US Presidential Election: Tuesday November 6th, 2012
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The media were initially confused because of the way John Roberts read the decision. He started off with a strong statement that sounded like they had decided to strike it down, but then went to a different point that ultimately led to his explanation of why it was being upheld.
A theory on that:
Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion. Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it?
If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA? The dissent, along with the surprising way that Roberts chose to uphold both the mandate and the Medicaid expansion, will inevitably feed the rumor mill.
http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf
The reason for the confusion is that in the summary the first few sections say that the Individual Mandate is not constitutional via the Commerce Clause. It's not til about the 4th part that they say it is via the Taxing Clause. So it sounds like they are striking it down for 3 sections while they are only saying that it doesn't apply to the Mandate.
The reason for the confusion is that in the summary the first few sections say that the Individual Mandate is not constitutional via the Commerce Clause. It's not til about the 4th part that they say it is via the Taxing Clause. So it sounds like they are striking it down for 3 sections while they are only saying that it doesn't apply to the Mandate.
First thoughts:
From reading the judgment, it looks as though only Kennedy and Thomas wrote dissents.
Also from first glance, this looks like Roberts just put the final nail in the coffin of the New Deal. The Commerce Clause has strong restrictions, and the (quite frankly spurious) activity/non-activity distinction now has SC precedent. If the Federal government wants to introduce nationwide social legislation, they have to do so through raising taxes, a quite frankly remote possibility in today's US. Not only that, the Medicaid expansion (covering 16m Americans) is subject to State approval, which does mean that States could scupper this Act's intention.
Just like Goldwater in 1964 laid the foundations for Reagan, I think this judgment is the first step in the conservative victory over Brennan, Blackmun and Warren's notion of liberal rights. The next 20 years will be very interesting.
From reading the judgment, it looks as though only Kennedy and Thomas wrote dissents.
Also from first glance, this looks like Roberts just put the final nail in the coffin of the New Deal. The Commerce Clause has strong restrictions, and the (quite frankly spurious) activity/non-activity distinction now has SC precedent. If the Federal government wants to introduce nationwide social legislation, they have to do so through raising taxes, a quite frankly remote possibility in today's US. Not only that, the Medicaid expansion (covering 16m Americans) is subject to State approval, which does mean that States could scupper this Act's intention.
Just like Goldwater in 1964 laid the foundations for Reagan, I think this judgment is the first step in the conservative victory over Brennan, Blackmun and Warren's notion of liberal rights. The next 20 years will be very interesting.
Yep, can't help but worry that there is a long game being played here.
"How dare the federal government take away my freedom to be uninsured so I can pass off my emergency medical expenses off on everyone else! And how dare them take away my freedom to be scared of changing jobs or starting my own business for fear of losing or not being able to afford health care! Insurance for all?! COMMUNISM! We may soon have no one who will be free to enjoy bankruptcy and lose their home due to illness and lack of insurance coverage! It's a sad day for freedom-loving Americans."
this made me laugh.
this made me laugh.
...or Roberts may just be better at reading the tea leaves...
Scalia and Kennedy will soon be replaced by progessive judges..
if you cant beat them....
Scalia won't leave as long as he's alive, (actuarially speaking, he probably should die soon, but he seems like one of those Strom Thurmond types that'll hang around forever) and Kennedy often as not has the power to decide cases single-handedly. I'd bet that, barring one of them dying, and presuming Obama wins re-election, both will still be on the bench when Obama's term is up.
Isn't Ginsburg the most likely to be leaving the soonest?
dampended my day there Excal.
We just need to keep the Presidency is all. Fortunately the demographics are heavily in our favour.
We may see this once or twice in the coming months:
what a clown the guy is...
Justice Ginsburg: ‘Congress Followed Massachusetts’ On Individual Mandate
http://livewire.talkingpointsmemo.c...owed-massachusetts-lead-on-individual-mandate
In her concurring opinion to uphold ‘Obamacare’ Thursday, Justice Ruth Bader Ginsburg pointed out that Congress, in creating the individual mandate, was following the lead of Massachusetts.
