Dear American Conservtives...

[malasadas.livejournal.com]

This might have escaped your attention yesterday, what with liberal gloating and conservative outrage over the Supreme Court upholding most of the Affordable Care Act. In fact, many conservative commentators have been roaring for Chief Justice Roberts' head on a pole, but I think that they have missed something awfully important about yesterday's ruling.



Victory #1: Commerce. Chief Justice Roberts joined the Court's conservative faction in rejecting the argument that the Commerce Clause gives Congress the power to REQUIRE individuals to purchase health insurance. Despite many claims to the contrary, the Commerce Clause is no more expansive today at 10am than it was yesterday at 10am.

Victory #2: Spending. Under its spending authority, Congress has required all sorts of behavior from states in return for receiving federal money. By striking down the provision in the Medicaid expansion that required states to join in or lose all of their Medicaid funding, the court put a limit on how Congress can use its spending authority to coerce behavior from the states. If the sources I listened to are correct, then it is the FIRST time the Court has ever struck down such a requirement and Roberts did so with a majority that crossed the ideological divide on the Court.

Victory #3: Judicial Restraint. It may not look like it to opponents of the ACA, but by seeing the penalty as a tax, thereby upholding the mandate and not joining the conservative Associate Justices who wanted to strike down the entire ACA, the Chief Justice exercised judicial restraint.

The penalty for not carrying insurance is very arguably a tax like many others the tax code enshrines around behavior. Is the child care deduction a tax reward to those who have children or a tax penalty to those who do not have children? The answer to that question is very much a matter of which side of the deduction you sit on, and while the penalty is indeed called a penalty, it is progressively laid and economically no different than the myriad of deductions in the code meant to incentivize behavior from tax payers. Under that guise, the individual mandate is such an incentive via the penalty, and whether you like the government doing that or you do not like the government doing that, striking down the government's ability to do so would have been a huge step in jurisprudence.

Further, the other conservative justices wanted to strike down the ENTIRE law, not just the mandate. Since most of the rest of the ACA amounts to regulatory requirements on the private insurance industry, it would have been a very broad reach for the Court to strike it all down. Chief Justice Roberts was correct in saying the opinion was not about the wisdom or efficacy of the law -- it was about its Constitutionality. Once the Commerce Clause question and the Spending Clause question were settled, it was not the job of the Court to relegislate the law into something better or to grant opponents of the bill a legislative victory they failed to get in Congress.

Conservatives should eventually appreciate these three victories in yesterday's ruling.

Comments

[peristaltor.livejournal.com]

I heard a law professor sum up the phrase "judicial activism" once: It's used to disparaged legal decisions with which the speaker disagreed.

[merig00.livejournal.com]

I believe conservative issue with this being a tax is more political. When ACA was discussed it wasn't a tax. When ACA was passed it wasn't a tax. When Obama signed it, it wasn't a tax. When it was argued in front of SCOTUS it wasn't a tax. And now it is a tax. So it's also a WTF moment

[telemann.livejournal.com]

When it was argued in front of SCOTUS it wasn't a tax.

Not true. The solicitor general did bring up that during the oral arguments.

[dwer.livejournal.com]

there are different definitions of the word "tax" in play.

[a-new-machine.livejournal.com]

It was also not a tax on one question (application of the Anti-Injunction Statute) and later found a tax on the question of whether it's supported by the tax power.

[sandwichwarrior.livejournal.com]

It's really quite simple.

The SCOTUS ruled that congress can not use the Commerce Clause to take money from people. If congress wants to take your money its a tax.

[policraticus.livejournal.com]

I said that from the git. Upholding the law on tax grounds, and very narrowly at that, while restricting the use of the Commerce Clause as a fig leaf and overturning the Medicaid provisions are a big silver lining in a very dark cloud. Also, Roberts has innoculated himself against charges of partisanship.

As Roberts more or less said in his opinion, SCOTUS is not here to hold your hand and keep you from passing bad laws. Constitutionality isn't about the wisdom or stupidity of a given policy.

This makes repealing Obamacare the duty of the next Congress. As it should be, as any conservative will tell you. Now all we need to do is elect legislators who will want to take a stand and do their job.

LOL.

[underlankers.livejournal.com]

Given this healthcare law is their own damn idea in the first place, I doubt they ever will.

