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(Slate)   By upholding Obamacare, did Roberts actually score a greater victory for conservatives?   (slate.com) divider line 179
    More: Interesting, obamacare, Commerce Clause, health law, Federalist Society, Chief Justice John Roberts, enumerated powers, U.S. Supreme Court, pushback  
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4281 clicks; posted to Politics » on 28 Jun 2012 at 3:58 PM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-06-28 04:00:38 PM
No
 
2012-06-28 04:01:35 PM
No Link
 
2012-06-28 04:01:45 PM
No. He's just another example of the much more tame Bush coming back to bite the more extreme GOP in the rear.
 
2012-06-28 04:01:48 PM
Were Custer's last words, "Boys, now we have them exactly where we want them!"?
 
2012-06-28 04:02:02 PM
I read the first sentence and had to stop. I have yet to read Robert's opinion on this case but I seriously doubt it is "gutting the Commerce Clause." I figured everything that followed would be half tripe half spin.
 
2012-06-28 04:03:04 PM
That's really nice spin over there... the article didn't go into detail as to what other issues are on the horizon that would require the use of the commerce clause?

I'm as liberal as you can get but even I think that government should not be involved in a lot of issues. Health care however is an issue that they should be involved as the health of its citizens should be a concern of the government.
 
2012-06-28 04:04:02 PM

Kome: No


Actually, the article makes a rather compelling case that he essentially gutted the commerce clause...
Of course, as I recall, He was the only one of the 5 judges who upheld that said that the ACA wasn't covered by the commerce clause...
 
2012-06-28 04:04:38 PM
No. If he wanted to do that, he would have killed it when he had the chance.
 
2012-06-28 04:06:40 PM
Parts III-A and B, where Roberts said that the Commerce Clause and Necessary and Proper Clause did not authorize regulating inactivity, were only signed by him. That would seem to not be binding precedent.
 
2012-06-28 04:06:50 PM
Dicta.
 
2012-06-28 04:07:04 PM
Even the freepers aren't buying this argument:
Lovely-Day-For-A-Guinness:
All these pundits telling us was a genius Roberts is for his calculated decision. Why, it's almost Rovian in grandeur.
It's pissing me off reading it over and over.
If we have a Chief Justice making a fool's gamble that impacts 300+ million people, and uncounted millions more in the future, he's needs his filthy arse impeached.


The butthurt today has been stupendous.
 
2012-06-28 04:08:24 PM
Poor conservatives with preexisting conditions or no health insurance? Sure.
 
2012-06-28 04:08:27 PM
The article makes a pretty solid point about how by making this a tax they limit congress's ability to regulate commerce rather than to compel it. Which is probably a victory for smaller government than the other way around.

Weather or not our current Republicans actually want smaller government aside, it is a victory for those who do in the long term.
 
2012-06-28 04:08:46 PM
Also, his opinion regarding the commerce clause doesn't count as a ruling, so who gives a crap? He upheld Obamacare just so he could say that he only did so because he sees it as a tax, and that he doesn't think it holds up under the commerce clause?

This is a bit like shooting your leg off to kill a fly and claiming victory. Also, you missed the fly.
 
2012-06-28 04:09:23 PM
DNRTFA, but it seems to me that this decision holds that mandates can't rely on Commerce, because you can't regulate non-commerce (i.e., not buying health care in this case). I honestly don't know how wide-ranging that sort of precedent might be.
 
2012-06-28 04:09:24 PM
chemwiki.ucdavis.edu

/ what the author of this article may look like...
 
2012-06-28 04:10:36 PM

JollyMagistrate: The article makes a pretty solid point about how by making this a tax they limit congress's ability to regulate commerce rather than to compel it.


They didn't MAKE it a tax. Roberts alone simply VIEWED it as one. The other conservative judges thought he was an idiot, and the moderate/liberal judges would have approved it regardless.
 
2012-06-28 04:10:41 PM
No.

I mean, they can harp about Obama raising taxes, but the reality is that most people have insurance, and won't get the penalty.

It's ALWAYS ok to raise taxes on someone else, or have people not been paying attention?
 
2012-06-28 04:10:51 PM
Premise of the article is all wrong. The portion of the opinion speaking to the commerce power is non-binding dicta. Granted, we can be pretty sure these five won't tolerate much more in the way of commerce power legislation. But there's no stare decisis binding on lower courts, or to weigh on future courts.