It’s an apparent jab at Mitt Romney, who enacted the same provision as governor in 2006, but has vowed to repeal the Affordable Care Act if elected president.
Ginsburg wrote:
Massachusetts, Congress was told, cracked the adverse selection problem. By requiring most residents to obtain insurance … the Commonwealth ensured that insurers would not be left with only the sick as customers. As a result, federal lawmakers observed, Massachusetts succeeded where other States had failed.
In cou*pling the minimum coverage provision with guaranteed* issue and community-rating prescriptions, Congress followed Massachusetts’ lead.
Ginsberg digging into Romney...
http://livewire.talkingpointsmemo.c...owed-massachusetts-lead-on-individual-mandate
In her concurring opinion to uphold ‘Obamacare’ Thursday, Justice Ruth Bader Ginsburg pointed out that Congress, in creating the individual mandate, was following the lead of Massachusetts.
It’s an apparent jab at Mitt Romney, who enacted the same provision as governor in 2006, but has vowed to repeal the Affordable Care Act if elected president.
Ginsburg wrote:
Massachusetts, Congress was told, cracked the adverse selection problem. By requiring most residents to obtain insurance … the Commonwealth ensured that insurers would not be left with only the sick as customers. As a result, federal lawmakers observed, Massachusetts succeeded where other States had failed.
In cou*pling the minimum coverage provision with guaranteed* issue and community-rating prescriptions, Congress followed Massachusetts’ lead.
Ginsberg digging into Romney...
http://livewire.talkingpointsmemo.c...owed-massachusetts-lead-on-individual-mandate
In her concurring opinion to uphold ‘Obamacare’ Thursday, Justice Ruth Bader Ginsburg pointed out that Congress, in creating the individual mandate, was following the lead of Massachusetts.
It’s an apparent jab at Mitt Romney, who enacted the same provision as governor in 2006, but has vowed to repeal the Affordable Care Act if elected president.
Ginsburg wrote:
Massachusetts, Congress was told, cracked the adverse selection problem. By requiring most residents to obtain insurance … the Commonwealth ensured that insurers would not be left with only the sick as customers. As a result, federal lawmakers observed, Massachusetts succeeded where other States had failed.
In cou*pling the minimum coverage provision with guaranteed* issue and community-rating prescriptions, Congress followed Massachusetts’ lead.
Ginsberg digging into Romney...
More likely just citing precedent.
Not sure if it was or was not or if it was how far the challenges got. But if it was not the fact that no challenges were made to it on a constitutional basis can in and of itself be a form of precedent.
But then again I try awful hard not to view everything through the Right vs Left lense, so I don't go looking for digs in everything everybody says.
When this case was argued at the Circuit level, one judge (who leans very far to the right) wondered during oral arguments whether invalidating the individual mandate would then invalidate one of the ultimate, prized goals of the GOP, which is to privatize Social Security, i.e., require Americans to buy private annuities that will fund their retirement. It's an interesting theory anyway...
The reality is we live in heavily polarised times. the court itself is a reflection of that.
Just wait till Obama's next nominee...then you'll see partisanship.
thought we have seen them all.
Honestly. If this health care bill had been signed into law by the Republicans, would this even have gone to court?
They are burnt up with hatrad for Obama.....which makes this all teh better.
I mean SCOTUS pick.
did some quick googling and the Mass. Law (or at least portions of it) were challenged in court, none of the cases seem to have made it very far in the court system.
of course they will challenge.
But they cannot do so indefinitely.
In the end Elections will have consequences.
I think you are being far too optimistic here. What we saw today was a rollback of Congress's regulatory powers and a gutting of the Commerce Clause. It is the end of the New Deal. Obama won the battle, but Roberts won the war.
I've read Roberts' discussion regarding the Commerce Clause. He states that if commercial activity exists, Congress does have plenary powers under the Commerce Clause. If, however, Congress engages in the extraordinary conduct of compelling commerce activity "on the ground that [an individual's] failure to do so affects interstate commerce", Congress will only then have exceeded its authority. In short, this case is easily distinguishable and effectively limited to the these kinds of cases. This means that the modern interpretation of the Commerce Clause continues.
