majority opinion. Usually, that is where questions of standing are resolved before moving on to the real meat of the case.

  72. 72
    Valdivia says:


    I am sure and it will be the first time ever a president did anything like that, and why isn’t he focusing on jobs!

  73. 73
    pat says:

    If a Republican Congress had the bill, and a Republican president had signed it, how would the vote have gone, in your opinion?

    In what universe would this bill have come out of a republican congress???

  74. 74
    Roger Moore says:


    That’s what was going on here. The right wing decided they didn’t like the law, so surely it must be unconstitutional.

    There’s obviously a bit more to it than that. The right wing dislikes ACA, but they know that a huge amount of it is popular. They know they can’t kill just the unpopular parts (mostly the mandate) because the whole thing genuinely depends on them. That leaves them in a quandary. They can’t let the bill live because it will give the Democrats a win and hurt their insane anti-government program in the long term. They can’t kill just the unpopular parts because it would create a mess, and they damn well know it. So they have to kill the whole damn thing but not have their fingerprints- or at least not the fingerprints of anyone who’s worried about reelection- on the murder weapon. A court challenge by people other than elected Republicans is the best chance of getting what they want.

  75. 75
    burnspbesq says:


    Because Internal Revenue Code Section 5000A is a tax for purposes of determining the scope of the taxing power, but is not a tax for purposes of the Anti-Inkunction Act.

    No editorial comment. I’m just telling you what happened.

  76. 76
    David in NY says:

    @pat: If, as I hypothesized above, they were scared of something worse — single payer. That was the context in which Heritage invented it.

  77. 77
    Some Loser says:

    @Roger Moore:

    They know they can’t kill just the unpopular parts (mostly the mandate) because the whole thing genuinely depends on them. […] They can’t kill just the unpopular parts because it would create a mess

    When has that ever stopped them? Teabaggers know no constraints and are willing to tank the economy for a political win. I don’t think that they care if they damage the poorer folks’ healthcare as long as they win.

  78. 78
    scav says:

    BJ: Call for an argument and everyone agrees.

  79. 79
    David Koch says:


    If republicans had passed it the Supreme Court ruling would have been 0-0. Nobody would have thought to say it wasn’t constitutional. It was a moronic argument.

    exactly. no one would have sued. period. and if by chance some crank did, it would have been dismissed for lacking standing and on the merits on summary judgment.

  80. 80
    burnspbesq says:

    Essentially what David in NY said.

    Randy Barnett believes so firmly in his anarcho-libertarian view of the Constitution that he would likely have paid the penalty on his 2014 return, filed a refund claim, and sued when his refund claim was denied. I don’t know whether his case would have been appealable to the D.C. Circuit or the Fourth (because I don’t know whether he lives in the District or the ‘burbs), but he would have lost in either circuit, and it’s highly unlikely that his petition for cert would have been granted.

  81. 81

    @Southern Beale: and @Villago Delenda Est:
    Whether you think it’s the letter after his name or the color of his skin, it’s ‘Obama cannot be allowed to win, ever.’ Everything he tries must be blocked, everything he succeeds in must be destroyed, anything he likes must be vilified. It’s beyond politics at this point and into psychosis. They want to make an example of him, in a ‘sow the ground with salt’ way.

  82. 82
    David in NY says:


    I think JPL’s question was more like a question about standing (who can sue if nobody’s hurt?) or ripeness (when can a suit be brought if nobody’s been hurt yet?). And, I think the answer is that a party has standing if they are likely to be injured by the law and ripe if it’s clear how that’s going to happen. That is, if a law clearly threatens you, you don’t have to wait to seek an injunction against it. Except in tax cases, with respect to which, Burns has given the answer.

    I must say, that I met a charming senior judge of the Second Circuit about two hours after the decision was announced, and he was chuckling about the portion of the opinion as to which Burns has no comment.

  83. 83
    David Koch says:

    @burnspbesq: the case did go before the DC Circuit and none other than Laurence Silberman upheld it on the commerce clause.

  84. 84

    @taylormattd: That pretty much sums up my view as well. Though my license is inactive, so it’s not clear whether you’ll count me among the lawyers.

  85. 85
    Kristin says:


    Same here.

    I feel like the Supreme Court’s decisions, especially on these highly charged political matters, have little to do with legal precedent or constitutional analysis. Being a lawyer provides remarkably little additional insight.

  86. 86
    sb says:

    @taylormattd: FWIW, a friend of mine who is a lawyer and a Republican said exactly this when I asked him about it.

  87. 87
    birthmarker says:

    @Valdivia: It writes itself…

  88. 88
    Kerry Reid says:

    @Culture of Truth: Now now, we all know he’s going to Israel to find out the names of more Holocaust victims that the Mormons can posthumously baptize.