So suck it hard, cons.
 
2012-06-28 04:11:18 PM
Judging by the fact that GOP hirlings are starting to write editorials like "Is armed rebellion now justified?", I'm guessing the answer is no.

/They are just asking questions.
 
2012-06-28 04:11:44 PM
Politically speaking, it would have done the same thing no matter which way the supreme court ruled. All it does is raise the volume. The ruling itself will prove to be rather politically neutral I think.

It could be spun as a positive, if it has positive results. So in like 6 years if things go well, then it will be political capital to be spent. For now, ppl are too skeptical, uninformed and easily distracted for this to matter a ton (translate into votes this year)

Each will spin to their advantage best they can. It's an election year, the volume is going to be very very loud anyways. The push for and the rhetoric surrounding the healthcare reform act was of political significance. Whether you hear republicans talk about repeal/replace or strut about proud of defeating it... does it really matter? (vice versa for dems)

Whether or not it ultimately stuck was not really of consequence, you would heard the same arguments voiced and the term Obamacare said the same number of times either way.
 
2012-06-28 04:13:06 PM

JollyMagistrate: The article makes a pretty solid point about how by making this a tax they limit congress's ability to regulate commerce rather than to compel it.


Because it's a tax, it'll be easier to repeal also.
 
2012-06-28 04:13:11 PM

terriblist: DNRTFA, but it seems to me that this decision holds that mandates can't rely on Commerce, because you can't regulate non-commerce (i.e., not buying health care in this case). I honestly don't know how wide-ranging that sort of precedent might be.


The commerce clause section is no precedent whatsoever. Maybe this court will roll back the commerce clause. But they didn't do it in this decision.
 
2012-06-28 04:13:34 PM

MurphyMurphy: Politically speaking, it would have done the same thing no matter which way the supreme court ruled. All it does is raise the volume. The ruling itself will prove to be rather politically neutral I think.

It could be spun as a positive, if it has positive results. So in like 6 years if things go well, then it will be political capital to be spent. For now, ppl are too skeptical, uninformed and easily distracted for this to matter a ton (translate into votes this year)

Each will spin to their advantage best they can. It's an election year, the volume is going to be very very loud anyways. The push for and the rhetoric surrounding the healthcare reform act was of political significance. Whether you hear republicans talk about repeal/replace or strut about proud of defeating it... does it really matter? (vice versa for dems)

Whether or not it ultimately stuck was not really of consequence, you would heard the same arguments voiced and the term Obamacare said the same number of times either way.


Speaking of, did anyone get an "Obamacare" count in Romney's little speech?

I was farking and half listening. At parts I could have sworn Obamacare was ever other word.
 
2012-06-28 04:13:48 PM
no
 
2012-06-28 04:14:05 PM
нет
 
2012-06-28 04:14:23 PM
"You guys, if you think about it,the democrats losing the Scott Walker recall is actually a good thing because it will charge up the base."

Of course, if you said that the day Walker won, conservatives would laugh at you. And they would be doing it rightfully.
 
2012-06-28 04:14:58 PM

SacriliciousBeerSwiller: Also, his opinion regarding the commerce clause doesn't count as a ruling


Actually, yes it does. It's not dicta, and the five member majority all signed on to it.
 
2012-06-28 04:15:08 PM
Of course the ruling means conservatives win.

They were the first to propose the mandate, and the first to implement it (at least on a state level). It's their idea to begin with. They got what they wanted.

Sadly for them, however, Obama also got what he wanted. Which totally poops all over their parade.

Poor conservatives. Having to share a victory.
 
2012-06-28 04:15:13 PM

Serious Black: Parts III-A and B, where Roberts said that the Commerce Clause and Necessary and Proper Clause did not authorize regulating inactivity, were only signed by him. That would seem to not be binding precedent.


It is, because it agreed with the holding of the 4 dissenting conservative justices with respect to the commerce clause. The binding precedent is that the mandate is not permitted under the Commerce clause, but is permitted because it is for an intents and purposes a tax.

Basically everything Roberts wrote is binding precedent, because on the parts that side with the liberals the four liberal justices agree with him, and in the parts that side with the conservatives 4 conservative justices side with him.

/G.E.D. in law
 
2012-06-28 04:15:21 PM
www.ombwatch.org
 
2012-06-28 04:15:39 PM

Lost Thought 00: Judging by the fact that GOP hirlings are starting to write editorials like "Is armed rebellion now justified?", I'm guessing the answer is no.