As for the Medicaid portion of the decision, I'm still digesting that one. At first blush, however, I would say that it is somewhat reassuring that Roberts was joined by both Breyer and Kagan in that regard.
I'm pretty sanguine with the Medicaid portion. It basically says states can't be denied existing Medicaid funds if they opt out of the new Medicaid standards. In the end, I think it unlikely that many states are going to choose that path.
It may be that Roberts turns into a bit of a David Souter.
Yes, I see that possibility too - the key is, of course, how the Court develops this ruling. I see the liberal wing taking the narrow view you do here, and Alito, Thomas and Scalia drawing broader conclusions. I think the conservative legal movement are playing the long game, and Roberts is the type of incrementalist jurist who would keep chipping away at areas, rather than overruling them completely.
I'm taking a simpler view of things. Roberts is a corporate tool rather than a staunch tea party type. In the long run, this law protects the health insurance industry from things like single payer.
Have a look at Jeffrey Toobin's pieces on Roberts, they are excellent (if you haven't already, of course!):
http://www.newyorker.com/reporting/2009/05/25/090525fa_fact_toobin
http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin
Fox are giddily reporting this Holder contempt vote. Dems walking out look like a rabble.
if he morphs into a liberal that would be the greatest defeat of the Conservatives. But he did agree with Citizens United...so I remain suspicious.
Likewise, I see your possibility as well. The Right incrementally has tried to erode Congress' broad Commerce Clause powers as exemplified by the cases of Lopez and Morrison in particular. And today's decision appears to erode Congress' powers further by effectively buying into the "broccoli argument".
However, as I see it, those very few instances, which have spanned over 17 years, have resulted in very little erosion of Congress' powers in my opinion. Frankly, I read those opinions, and I'm not really all that bothered. What's more, Roberts had an 'open net to goal' so to speak, and yet he gave two very big concessions that tend to speak against the ultimate goal of eviscerating the modern incarnation of the Commerce Clause: First, he explicitly gave great deference and legitimacy to the modern view of the Commerce Clause. Second, yes, Roberts figuratively took away Congress' AK-47, but he turned around, and handed them an M-16 in its stead. So now, Congress actually can make everyone buy broccoli by simply levying a tax if against those that choose not to. So, I'm not all that concerned at present.
Blackmun, a Nixon appointee, was a "Minnesota twin" with Chief Justice Burger, and they routinely allied with one another in advancing the conservative agenda. Several years later, Blackmun eventually had a change of heart. He eventually went on to author Roe v. Wade, and generally became a massive disappointment to conservatives by deciding consistently with the liberal wing of the court. He's one of many examples where supreme court justices lean leftward as they remain on the bench. I can't think of an instance where it goes the other way. And I think that's to be expected quite frankly. As Stephen Colbert has been known to say, "...reality has liberal bias." And when you're left to your own device without the pressure of trying to seek re-election, and you're left with cold, hard decisions that will affect the lives of millions, it is not that unusual to expect some right-wing judges to eventually lean leftward.
Good explanation on Robert's vote:
The political genius of John Roberts
By Ezra Klein , Updated: June 28, 2012
After Chief Justice Charles Evan Hughes deftly beat back Franklin Delano Roosevelt’s court-packing proposal, FDR said, with grudging admiration, that Hughes was the best politician in the country. “That was hardly the way Hughes would have chosen to be remembered,” writes James Simon in “FDR and Chief Justice Hughes,” “though there was much truth in the president’s remark.”
I doubt Roberts wants to be known for his political skills, either. But in today’s decision, he showed that, like Hughes before him, he’s got those skills in spades.
The decision today is being reported as 5-4, with Roberts voting with the liberals. Akhil Reid Amar, a constitutional scholar at Yale Law, sees it differently. “The decision was 4-1-4,” he said.