  89. 89

    Since we’re doing thought experiments here and “if the shoe were on the other foot,” think for a second what the right wing would be saying were one of their major policy initiatives, passed by Congress and signed by POTUS and upheld by SCOTUS, now still under attack by the Left.

    They’d be saying “ENOUGH already,” and “SORE LOSERS,” and “GIVE IT UP,” and “Surrender Goreothy” and on and on and on.

    I’m just really curious why we aren’t hearing that now?

    Don’t answer that.

  90. 90
    Kristin says:


    Oops, I misread a comment to which I replied. Posted on the mobile site, and can’t edit.

  91. 91
    David in NY says:

    @burnspbesq: Couldn’t we put together a panel of the Fourth that would have struck it down, if Barnett sued? I bet there’s one.

    But you’re right, it probably only goes up if some circuit struck it down, and if it’s a Republican bill — well, it isn’t only the Supreme Court that reads the election returns.

  92. 92
    ericblair says:


    Because Internal Revenue Code Section 5000A is a tax for purposes of determining the scope of the taxing power, but is not a tax for purposes of the Anti-Inkunction Act.

    Does this make any actual sense, or is this just results-oriented hairsplitting? I can see Roberts using this argument to save his ass: you’d think that if the mandate was constitutional only as a tax, the Anti-Injunction Act would prevent the court from ruling on it yet, and the whole matter would have ended up in total chaos.

  93. 93
    burnspbesq says:

    @David Koch:

    Silberman’s concurrence is Seven-Sky was a big part of the reason why I continued to believe that Kennedy wouldn’t go on walkabout. It’s one of the best Commerce Clause opinions I’ve ever read. And it was written by a judge who is a rock-star in Federalist Society circles.

    It’s also why I am confident that I can predict how the D.C. Circuit would rule in my hypothetical Barnett v. United States.

  94. 94
    Turgidson says:


    8-1 uphold it (within the tax power with Thomas dissenting (I don’t know what his basis would be but he would dissent)).

    He’d just say “This BS is unconstitutional. Go DIAF other justices. Recuse this, assholes.”

    And that would be it.

  95. 95
    David Koch says:


    It’s easy to poke fun at people for allegedly not perceiving the depth of republican Supreme Court Justice perfidy, but this really isn’t a case of naively hoping a republican will do the right thing. It is beyond shocking.

    but there’s no difference btwn Bush and Gore.

  96. 96
    David in NY says:

    @Southern Beale: A Republican “major policy initiative?” They do policy?? Other than reducing taxes?? That’s too hard a thought experiment for me.

    I think there’s some Democratic “time to move on,” which is a polite version of “SORE LOSER!”

  97. 97
    burnspbesq says:

    @David in NY:

    One of the lower-court cases that the Supremes sat on while they decided NFIB v. Sibelius was decided on standing. Not 100 percent certain, but I think it was Thomas More, in the Sixth.

    They denied cert on Friday in all of the cases they were sitting on.

  98. 98
    Yutsano says:

    @Turgidson: So no real difference from his actual dissent then.

  99. 99
    GxB says:

    Who’s up for some CALVIN BAAALLLL!?! Well the SC of course. Setting aside all the “Never would have happened” and all, when was the last big name case to go 9-0? So I’d go 7-2 with Scalia and his sock puppet are always ready to stick a knife into the lesser merkins. IANAL (but the therapy sessions are working wonders – fingers crossed)

  100. 100
    birthmarker says:

    @taylormattd: There may have been some little lawsuit, but the big money would not have been there to push through. Would have died a sad little death.

    BTW, who funded the plaintiff battle on this? Was it a consortium of states?

  101. 101
    burnspbesq says:


    I’m the wrong guy to answer that question. I thought all the cases should have been dismissed on Anti-Injunction Act grounds. It says what it says, and there is an unbroken 50-year chain of cases that say it’s jurisdictional.

    That would have just pushed the day of reckoning back three or four years. Somebody would have paid the tax on their 2014 return and sued for a refund.

  102. 102
    Z says:

    “Scalia who literally changed his mind about principle in order too oppose it.”

    I bet he announced that book (in which he reverses himself on the Raich marijuana case to justify a commerce-clause opposition to Obamacare) while Roberts was still batting for his team. At that time, it would’ve been a triumphant book explaining the invented constitutional and common law history and the clear limits of Federal power that any objective person would see. Now it’ll just be a whiny screed that prevents Scalia from supporting authoritarian invasions of private behavior and warns of what’ll happen if Mitt Romney makes the next appointment (Justice Randy Barnett, I bet).

  103. 103
    burnspbesq says:


    BTW, who funded the plaintiff battle on this?