/They are just asking questions.


Only in America would people become incensed to the point of insurrection because somebody wants to try and provide them a better healthcare system at a more reasonable cost....
 
2012-06-28 04:16:03 PM

terriblist: DNRTFA, but it seems to me that this decision holds that mandates can't rely on Commerce, because you can't regulate non-commerce (i.e., not buying health care in this case). I honestly don't know how wide-ranging that sort of precedent might be.


Here's the thing: the court did NOT rule that it was illegal under the commerce clause. They opined it might be, but Roberts actual DECISION is simply that it is legal under tax laws. Opinions on "woulda coulda shoulda" are just that: opinions. Not precedent. If he had also said "speed limits are stupid", it doesn't mean that all of a sudden that a precedent was set that made speed limits illegal.
 
2012-06-28 04:16:44 PM

1. It was always a kind of tax.

2. Its going to HELP Obama, not hurt him.
People that don't like Obama will not like the ruling. People that like Obama will brag about it. People that are undecided will take this as evidence that Obama is a GOOD president - in that his major law was not revoked.

3. As for general anti/pro Obama propaganda, more people like the content of the law. The polls that claim it is unpopular include the people that think it didn't go far enough - and they are pro Obama.

 
2012-06-28 04:17:08 PM
Roberts actually did some very nifty footwork today. When you think it through, his actions aren't as simple as you think.

1. Upheld signature Democratic bill
2. Uphold it WHILE denouncing the administration's defense of it as invalid
3. Uphold it and call it a tax. We're going to see $100M of ads saying Obama raised your taxes and citing this ruling
4. Kennedy wrote the dissent that gives future grounds to swing back against it in fairly damning terms
5. Weakened the commerce clause

No, I think the GOP is going to eventually figure out that Roberts didn't screw them like they think he did, and the Democrats are going to hate that majority opinion.
 
2012-06-28 04:17:20 PM
Doesn't matter. If Obama is reelected he will name at least one more judge to the Supreme Court, even if he has to get Jared Loughner out of jail to do it (too soon?). Then the Democrats will control the Court and soon the death panels will be ours! If he isn't reelected it's moot.

If Obama is reelected and no conservative justice has the good taste to die or resign, expect to see the dirty laundry of particularly loathsome Court members aired publicly starting in 2014 or so. I mean, if Scalia doesn't turn out to be either a cross dresser or a child molester, I'll eat my hat, while Thomas will most likely end up in jail..
 
2012-06-28 04:17:35 PM

iccky: The binding precedent is that the mandate is not permitted under the Commerce clause


No sir. It is obiter dicta, and it would be even if 9 justices had signed onto it. It is dicta because it isn't necessary to the Court's final disposition of the case. Legally speaking, it's nothing more than Roberts opining his view of the Commerce Clause.
 
2012-06-28 04:18:02 PM

Freudian_slipknot: Poor conservatives. Having to share a victory.


Except that they fought tooth and nail against the version that actually got implemented.... I don't see how you can claim it's a shared victory when one side has done nothing but ferociously attack it since day one.

I mean.... I'm not saying they won't try. Conservatives are nothing if not reliable liars, but I don't see how a reasonable person could view this as a shared victory. They fought it every step of the way and lost nearly every battle along the way culminating in their loss of the war today.
 
2012-06-28 04:18:53 PM
Gutting the commerce clause? Seriously?

catmacros.files.wordpress.com
 
2012-06-28 04:18:56 PM
Seems like wishful thinking. Sure, in the long run this could be used as part of a greater strategy by right-wingers, but as far as the SCOTUS goes, Obama's reelection followed by another Democratic president would likely add at least one other reliable liberal vote and derail it for another decade. You can't bank on there being time for that strategy to play out.
 
2012-06-28 04:19:15 PM

iccky: Serious Black: Parts III-A and B, where Roberts said that the Commerce Clause and Necessary and Proper Clause did not authorize regulating inactivity, were only signed by him. That would seem to not be binding precedent.

It is, because it agreed with the holding of the 4 dissenting conservative justices with respect to the commerce clause. The binding precedent is that the mandate is not permitted under the Commerce clause, but is permitted because it is for an intents and purposes a tax.

Basically everything Roberts wrote is binding precedent, because on the parts that side with the liberals the four liberal justices agree with him, and in the parts that side with the conservatives 4 conservative justices side with him.