[telemann.livejournal.com]

Conservative think tank, conservative Senators proposed it as an alternative to "Hillary Care," a conservative appointed to one of the most conservative Supreme courts since the 1930s said it's constitutional. Falling on their "socialism" swords is pretty odd.

[badlydrawnjeff.livejournal.com]

Sigh. Read this (http://www.forbes.com/sites/aroy/2012/02/07/the-tortuous-conservative-history-of-the-individual-mandate/), please.

[badlydrawnjeff.livejournal.com]

Victory #1: Commerce. Chief Justice Roberts joined the Court's conservative faction in rejecting the argument that the Commerce Clause gives Congress the power to REQUIRE individuals to purchase health insurance. Despite many claims to the contrary, the Commerce Clause is no more expansive today at 10am than it was yesterday at 10am.

...while giving an out for any future commerce clause issues by simply making such commerce mandates taxable offenses instead. This is actually worse than simply upholding the mandate on commerce clause grounds because it creates a novel interpretation of the taxing power that hasn't previously been advanced.

Victory #2: Spending. Under its spending authority, Congress has required all sorts of behavior from states in return for receiving federal money. By striking down the provision in the Medicaid expansion that required states to join in or lose all of their Medicaid funding, the court put a limit on how Congress can use its spending authority to coerce behavior from the states. If the sources I listened to are correct, then it is the FIRST time the Court has ever struck down such a requirement and Roberts did so with a majority that crossed the ideological divide on the Court.

This was really the one bright spot from yesterday, but was separate from the bigger picture. Had Roberts been responsible and sided with the minority on this one, the whole law - including this - would have been struck down. If and when this new approach starts sticking to things like holding highway funds hostage, I might be more amenable to this as a lasting concept.

Victory #3: Judicial Restraint. It may not look like it to opponents of the ACA, but by seeing the penalty as a tax, thereby upholding the mandate and not joining the conservative Associate Justices who wanted to strike down the entire ACA, the Chief Justice exercised judicial restraint.

No, this is the opposite of restraint. By deciding that something argued as a penalty, passed as a penalty, with statutory language as a penalty, is not a penalty? This is not restraint at all, but outright activism. This is textbook stuff. Restraint would be shooting it down on commerce clause grounds as Congressional overreach based on the actual language of the law. Instead, Roberts and the majority chose to outright ignore text and intent to come up with a way to justify the law. Nothing restrained about it.

and while the penalty is indeed called a penalty, it is progressively laid and economically no different than the myriad of deductions in the code meant to incentivize behavior from tax payers.

The difference, of course, is that it's a penalty for not doing something as opposed to a reward for doing something. It's not a tax, even if it functions like a tax. That's the part being missed here.

Further, the other conservative justices wanted to strike down the ENTIRE law, not just the mandate. Since most of the rest of the ACA amounts to regulatory requirements on the private insurance industry, it would have been a very broad reach for the Court to strike it all down.

Given the lack of a severability clause combined with how the parts of the law functioned with each other for the purposes of (in theory) not destroying the health insurance industry and getting people covered, there was no other option. It looks like a broad reach for the Court only because it was an overly broad reach by the government.

Conservatives should eventually appreciate these three victories in yesterday's ruling.

Even if we were to accept these as victories, we would be forced to do so via accepting tortured logic by Roberts to get there. Even if we accept a "good result," you're getting there by very bad law, and, given the Chief Justice's unfortunate love for precedent, bad law that is going to haunt us for quite a long time going forward.

[sandwichwarrior.livejournal.com]

I disagree.

The Roberts opinion is a major victory for advocates of limited government in that there are now limits to the commerce clause and the 9th & 10th ammendments are not as dead as everyone initially believed. The court didn’t reverse Wickard, but it established a new precedent that opens up a lot of challenges to existing federal code.

It's an even greater victory in the sense that Robert will have been seen to have trancended partisanship while at the same time forcing Congress and the Administration to own thier stupidity.

I'm actually almost speechless in machiavellian admiration of how well Roberts played this one.

[oslo.livejournal.com]

...while giving an out for any future commerce clause issues by simply making such commerce mandates taxable offenses instead. This is actually worse than simply upholding the mandate on commerce clause grounds because it creates a novel interpretation of the taxing power that hasn't previously been advanced.

