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Breaking my heart, it’s what SCOTUS is *for*

Or you can regard that object as the warm, throbbing heart of the Republic. Justice Roberts joins the liberal justices to declare Obamacare legal, by renaming the mandate a tax. So even if we get this puppy repealed (a big if), the precedent is there — there’s nothing Congress can’t make you buy. Hope you like broccoli.

You won’t believe me, but I had a bad feeling about this one. And the more our side declared tentative victory, the more the hair on the back of my neck itched.

I wonder if lefty journalists are scrambling to pull all those articles about how 5-4 decisions prove the court has devolved into a stinking hotbed of political hackery.


Comment from Mrs. Compton
Time: June 28, 2012, 2:37 pm

I just have no words. I’m numb.

Comment from S. Weasel
Time: June 28, 2012, 3:19 pm

Hm. Well. Hugely unpopular health care law is now also a massive tax increase? I have a feeling they’ll be sorry they won this.

Welcome back, Tea Party. It hardly seems you were gone a moment.

Comment from Ric Locke
Time: June 28, 2012, 3:46 pm

Hmph. I figured that one out long ago. (Note the post date)

Comment from mojo
Time: June 28, 2012, 3:59 pm

Oh, haven’t you heard?

Gollum says the Tea Party is dead.

Comment from steve
Time: June 28, 2012, 4:01 pm

Well, it just goes to show….you really do have to pass it to find out what’s in it. (Nancy Pelosi was right for the first time in her life.)

All along Nancy and the others, right up to Preznit Barry himself, insisted this was not a tax….

Now that it has been passed…we have found out what was actually in it….

It was a tax, all along….

(Maybe they should have read it before they passed it?)

Comment from steve
Time: June 28, 2012, 4:03 pm


This just in!

Michael Bloomberg is proposing a law requiring that everyone exercise regularly (a minimum of 10 hours of cardio per week)….

Or they will be required to pay a tax…..

Comment from Gromulin
Time: June 28, 2012, 4:27 pm

Meh. Roberts just energized the GOP base like no one else could.

Comment from Wiccapundit
Time: June 28, 2012, 5:12 pm

The Lefties will come to regret this. When (eventually) a Republican takes the White House with a Republican Congress, what’s to stop them from passing a law requiring every citizen to own a firearm (a la Kennesaw, Georgia), in order to increase public safety and reduce crime? Can’t do it, say you liberals? Oops. The Obamacare ruling says Congress can require you to buy health insurance and eat broccoli, so PISS OFF! Oh, and go buy a gun.

As for me, I ain’t buyin’ their lousy healthcare option, no matter what the Supremes say.

Comment from rustbucket
Time: June 28, 2012, 5:28 pm

Powder. Keep it dry. Buy more guns. Buy more ammo.
Well, that just about finishes my “to-do list”.

Comment from Wolfus Aurelius
Time: June 28, 2012, 5:33 pm

As I posted over at Ace’s:

Quotes to ponder:
“My friends, you have nothing to fear from an Obama presidency.”


“The Founding Fathers created the Presidency to keep an eye on Congress, and the Congress to keep an eye on the President; and the Supreme Court to keep an eye on both of them.”

Yeah. Right.

Comment from Some Vegetable
Time: June 28, 2012, 6:12 pm

Everybody sing ! Tax it! Tax another little piece of my heart, baby!

With apologies to Janis Joplin who, although dead, probably votes democrat.!

Comment from Deborah
Time: June 28, 2012, 6:15 pm

Permit me to float an idea that may help: Roberts knew that if the Court overturned Obamacare—there would be riots in the streets. For now, he took the bullet. He knows that Congress will repeal the health care law (because it is always better to repeal a bad law than for the Court to overturn it). Then Congress can start over, and produce a bill that doesn’t have to be passed so we can see what’s in it.

In the meantime, Republicans have to show the Democrats what Voter Intimidation really means: we must vote in every election, starting with school boards, water district, rural electric co-op, county, city, state, and national. The Democrats have to be voted out of every office. Romney is not my ideal candidate, but the ideal candidate does not exist (unless Stoaty can revive zombie Reagan).