/G.E.D. in law


Ah, yes, you are correct. I didn't understand the note at the bottom of III-A that said "Accord, post, at 4-16 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting)." I presume that means they are joining that part of the opinion. Man, this is a complicated opinion to parse.
 
2012-06-28 04:19:59 PM

ddam: That's really nice spin over there... the article didn't go into detail as to what other issues are on the horizon that would require the use of the commerce clause?

I'm as liberal as you can get but even I think that government should not be involved in a lot of issues. Health care however is an issue that they should be involved as the health of its citizens should be a concern of the government.


Pretty much every major government regulation, and a lot of stuff that doesn't seem like regulation, is justified using the commerce clause. Clean air laws? Commerce clause. Minimum wage? Commerce clause. Non-discrimination laws? Commerce clause.

There probably aren't many issues where Roberts' specific finding on this case, that the government can regulate existing activity but can not compel activity that didn't already exist, is important. But to the extent that it reflects a trend towards tighter findings with respect to the commerce clause, it marks a trend towards letting the government do less to regulate the economy.
 
2012-06-28 04:20:01 PM
Look at it this way: From now on out, if a Corporation wants to increase their business, all they have to do is buy Congress, and they can make it MANDATORY.

/Sleep well, Libs...
 
2012-06-28 04:20:23 PM

GAT_00: 3. Uphold it and call it a tax. We're going to see $100M of ads saying Obama raised your taxes and citing this ruling


I think we were going to see that anyway, and I think Obama would welcome the chance to debate Mitt Romney on tax policy and get Romney's proposed tax plan out where people can see it. After all, Romney also raises taxes on the poor and middle class, except he does it to cut taxes on top brackets instead of give people health insurance.
 
2012-06-28 04:20:37 PM

SacriliciousBeerSwiller: Here's the thing: the court did NOT rule that it was illegal under the commerce clause. They opined it might be, but Roberts actual DECISION is simply that it is legal under tax laws. Opinions on "woulda coulda shoulda" are just that: opinions. Not precedent. If he had also said "speed limits are stupid", it doesn't mean that all of a sudden that a precedent was set that made speed limits illegal.


pretty much this, with that sauce.

i don't pretend to be a lawtalkingguy and my eyes cross trying to read some opinions - but the framework in what makes precedence isn't that difficult to understand. if it was set as some seem to see it in this context, judicial precedence wouldn't exist - it'd be all over the place.
 
2012-06-28 04:21:28 PM
ちがいます。それだけだ。
 
2012-06-28 04:21:39 PM

max_pooper: I read the first sentence and had to stop. I have yet to read Robert's opinion on this case but I seriously doubt it is "gutting the Commerce Clause." I figured everything that followed would be half tripe half spin.


Maybe you should read the argument before you decide that? On the commerce clause question Roberts sided with Scalia et al., which is pretty damn conservative.
 
2012-06-28 04:21:48 PM
He got his bit in about limiting the Commerce Clause, but I can't really think of another area where the difference between "penalize with a tax" and "forced to participate in a market" will be pertinent. He didn't rein in any of the other Commerce Clause abuses that actually matter, like in Gonzales v. Raich for example. And in the long run, as has been pointed out, he's the only one of the five who mentioned anything about the Commerce Clause. The other four concurring justices didn't join in that part, so it is easily ignored as dicta by a more liberal court in the future.

Oh, and Scalia's dissent is a bunch of bullshiat, especially if you read his concurrence in Gonzales. What a hypocrite, the man has clearly gone senile and can no longer even pretend to justify his decisions on anything besides partisan politics.
 
2012-06-28 04:21:56 PM

bugontherug: iccky: The binding precedent is that the mandate is not permitted under the Commerce clause

No sir. It is obiter dicta, and it would be even if 9 justices had signed onto it. It is dicta because it isn't necessary to the Court's final disposition of the case. Legally speaking, it's nothing more than Roberts opining his view of the Commerce Clause.


Then technically speaking, isn't the Medicaid rule also dicta since it wasn't signed onto as part of Roberts's majority opinion? That doesn't make sense to me.
 
2012-06-28 04:22:39 PM

qorkfiend: After all, Romney also raises taxes on the poor and middle class


Yeah, because stupid people always believe that. Besides, Romney will open fire first and that will get remembered, and morons see nothing wrong with cutting taxes on the rich for some reason.
 
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