The HCR ruling: there’s a pony somewhere
On the mandate, the Chief [Justice Roberts] then goes on to agree with Randy Barnett’s activity/inactivity theory. He writes:
“To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers. Industrial Union Dept., AFL”“CIO v. American Petroleum Institute, 448 U. S. 607, 673 (1980) (Rehnquist, J., concurring in judgment). As we have explained, “the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life as they understood them, putting into form the government they were creating, and prescribing in language clear and intelligible the powers that government was to take.” South Carolina v. United States, 199 U. S. 437, 449 (1905). The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.”
Roberts also construes the Necessary and Proper Clause narrowly ”” construing it to bring inactivity in the scope of the Commerce Clause would not be “proper”:
“[S]uch a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it. Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.”
So, what difference does it make, if Obamacare is held to be a constitutional tax? I repeat: it sets a precedent that limits the Commerce Clause.
The remedy for Obamacare is now a political one. We need to emphasize that. The Court will not save us. But this is a step better than if SCOTUS had said that anything goes under the Commerce Clause.
Of course, you could say this is a distinction without a difference. Call it a tax, call it macaroni—a mandate by any other name is still as stinky, and it should have been declared unconstitutional. I agree.
It underscores the task before us between now and November of 2012, both on the congressional and the presidential level. It is especially important to elect a Republican president to appoint new Justices to replace those who are likely to retire in the next few years. This is a long struggle, not a short one.
[NOTE: The title of the post refers to this joke, which apparently was Ronald Reagan’s favorite.]
Reading through the various opinions found here , just noted this comment from Ginsberg at p. 18:
“THE CHIEF JUSTICE’s novel constraint on Congress’ commerce power gains no force from our precedent and for that reason alone warrants disapprobation.”
However, Robert’s analysis could well serve as a blueprint for future rulings finding limits to the commerce clause, even if its a purely academic statement today.
I agree on the long struggle part. To those feeling down again I say remember the prohibition fight. It was won and against an amendment not just a law or court opinion!
Well, legally speaking, social security is a tax but for nearly 80 years people have believed that they’re paying into a little strong box with their name on it. So I’m not anticipating any riots in the street against this latest switcheroo that the dems played on us.
Also, like SS, Obamacare is a parasite attached to an activity we would and should be doing anyway, having health insurance, there is no way to “resist” this law without hurting ourselves.
The only silver lining I can see and I’m squinting hard to see it is that we will realize that there is no cavalry to ride to the rescue.
Why is it that the Supreme Court “swing vote” usually comes from the conservatives? The lefties always hang together, law be damned. Maybe they understand what is at stake.
I agree that this ridiculous ruling should fire up conservatives, but it is indeed ‘stinky macaroni’. Thanks to all of you who are looking for the silver lining on such a dark day. You’ve lifted my sour mood a bit.
I think Roberts made a grand compromise and fell on his sword to limit the commerce clause without wading into politically-determined policy. This was as close to overturning the mandate and keeping everything in place (best possible outcome) as possible and still side with the 4 liberal justices (they all have to work together again.)
It’s a victory.
To all the “pessimists”, I understand how you feel (yep sucks a big one!), but get up and fight and enjoy the fight. We remain our biggest enemy. This is not the Mongols in the suburbs killing every living thing and coming our way(though that could be quite salutory in some places) we retain many advantages, let’s use them. One observation, I think Roberts has given out a poison pill that the Dems will wish they hadn’t swallowed.
Wonks, please help me here:
It’s a tax in that if you don’t get insurance you pay a penalty which goes to the government, the idea being that with this stick, the young and healthy and cheap will compensate the insurance companies for having to cover the old, sick and expensive. So far, so good?
But this tax or penalty is peanuts compared to the cost of buying health insurance, so it’s cheaper to pay the tax and buy insurance only when you already have a medical problem, which the ACA will compel insurance companies to sell you no matter what.
This, as the law stands, is perfectly legal. But how can it not have the effect of swiftly bankrupting the insurance companies? Or was that the idea all along? that the govt would have to step in and “rescue” the health system?
So for those who want to nationalize healthcare, their plan is right on schedule.
holmes: I wish I could agree with you that it’s a victory, and I appreciate the pep talk, but I think it’s a defeat, although a defeat from which the right can recover, if it is strong enough.
The problem is that legal rulings are complex, and this one certainly is. The distinction between commerce clause powers and taxation powers may be clear to us, but to most people all this will mean is “Obamacare was upheld, therefore it’s a victory for Obama.”
And that’s the way the MSM is spinning it, of course. People often read headlines and not much else. Here’s a typical headline that blurs the distinction: “Supreme Court upholds Obamacare individual mandate as a tax.” The article goes on to say in its first sentence, “In a victory for President Barack Obama, the Supreme Court upheld his signature health care law’s individual insurance mandate in a 5-4 decision, upending speculation after hostile-seeming oral arguments in March that the justices would overturn the law. “
armchair pessimist: I believe that was the intent.
In fact, as luck would have it, right now Rush Limbaugh is playing on his show the tape of Obama (I think from the 2008 campaign) where Obama is talking to supporters and says that in his first term he will pass a health insurance law that will have some of the characteristics he wants, but won’t yet eliminate employer-provided health insurance. He says that will happen later–give it perhaps 10 years.
I just found a link to it. It was actually in 2007, addressing the SEIU:
It’s a defeat – for now.
If you want repeal, you can no longer rationalize a fantasy that the Supreme Court will do your heavy lifting for you. You’ve got to get out and elect candidates who will repeal it
Considering nearly 3/4 of all Americans want it repealed and they haven’t been hit by it yet, I’d say the electoral environment just got a lot friendlier for those who pledge repeal, and a lot more hostile to those opposed.
You think someone in favor of repeal is *only* going to repeal Obamacare, think again. Even if we don’t win enough of this coming election for repeal, it only gets worse for the Obamacare supporters from here on out. There is no doubt in any economist’s mind precisely what it is going to do to the economy.
Finally, whatever else John Roberts has done today, this is the first acknowledgment *in law* that government imposed taxes and costs of regulation are taxes. This may be the greatest Trojan Horse in history – and the four liberal justices signed off on it.
Not to mention the ruling on the Medicaid funds, which is going to put a real spike in the federal government’s ability to *force* states to comply.
This could be Progressivism’s high water mark, as well as a Pyrrhic victory of epic propertions. Yes, they hold the field for now. But a generation later, Rome had conquered Pyrrhus’ homeland
Still think it’s a pyrrhic victory (as someone else noted) when the win entails a massive tax on everybody to support a program that is generally unpopular.
Melson: yes, yes,yes! This is what I meant by a poison pill. The Libs are now trapped by this thing. They must now defend taxation, something they did everything on earth to avoid including lying. Since it’s unpopular they must enforce it. No amount of it’s “for the children” etc will save them. Though they hold the field they have ceded the intiative.