Comment from Mysterion
Time: June 28, 2012, 7:10 pm

This is why we have heard so much about obesity in the news lately. What you eat and how much you eat is now the government’s business. That was always intended to be step two after Obamacare.

Comment from Mark T
Time: June 28, 2012, 7:19 pm

I’m appalled. The ramifications of this are mind boggling. We have one last chance in Nov to turn this around. Coincidentally, my absentee ballot for the WA primaries arrived today. I spent time looking up every last one of the candidates for each office. “Candidate Endorsements: SEIU.” Nope, next one. Rinse and repeat.

Comment from GregInSeattle
Time: June 28, 2012, 7:27 pm

This will serve to fire us up. Yes, a stupid and scary precedent, I’m not minimizing that. BUT, I encourage all of you to fight like hell to save the Republic and win in November! Give $$$ to good candidates, and get out there and campaign for local candidates you like. Get involved- or lose the Republic.

Comment from S. Weasel
Time: June 28, 2012, 7:33 pm

Hm. This is interesting. After analysis, some commenters (for example, Jay Cost) are saying Roberts gutted the Commerce Clause. In other words, he put the brakes on the left’s reach.

I don’t pretend to understand, but this might not be the tragedy it first appeared…

Comment from GregInSeattle
Time: June 28, 2012, 7:48 pm

Let’s hope so, S. Weasel. Kinda makes sense… However, he certainly won’t be very popular on the Right for some time.

Comment from Sigivald
Time: June 28, 2012, 7:59 pm

What you just said in the update, Weasel.

This decision said the Commerce Clause (and for that matter the Spending Power) don’t and can’t justify the ACA.

So the Commerce Clause really only affects commerce, not compelling commerce, and the Spending Power doesn’t let the State spend money on any ol’ thing just ’cause.

That’s all good news – that the Tax Power is far less limited is also not a surprise.

Comment from GregInSeattle
Time: June 28, 2012, 8:02 pm

Another good point, since this is now officially a tax (for it all to fly), Obama has to defend a huge tax increase going into November. Not to mention the expiring Bush Tax Cuts. Not something an incumbent wants to defend against.

Comment from S. Weasel
Time: June 28, 2012, 8:32 pm

Also, some have pointed out that certain procedures have to be observed to enact a tax (for example, tax bills have to originate in the House, ACA originated in the Senate).

So, could the law now be shot down on a technicality?

Comment from mojo
Time: June 28, 2012, 9:06 pm

Sneaky rib-shot #2: If it’s a TAX (and it is, says USSC), then Obiecare started in the wrong house (all tax bills MUST originate in the House) and may be unconstitutional simply on procedural grounds.

Oh, and Tax repeals are not subject to filibuster. 51 votes, boys.

Comment from Oldcat
Time: June 28, 2012, 9:10 pm

I never am confident of relying on the least democratic branch of the government to save my bacon. Especially after they OKed the Campaign Finance Law.

There are aspects of the decision that we might use to fight on, but we have to do it in Congress, not hope for SCOTUS to save us.

Comment from Redd
Time: June 28, 2012, 9:35 pm

It’s amazing that the people who are imposing this on us have specifically exempted themselves from having it imposed on themselves. Really freaking unbelievable.

Comment from Mrs. Compton
Time: June 28, 2012, 11:12 pm

“Oh, and Tax repeals are not subject to filibuster. 51 votes, boys.”

Hmm, Roberts was being a sneaky bastard?

Comment from Can\’t hark my cry
Time: June 28, 2012, 11:55 pm

The decision is even more complex than most Supreme Court decisions, but. Hm. The 2 questions presented had to do with the power of Congress to enact the requirement to purchase insurance or pay a penalty, and the enlargement of the Medicaid program. The latter was decided without reference to the taxing power.