    Check the caption. The named plaintiff is the National Federation of Independent Business, the small-business lobbying group that routinely fucks its own members on behalf of big business and the rich.

    If you really want to hear me rant, get me started on NFIB’s role in the politics of the estate tax.

  104. 104
    David in NY says:

    @burnspbesq: The Sixth considered standing and ripeness (sua sponte, I think). It appears that they had two possible problems — 1) it was too early to sue and 2) nobody would really be hurt because the mandate couldn’t be enforced. The second is really weird.

    They upheld it, however.

  105. 105
    burnspbesq says:

    @David Koch:

    but there’s no difference btwn Bush and Gore.

    Sure there is. One of them is an ex-Deciderer, and the other one should be an ex-Deciderer.

  106. 106
    Ruckus says:

    It’s easy to poke fun at people for allegedly not perceiving the depth of republican Supreme Court Justice perfidy, but this really isn’t a case of naively hoping a republican will do the right thing. It is beyond shocking.

    It seems some of the lawyers must still have a belief in the law. Those of us in the trenches most likely lost that a long time ago. That to me is why so many of the non lawyers were not expecting ACA to remain standing.

  107. 107
    tjmn says:

    @Culture of Truth:

    Palin’s not begging to go to Isreal with mitt? She might think it is a short bus ride.

  108. 108
    Omnes Omnibus says:

    Knowing what I know now about how the real voting went down, I would predict the Court would uphold it 7-2 on the tax argument with Thomas and Alito dissenting. Prior to the decision coming down, I would have predicted the same result.

  109. 109
    Heliopause says:

    Echo the others that this would never have gone to the SCOTUS. Oh, and I’m still looking for the last honest conservative who admits that this had zilch to do with Constitutional principles and was 100% a tribal war. If anybody has a link to such a person I’d appreciate it.

  110. 110
    dollared says:

    Thanks for trolling us lawyers, Doug. Nobody ever asks us our opinion :-).

    I agree with the no-Republican lawsuit gang, and the libertarian nuisance lawsuit on the penalty.

    I’m still waiting for someone to raise and resolve the lawsuit of Hamsher v. Gonzalez (I’m sure he’ll be Romney’s AG): That the mandatory payment to a private entity for health care is a violation of, er, -the 13th amendment!

  111. 111
    Omnes Omnibus says:


    Nobody ever asks us our opinion.

    Can you really blame them?

  112. 112
    chopper says:


    for me, it was mostly the overconfidence in some dicksacks who swore up and down that no other prediction could be right but theirs, who ended up being off. apparently having a law degree does not make you some sort of fucking mindreader when it comes to a court packed with partisan d-bags.

    what can i say, when you’re right 52% of the time, you’re wrong 48% of the time!

  113. 113
    ChristianPinko says:

    Doug J — “stung” or “stunning”?

  114. 114
    shortstop says:


    It seems some of the lawyers must still have a belief in the law. Those of us in the trenches most likely lost that a long time ago.

    I wouldn’t say that, speaking only for myself, of course. It may be more accurate to say that we have no ego or self-worth invested in the court’s integrity, although we have quite a lot invested in what it decides! Without getting into identifying details, lawyers are a significant portion of my client base. I work with too many brilliant and highly ethical attorneys–pretty much all of whom, including Republicans, are appalled by the form and content of the ACA dissent–to believe that a rogue SCOTUS represents the end of the rule of law. But the situation is deeply frightening and the problems it presents are huge.

    The question is what the rest of the legal profession can or will do about it, now that the fears that have been around since Bush v Gore have been confirmed to honest and clear-eyed lawyers.

  115. 115
    Omnes Omnibus says:

    @chopper: OTOH, 80% of the cases in front of the Court this term were decided by a 6-3 or greater majority. The odds weren’t that bad. I know this case was different, but there really isn’t as much disagreement on cases as some might think.

    The full Scotus Blog Stat Pack is here. Full of interesting things.

  116. 116
    xian says:

    @Culture of Truth: i started thinking this healthcare watershed could be a turning point (the whole “they didn’t erase him, like a female pope, from history – healthcare is going to stand”) in the election and i may go back to my old view that Romney was just this year’s Bob Dole.

  117. 117
    pluege says:

    the fact that republicans can be so rabid on both sides of the same issue displaced only by a small amount of time, changed only by who supports the issue demonstrates how thoroughly vacuous, soulless, valueless, and devoid of integrity republicans are.

  118. 118
    BTD says:


    Exactly correct. Just blogged that response at Talk Left.