While Roberts' opinion may go beyond previous caselaw on what constitutes a "tax" for constitutional purposes, it does so only insofar as it rejects highly formalistic tests that rely on how Congress chooses to draft its legislation. I think that's an appropriate approach; it makes no sense to say, of a congressional enactment of a law that operates functionally as a tax, that it could be unconstitutional if Congress calls it a "penalty" but constitutional if Congress calls it a "tax." Nothing in the Constitution incorporates such a "magic word" requirement.

This was really the one bright spot from yesterday, but was separate from the bigger picture. Had Roberts been responsible and sided with the minority on this one, the whole law - including this - would have been struck down.

Well, let's distinguish here between your fantasy-league version of constitutional law and how our Supreme Court actually makes decisions like this. Supreme Court precedent does not support your "bad apple ruins the barrel" approach to severability; had Roberts limited himself to the Medicaid expansion issue and sided solidly with the two liberals and four conservatives he had on this issue, the question would have been wether the Medicaid expansion would have been severable from the other provisions of the ACA, and arguing that it wasn't would have been more difficult than arguing that the individual mandate wasn't.

So - maybe you could say that, "Had Roberts been responsible and sided with the [dissent] on this one, the whole law - including this - ought to have been struck down." That would require "creating a novel interpretation" of the Court's severability jurisprudence, but hey, who ever accused you of engaging in principled analysis?

[oslo.livejournal.com]

If and when this new approach starts sticking to things like holding highway funds hostage, I might be more amenable to this as a lasting concept.

While I understand why libertarians think they like the Medicaid portion of the opinion because it seems to limit the federal government's ability to impose its mandates on states, it's bizarre to me that they don't seem to notice that it does so by effectively putting in place a one-way ratchet for federal spending. In the future, Congress will be able to invite states to participate in programs by offering money if they do so, but Congress's ability to change the program is going to be constrained by an entirely qualitative analysis that turns on whether Congress is creating a "new" program or only "modifying" an existing one. Just understanding how Congress is likely to respond to this litigation risk, and given what we already understand about public choice, etc., that's going to mean that Congress is going to be more reluctant than it was previously to revise bad programs or reduce spending - unless it opts to end a program altogether, which is itself a difficult prospect, and for similar reasons. This is going to lead to more government bloat, not less.

No, this is the opposite of restraint. By deciding that something argued as a penalty, passed as a penalty, with statutory language as a penalty, is not a penalty? This is not restraint at all, but outright activism. This is textbook stuff.

Ha, yeah, as opposed to, what, invalidating all of PPACA because the individual mandate fails? That's not "outright activism." You're one to talk about "textbook stuff."

Given the lack of a severability clause combined with how the parts of the law functioned with each other for the purposes of (in theory) not destroying the health insurance industry and getting people covered, there was no other option. It looks like a broad reach for the Court only because it was an overly broad reach by the government.

A lack of a severability clause is not determinative. The mandate was probably sufficiently intertwined with some of the other features of the law to bring them down with it, but law on severability would have required the Court to look no further than necessary to extricate those provisions of the law that were sufficiently interrelated with the individual mandate. I mean, this is textbook stuff.

[sandwichwarrior.livejournal.com]

I was actually planning on posting something to this effect.

[telemann.livejournal.com]

I don't know if you have seen David Frum's article yet at the Daily Beast. (http://www.thedailybeast.com/articles/2012/06/29/scalia.html)

Did Scalia Scare Off Roberts?

A reader who clerked on an appellate court thinks very possibly:

[T]he jointly-written dissent was intended to be majority opinion. Any informed reader would reach that conclusion after the first three pages --- and then again when seeing the fact that any and all problems with the actual majority decision are addressed only at the end of it, following an oddly placed " * * *."

The following is speculation, but plausible, and would be an interesting parallel to the conservative legislative strategy. Any objective legal observer would tell you (and I'm trying to be one here) that the dissent's treatment of the severability issue is detached from 200 years of constitutional law. It's unsupported legally and it's a mess logically. It also includes a citation to a quote that Harry Reid gave to the New York Times in January 2010 concerning the bill --- this from at least two justices (Scalia and Thomas) who routinely say that any use of legislative history is a sham because it's necessarily incomplete. One wonders what a quote not uttered on the floor of Congress but to a journalist would constitute in that case? In any event, rather than holding the mandate constitutional and those portions of the bill inextricably linked with it (guaranteed issue/community rating), four members of the Court were primed to throw the whole bill out. That level of judicial activism, in a context like this one, would be nearly unprecedented.