What was identified as a tax justifying the exercise of the taxing authority was the requirement that those who (not having health insurance available through any other avenue) choose not to buy health insurance pay a penalty, which will be collected by the IRS apparently (I didn’t linger on the details) at the time Federal income tax is due, and based on criteria similar to those which determine the amount of income tax (income, filing status, etc.) It appears that, at least in a significant number of cases, the penalty so calculated will be less than the cost of insurance premiums–$720 or so per year for someone whose income is $35,000 (again, based on a relatively quick reading of Mr. Roberts’s decision). So, even assuming the argument about tax repeal is valid, it isn’t clear just how big a dent in the overall law it would result in.

Comment from steve
Time: June 29, 2012, 12:03 am

Sorry Debora, and Stoaty and everyone ales who is trying to make something good out of this horrid decision….

Do not look at this decision as a decision on Obamacare….look at it as a precedent.

nat Roberts just did is determine that congress is justified in any coercive measure you can imagine, so long as they characterize it as a tax!

Have more than two kids? OK! But you will have to pay (not a fine) a tax!

Fail to get the requisite 10 hrs of cardio workout each week…pay a (not a fin) a tax.

Whatever coercive BS you can imagine…so long as it is not a fine or a “commerce clause” mandate….but instead a “tax”….everything is okey dokey!

Comment from Can’t hark my cry
Time: June 29, 2012, 12:09 am

Well, no, not really. Try reading the decision itself http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf He is very clear that in the attempted exercise of the taxing authority there is a line between the punitive (which this is not) and the relatively benign.

Comment from Scubafreak
Time: June 29, 2012, 12:31 am

Sorry all, but even if we get everything we want in the house, the senate and the White House, and it is repealed on President Romney’s first day, the idea of a FREE America died today. It didn’t die because we didn’t exersize due vigilance, it was GANG RAPED TO DEATH BY A FUCKING SUPREME COURT WHO REWROTE IT FROM THE BENCH TO TURN IT INTO SOMETHING THEY FELT THEY COULD LIVE WITH, WHICH IS NOT WITHIN THEIR POWER!!!!!

The idea of America just died a horrible death, because the people who were supposed to protect the Constitution that upholds that ideal just made it known that the power brokers can do whatever they want, and WE THE PEOPLE are POWERLESS and VOICELESS……


Comment from Sven in Colorado
Time: June 29, 2012, 1:36 am

Thanks Weasel…..for nothing. My post was dusted.
I will not be back.

Comment from Can’t hark my cry
Time: June 29, 2012, 1:50 am

Wow, hope Sven will reconsider! He will be missed, and it is really hard to believe that anything he posted was treated unfairly. Ouchies!

Comment from Rich Rostrom
Time: June 29, 2012, 6:04 am

This decision is a mess. But there are nuances.

In particular, a strong consensus (7-2 AIUI) that the Administration’s claim that the law is authorized by the Commerce Clause was completely wrong. That establishes a hard limit against future Commerce Clause based mischief.

Another nuance is the odd writing of the dissent – which does not respond to the majority opinion’s key finding, as dissents usually do, and refers to it several times as “the dissent”. It includes a long discussion on the severability of the other parts of the PPACA from the mandate; if the mandate is not severable, then striking it down takes down the whole Act – but the mandate was not struck down, making its severability moot, so why the discussion? The dissent is also unsigned.

Many analysts have inferred from this that the dissent was written as a majority opinion, in part by Roberts – and that Roberts later switched his vote.

It’s not unknown for a Chief Justice to change his vote on decision so that he gets to write the majority opinion. He can then make sure that the finding is as narrow as possible and doesn’t establish radical new points of law.

That usually happens when there’s a majority for the finding – which there wasn’t here. Roberts may have exchanged his vote to uphold the mandate for setting the basis of the opinion. He got to slam the Commerce Clause claim, and also strike down the Medicare expansion part of PPACA.

Roberts is conservative by temperament, and may have been reluctant to strike down such a big law without absolutely clear Constitutional justification. (Some of the Volokh Conspiracy lawbloggers have been major players in the anti-PPACA suits – but they all admitted that PPACA’s unconstitutionality was no slam dunk.)