Here’s what Amar means: The 5-4 language suggests that Roberts agreed with the liberals. But for the most part, he didn’t. If you read the opinions, he sided with the conservative bloc on every major legal question before the court. He voted with the conservatives to say the Commerce Clause did not justify the individual mandate. He voted with the conservatives to say the Necessary and Proper Clause did not justify the mandate. He voted with the conservatives to limit the federal government’s power to force states to carry out the planned expansion of Medicaid. ”He was on-board with the basic challenge,” said Orin Kerr, a law professor at George Washington University and a former clerk to Justice Kennedy. “He was on the conservative side of the controversial issues.”
His break with the conservatives, and his only point of agreement with the liberals, was in finding that the mandate was a “tax” — a finding that, while extremely important for the future of the Affordable Care Act, is not a hugely consequential legal question.
“We won,” said Georgetown law professor Randy Barnett, who was perhaps the most influential legal opponent of the Affordable Care Act. “All the arguments that the law professors said were frivolous were affirmed by a majority of the court today. A majority of the court endorsed our constitutional argument about the Commerce Clause and the Necessary and Proper Clause. Yet we end up with the opposite outcome. It’s just weird.”
One interpretation is that Roberts was playing umpire today: He was simply calling balls and strikes, as he promised to do in his Senate confirmation hearings. But as Barnett’s comments suggest, the legal reasoning in his decision went far beyond the role of umpire. He made it a point to affirm the once-radical arguments that animated the conservative challenge to the legislation. But then he upheld it on a technicality.
It’s as if an umpire tweaked the rules to favor his team in the future, but obscured the changes by calling a particular contest for the other side. ”John Roberts is playing at a different game than the rest of us,” wrote Red State’s Erick Erickson. “We’re on poker. He’s on chess.”
By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.
But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.
“For those of us who oppose the Affordable Care Act as a policy matter, this is a bad day,” Barnett said. “For those of us in this fight to preserve the limits of constitutional government, this is not a bad day.”
And for President Obama, who has labored without success to find a bipartisan foothold in his advocacy for the Affordable Care Act, Roberts’s coup in writing an opinion that has found support on both sides must inspire some grudging respect.
The political genius of John Roberts
By Ezra Klein , Updated: June 28, 2012
After Chief Justice Charles Evan Hughes deftly beat back Franklin Delano Roosevelt’s court-packing proposal, FDR said, with grudging admiration, that Hughes was the best politician in the country. “That was hardly the way Hughes would have chosen to be remembered,” writes James Simon in “FDR and Chief Justice Hughes,” “though there was much truth in the president’s remark.”
I doubt Roberts wants to be known for his political skills, either. But in today’s decision, he showed that, like Hughes before him, he’s got those skills in spades.
The decision today is being reported as 5-4, with Roberts voting with the liberals. Akhil Reid Amar, a constitutional scholar at Yale Law, sees it differently. “The decision was 4-1-4,” he said.
Here’s what Amar means: The 5-4 language suggests that Roberts agreed with the liberals. But for the most part, he didn’t. If you read the opinions, he sided with the conservative bloc on every major legal question before the court. He voted with the conservatives to say the Commerce Clause did not justify the individual mandate. He voted with the conservatives to say the Necessary and Proper Clause did not justify the mandate. He voted with the conservatives to limit the federal government’s power to force states to carry out the planned expansion of Medicaid. ”He was on-board with the basic challenge,” said Orin Kerr, a law professor at George Washington University and a former clerk to Justice Kennedy. “He was on the conservative side of the controversial issues.”
His break with the conservatives, and his only point of agreement with the liberals, was in finding that the mandate was a “tax” — a finding that, while extremely important for the future of the Affordable Care Act, is not a hugely consequential legal question.
“We won,” said Georgetown law professor Randy Barnett, who was perhaps the most influential legal opponent of the Affordable Care Act. “All the arguments that the law professors said were frivolous were affirmed by a majority of the court today. A majority of the court endorsed our constitutional argument about the Commerce Clause and the Necessary and Proper Clause. Yet we end up with the opposite outcome. It’s just weird.”
One interpretation is that Roberts was playing umpire today: He was simply calling balls and strikes, as he promised to do in his Senate confirmation hearings. But as Barnett’s comments suggest, the legal reasoning in his decision went far beyond the role of umpire. He made it a point to affirm the once-radical arguments that animated the conservative challenge to the legislation. But then he upheld it on a technicality.