  119. 119
    Steve says:

    I’m late to the party, but I agree with all the lawyers and non-lawyers alike. Here’s a piece of evidence: when Congress passed the Partial-Birth Abortion Ban Act, it was of course challenged on Roe v. Wade reasons, but nobody – liberal or conservative – even bothered to argue in court that it exceeded Congress’ authority under the Commerce Clause. It was just obviously a loser argument. When the case finally got to the Supreme Court, there was a lonely concurrence by Justice Thomas sadly remarking on the fact that no one had brought up the Commerce Clause.

    Of course, the hypothetical is silly because the GOP never would have passed a bill like the ACA. Even though, yes, it was the Heritage Foundation plan. Even though, yes, Bob Dole co-sponsored the same thing in 1993. The ACA may have been a Republican idea, but Republicans never wanted to pass it, which is why nothing of the sort got proposed during all those years when Republicans ran the government. They just came up with the idea because once upon a time the GOP thought it was important that they look like they have a plan too. Of course that’s no longer a requirement.

  120. 120
    Ruckus says:

    I probably should enhance my post that it is not just the courts that I believe a lot of people see as failing. It is the entire system. Police, prosecutors, courts, and legislators. The war on drugs, 3 strikes, racial profiling, NYC stop and frisk, partisan judges who seem to have little respect for precedent and legal theory, CA prison guard unions, partisan lawmakers with no respect for the majority of citizens. I could probably go on for a while but our country seems to be running aground. I know it is a roller coaster but the up button seems to be broken. I don’t wonder why people feel like this, I wonder why more don’t.

  121. 121
    James E. Powell says:

    I’m very late to this discussion, but I agree with the ton of people, above, who say that if ACA had been a Republican president’s program, it would never have come to court. At least not on the question of whether it was constitutional. Which is what is most disturbing, or rather frightening.

    Despite the fact that our very recent history demonstrates that Republican policies don’t do any good for anyone but the very rich, despite the more or less open bigotry of most of their arguments, they remain a far more potent force in public policy debates than the Democrats.

    They adopted a completely bullshit argument on the commerce clause. One that almost no one recognized as valid under existing constitutional law. And they damn near pulled it off. They took a law that has many very popular provisions and turned the majority of the country against using lies and more lies. And it worked.

    Disturbing and very frightening.

  122. 122
    cmm says:


    Mitt Romney!! Why do you hate America?????

  123. 123
    someguy says:

    The nice thing about this case is that this finally puts the stake in the bogus right wing “enumerated powers” argument.

    Roberts & the moderates made it clear that Congress may not have the power to do something under the Commerce Clause or any other particular clause, but if it wants to raise taxes (for any purpose), to spend money (on any purpose), direct people to do something (for any purpose), or direct the states to do something (so long as it’s financially proportional), it may do so under the General Welfare clause. The basic principle is the guy who pays the bills gets to order dinner. I’m sure the Republicans will get very comfy with this newfound power as soon as they take it out for a spin.

  124. 124
    Julia Grey says:

    I think there’s some Democratic “time to move on,” which is a polite version of “SORE LOSER!”

    When do WE get to start saying, “Get over it!”?

  125. 125
    Caz says:

    I’m a lawyer and here’s my opinion. The SCOTUS would hold differently if it were a republican bill, which is the problem here. The Supreme Court is supposed to uphold the law, not vote according to politics. That’s why the justics have life-long appointments. It’s sad that no corner of government these days is separate from partisan politics. The Supreme Court should have been the last bastion of fair, objective analysis and decisions, but even they now are beholden to politcal games.

    There are three taxes in the Constitution: income, excise, and direct. This penalty fits none of those definitions. The Supreme Court basically invented a new constitutional tax in order to uphold the law, which is abhorrent.

    Income taxes, which the penalty purportedly is, are triggered by income and based on the level of income. The penalty is triggered by non-purchase of insurance, and is not based on income levels. That’s it in a nutshell. It’s similarly not an excise tax or a direct tax. Read this for a more detailed analysis of constitutional taxes and the mandate:


    Roberts didn’t want to expand the commerce clause, because that would have essentially eliminated any limits on federal power, rendering the constitution powerless. So he sided with the liberals on expanding the taxing authority of the govt, and in so doing created a new form of tax not present in the constitution, in order to avoid political fallout for the court.

    It’s a terrible, non-constitutionally based, politically charged opinion that will wreak havoc in the decades to come on all sorts of legislation and exercise of federal power. It’s a major loss for America, because now politicians can pass all sorts of penalties and laws as taxes disguised as other things.

    I have lost all respect for the institution of the Supreme Court because as a group they have sold out to politics and now have no credibility when it comes to constitutional analysis. When the court creates a totally new form of tax that is not in the constitution, it makes the Court just another partisan, political hack entity that can no longer be trusted. It’s a sad day in America, folks.

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