It should be noted that the Roberts Court has been the least “activist” Court in many years, in terms of striking down laws or overturning precedent.

This way, the Act is upheld, but Commerce Clause authority is cut back and Medicare expansion is blocked.

Roberts may also have calculated that the Act will be repealed after Republicans win the election, and that that goal will energize them. Meanwhile, the Court has some political cover for other important rulings.

I don’t know that I buy this analysis as a justification. PPACA is such a godawful mess that it should have just been killed. The gimmicky basis for the finding and the weird breakdown of the opinions is reminiscent of Dred Scott, which as Lincoln noted purported to make a huge finding with the Justices not even agreeing as to what they were finding.

I’ll make one other point: People, don’t go blasting Roberts all over the place. There’s always a lot of pressure on a Justice to “grow in office” and be assimilated by the liberal consensus. Roberts has generally resisted that pressure, AFAICT. If he comes in for a lot of over the top vituperation and excoriation from his supposed allies, that might just drive him to the other side.

He’s the Chief, and will be for another 25 years or so.

Comment from Rich Rostrom
Time: June 29, 2012, 6:09 am

S. Weasel: Also, some have pointed out that certain procedures have to be observed to enact a tax (for example, tax bills have to originate in the House, ACA originated in the Senate).

So, could the law now be shot down on a technicality?

The Court already ruled that PPACA is not a tax bill for the purposes of the Anti-Injunction Act, which was cited in one of the challenges.

However, as a Volokh Conspirator noted, PPACA would have avoided the mandate challenge if it had been enacted as a tax; so in a sense the entire mandate challenge was on a technicality or “gotcha”.

Comment from S. Weasel
Time: June 29, 2012, 11:21 am

Huh. Nothing from Sven in the spam bucket.

The more I read about this thing, the less I understand it. Which is why I’m not a law talking guy.

I do have a sort of gut feeling that the messier and more confusing a decision, the worse the law…and the messier it will get down the line when used as a precedent (Roe v. Wade anyone?).

I have another gut feeling: Roberts did it this way so the left wouldn’t be butthurt. But the left is always butthurt when they don’t get their way, so does this mean all tough decisions have to fall to the liberal wing?

Don’t like it.

Comment from Oceania
Time: June 29, 2012, 12:12 pm

I’m just sitting back watching you all self-destruct.

Comment from Redd
Time: June 29, 2012, 1:34 pm

It’s my understanding they only need 51 votes to repeal the mandate. The rest stays.

Comment from Oldcat
Time: June 29, 2012, 1:35 pm

Rich Rostrom –

If Roberts caves to pressure, not pressuring him will only lead to more caves, not less.

Comment from jwpaine
Time: June 29, 2012, 1:40 pm

It’s… It’s a cookbook!!

Comment from Some Vegetable
Time: June 29, 2012, 6:19 pm

I don’t believe that Roberts did this to govern from the bench but in fact to avoid it. That is, to avoid having to run the health care system through the courts as happened when the Feds took over the schools through the mandatory EEO rule based bus programs.

He basically found a way to say, “The Legislative and Executive branches got yourselves into this mess; don’t think you can always come running to the Supreme Court to get you out of it with no blame”.

The creation of the act was a dirty deal by the Legislative branch; passed through a questionably legal procedural trick – and the court wants it similarly undone or supported through the action of the ‘people’s representatives’.

I am pleased by the limiting of the Commerce clause, and concerned by the unlimited taxing authority recognized. I am also concerned by the current weakness of States rights. I believe that the Senators were originally selected by the States rather than by direct election. I believe that the original method gave the States more power as the Senators were responsible to them; under the current system they are completely independent of the State governments and , through direct election, inclined to pander as the House Representatives do. I believe the change came about in the 1870’s somewhere, but decided not to look it up as one of you will correct me if I’m wrong.