It’s as if an umpire tweaked the rules to favor his team in the future, but obscured the changes by calling a particular contest for the other side. ”John Roberts is playing at a different game than the rest of us,” wrote Red State’s Erick Erickson. “We’re on poker. He’s on chess.”
By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.
But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.
“For those of us who oppose the Affordable Care Act as a policy matter, this is a bad day,” Barnett said. “For those of us in this fight to preserve the limits of constitutional government, this is not a bad day.”
And for President Obama, who has labored without success to find a bipartisan foothold in his advocacy for the Affordable Care Act, Roberts’s coup in writing an opinion that has found support on both sides must inspire some grudging respect.
Well, I don't think that write-up by Ezra Klein is really all that insightful to be frank. Orrin Kerr and Randy Barnett are the lawyers who've been at the fore leading the charge against Obamacare. Their spin is expected.
More specific to their points, however, their Necessary & Proper Clause discussion is entirely a red-herring. The N & P Clause is not a source of direct power. It piggy-backs onto other powers. In effect, if a certain federal power is deemed to be unfounded under the constitution, the analysis ends right then and there without regard to the N & P Clause. And so since the individual mandate was found to be unconstitutional under the Commerce Clause, the N & P Clause discussion became moot. In short, there was no such thing as a federal limitation on this power.
As for the purported massive limitation on federal powers regarding the Commerce Clause, it must be noted that only once (I think) has Congress created a law to compel the entire citizenry to engage in a specific type of commerce. It's so infrequent that the abrogation of this federal power is essentially an empty victory.
And those two lawyers casually gloss over the fact that Roberts gave the liberals another methodology in which to exercise significant federal powers.
But I'm still not sure about this Medicaid deal. Excal, I see your point, but I worry about its impact on a macro scale. After all, there are many federal laws that are predicated upon a bit of coercion against the states. Are those laws now suspect? I'm still digesting...
More specific to their points, however, their Necessary & Proper Clause discussion is entirely a red-herring. The N & P Clause is not a source of direct power. It piggy-backs onto other powers. In effect, if a certain federal power is deemed to be unfounded under the constitution, the analysis ends right then and there without regard to the N & P Clause. And so since the individual mandate was found to be unconstitutional under the Commerce Clause, the N & P Clause discussion became moot. In short, there was no such thing as a federal limitation on this power.
As for the purported massive limitation on federal powers regarding the Commerce Clause, it must be noted that only once (I think) has Congress created a law to compel the entire citizenry to engage in a specific type of commerce. It's so infrequent that the abrogation of this federal power is essentially an empty victory.
And those two lawyers casually gloss over the fact that Roberts gave the liberals another methodology in which to exercise significant federal powers.
But I'm still not sure about this Medicaid deal. Excal, I see your point, but I worry about its impact on a macro scale. After all, there are many federal laws that are predicated upon a bit of coercion against the states. Are those laws now suspect? I'm still digesting...
Nancy Pelosi was on Ed Shultz just now. She indicated this ruling gives States the opportunity to go for Single Payer. I remember some mentioning this when the ACA was enacted.
Vermont is going for it and other Democratic states will now go for it too. This is how single payer came to Canada.
Business found it cheaper to operate in sates with lower health care costs.
Vermont is going for it and other Democratic states will now go for it too. This is how single payer came to Canada.
Business found it cheaper to operate in sates with lower health care costs.
These people are fecking monsters . . .
"Matt Davis, a Michigan attorney who was once the state Republican Party's spokesman, sent out an email that asked whether armed rebellion would be justified in the wake of the court's decision. According to Michigan Capital Confidential, a local news service that originally reported the missive, Davis sent it "moments after the Supreme Court ruling to numerous new media outlets and limited government activists."
"Matt Davis, a Michigan attorney who was once the state Republican Party's spokesman, sent out an email that asked whether armed rebellion would be justified in the wake of the court's decision. According to Michigan Capital Confidential, a local news service that originally reported the missive, Davis sent it "moments after the Supreme Court ruling to numerous new media outlets and limited government activists."
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