I imagine the dissenters either had Roberts's vote or that Roberts left the post argument conference without commiting to a side and saying something to the effect of "let me see how it writes." He certainly didn't trust the dissenters, as he clearly instructed his law clerks to begin working on an alternative majority opinion (the final product was too polished and too long to have been written at the last minute). And he waited to see what was written.

What was written was not measured judicial analysis, but rather an opinion that started with a goal --- throw the bill out --- and then figured out how to get there, blowing by any precedent in its path. The challengers were right in one respect, in that the mandate was a unique use of federal power that had not been considered by the Supreme Court. But severability had been considered by the Court literally dozens of times, and the four dissenters charged right by what those decisions had said.

So Roberts was left with a choice: engage in the severability analysis himself (a messy task indeed) or find some other way to uphold the bill. He chose the latter, and the result is what we have today.

That dissent intended to get his vote. It might have had it only struck a portion of the law. But Roberts correctly realized that he couldn't jump off that cliff without precedent or logic supporting him. Kennedy, Alito, Scalia, and Thomas went all in. And they lost their bet. Just like the conservatives in Congress.

[sandwichwarrior.livejournal.com]

On the other hand he almost single handedly put the 9th and 10th ammendments back on the table, which when you take the long view, is a much bigger conservative victory than getting Obamacare repealed.

[jennem.livejournal.com]

Personally, I think this is a load of conspiracy hogwash. The organization of the dissent is merely a byproduct of the speed in which all the justices had to write their opinions for this monumental (and historical) case.

First, if Roberts were in the original majority? He would have assigned himself the job of drafting the majority opinion, not Scalia. This case is likely the most important case to ever come out of his Court. Ever. There is no way on Earth he would have assigned this case to a more junior justice if he were in the voting majority.

Second, different sections of the dissent were written by different justices, and then slapped together. That's why certain sections appear to be very anti-Scalia and anti-Thomas. Because that section of the dissent wasn't written by them.

Third, in order to truly address and reference the Majority Opinion, you have to have access to it. Which means it has to be written. The dissenters likely started immediately writing their sections of the dissent post-vote. Then, they had to wait for the majority opinion to be released before they could actually reference it. If they already cobbled together the prior portions of their dissent, it makes some sense that the pin cites to the majority opinion appear at the end of the dissent.

[underlankers.livejournal.com]

Honestly, when we consider that this concept was originally proposed by the Republicans: http://blogs.wpri.com/2012/06/18/john-chafees-ghost-haunts-high-court-debate-over-obamacare/ (http://blogs.wpri.com/2012/06/18/john-chafees-ghost-haunts-high-court-debate-over-obamacare/)

The degree to which the party has gone batshit fucking insane when Barack Obama proposes it is completely exposed as the insanity and hollow partisanship that it is. It would be one thing if they had not backed the exact same idea, but when they first propose it and then go into batshit insane cloudcuckooland, well...........I have no patience for the crocodile tears of the party of cranks and lunatics.

[fornikate.livejournal.com]

i truly enjoy all the claims that it is unconstitutional, but no one says HOW it's unconstitutional.

[kylinrouge.livejournal.com]

As the One True Arbiter of the Clearly-Written Text, I say it is patently obvious that it is unconstitutional.

[sandwichwarrior.livejournal.com]

You'll need to be a bit more specific about what "it" is.

[chessdev.livejournal.com]

I like the claims that "majority of Americans wanted it repealed".....

and yet, the only complaints I'm seeing are coming from Conservatives...

oh WAIT!! That might challenge the notion that everyone but the Illuminati are Conservatives...


Hmmm...maybe THAT is why they're upset. Their worldview of how prominent their support was is also challenged..

[geezer-also.livejournal.com]

The main problem with the "I'm a lawyer, you're not" (so I understand, you don't) argument is that by extrapolation all decisions should be 9-0.

[chessdev.livejournal.com]

What I think is being missed is that lawyers may disagree, but for different reasons than
the "common man" may come up with.

Having people who dont understand the constitution arguing (or rather mis-arguing) Constitutional points
may agree with a justice...but not for the legal reasons they may believe