Comment from Can’t hark my cry
Time: June 29, 2012, 6:48 pm

That was the 17th Amendment, 1913. A handy-dandy quick look-it-up for the Constitution is http://www.usconstitution.net/const.html#Am17S1

Comment from rick
Time: June 29, 2012, 7:07 pm

How about the “OBAMACARE it’s STILL a BF Tax Increase” shirt?


No energy left to rhyme.

Comment from memomachine
Time: June 29, 2012, 7:22 pm

“Hm. This is interesting. After analysis, some commenters (for example, Jay Cost) are saying Roberts gutted the Commerce Clause. In other words, he put the brakes on the left’s reach.”

And if you click your heels together and wish really hard you’ll end up back in Kansas. Seriously man do you really think that this would stop 5 liberal justices from ruling in any way they wanted?

Comment from Redd
Time: June 29, 2012, 8:12 pm

You know what is more important? Katie and Tom are splitsville. He’s only worth $250 mil, so it’s not worth divorcing Uncle Badger for. 🙂

Comment from S. Weasel
Time: June 29, 2012, 8:43 pm

Wow. I really thought that marriage would last.

Comment from Uncle Badger
Time: June 29, 2012, 11:52 pm

I lose that much down the back of the sofa every couple of days, Redd

It really hurts to see you lot being ruled by nit-picking lawyers. You really should learn from the olde countrie and be ruled by sociopathic politicians who let you pretend you have a voice, every few years,

Hang on a minute……!

Comment from Oceania
Time: June 30, 2012, 1:07 am

And you still haven’t got you mitts on Herr Kim Dot Kom!

Comment from Subotai Bahadur
Time: June 30, 2012, 1:43 am

I have been writing since yesterday at a bunch of sites deconstructing the false happy talk about the multi-dimensional Ninja/Yoda Glassperlenspiel coup that Roberts supposedly accomplished. It is all bogus. Y’all don’t have enough room here to explain how bad it is. Short form, it is going to take a Constitutional amendment to hope to fix things, and that is not sure. Nothing is foolproof, because fools and tyrants are so freaking ingenious.

Now and for the foreseeable future, the Constitution means only what someone in power says it does, for as long as they are in power or until they change their mind. This is NOT going to be pleasant, and we are in for what I think are Chinese style “interesting times” for the next 6 months at least, if we are lucky. If we are not …

Comment from rick on
June 29, 2012, 7:07 pm

I’m making t-shirts that say: “BOYCOTT DEMOCRAT-OWNED BUSINESSES” over an Obama symbol with the international ‘no’ circle and slash over it. Below that is: “Make the Democrats as poor as they are making us.” The goal is to make liberal heads explode. It works.

Subotai Bahadur

Comment from Rich Rostrom
Time: June 30, 2012, 4:47 am

S. Weasel: I have another gut feeling: Roberts did it this way so the left wouldn’t be butthurt.

I don’t think so. The concurrence from the four liberals (written by Ginsburg) is extremely bitter. They really don’t like what Roberts did.

Personally, I think he got all clever-dick. He really doesn’t like striking down legislation. And then he saw a way to uphold the law while cutting back the Commerce Clause and set up the easy repeal of ACA (as a tax it can be repealed without a Senate supermajority).

If Republicans win the Senate and Presidency, and repeal the ACA; and the Court follows his Commerce Clause finding in striking down other mischief – Roberts will go down as the super-ninja CJ. If the election doesn’t pan out – then he’s a bum.

Comment from Christopher Taylor
Time: June 30, 2012, 5:13 am

Roberts did it this way for two reasons.

1) he doesn’t like striking down legislation, it feels “activisty” and hurts his sensibilities.
2) he didn’t want to have any precedence set up here that would let people challenge previously okayed legislation that the supreme court let through like farm subsidies, medicare, and so on. Because the court is sacred and must never be questioned or reviewed, even if its a retarded piece of crap decision.

He basically rewrote the law to be something it wasn’t, from the bench, to be clever. Screw him and the horse he rode in on. This wasn’t some double secret special tactic.

Comment from Pablo
Time: June 30, 2012, 1:10 pm

How about this, rick?

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