1. When looking at the Obamacare case, many wondered if the individual insurance purchase mandate was severable from the rest of Obamacare. According to the Chief Justice, the mandate is severable from itself. You take (what he admits to be) an unconstitutional scheme of mandate and penalty. You eliminate the mandate by saying there can be no such mandate and you call the penalty that the law calls a penalty a tax because a tax in the absence of a mandate would be okay, and since there is no longer a mandate, it is possible to reimagine the penalty as a tax and therefore the new law without the mandate and the penalty, but with an optional tax, is constitutional even though that is not the law that Congress actually passed. Everybody got that?
2. The argument from judicial minimalism fails. There are a lot of things that you can call a judge rewriting a law so that the law becomes what Congress should have passed if Congress had asked the judge how to make an unconstitutional law constitutional. Judicial minimalism isn’t one of those things.
3. I hope that Roberts really believes his sophistry.
4. This idea that the Roberts has implanted a limited government time bomb in the Obamacare ruling by writing that the interstate commerce clause does not give Congress the power to mandate that an individual purchase a product from a private company is premature at best. The practical effect of his ruling is that it leaves Obamacare’s mandate and penalty scheme in place but under a different name, but it is worse than that. The four liberal Justices who joined Roberts expressly affirmed that Congress had the power to mandate that individuals buy health insurance. One more liberal Justice and we will get a case that will uphold the mandate under different reasoning. The brilliant John Roberts “enumerated and limited government time bomb maneuver” just becomes a trivia question about the original superseded and obsolete rationale for how the Supreme Court upheld the power of the Congress to mandate that individuals buy health insurance.
5. I would like to buy Michael Knox Beran’s idea that the Chief Justice’s refusal to strike down Obamacare was an example of Roberts trying return us to the tradition of the first half of the 1800s when judicial review of congressional statutes was a very seldom used power. On a completely unrelated matter, did anyone else notice that Roberts voted to strike down the federal Stolen Valor Act on the same day Michael Knox Beran thinks John Roberts taught us all a valuable lesson about how judicial review should only very, very rarely be used? I think I’m getting mixed messages. Though that doesn’t mean Robert was wrong in his vote to strike down the Stolen Valor Act (my first instinct is to agree with him.)
6. I agree with Wesley J. Smith that the Supreme Court endorsement of Obamacare’s constitutionality will serve to improve the law’s popularity. Conservatives can talk all they want about the “AHA!” moment where the Court calls the Obamacare penalty (er.. tax…er…rutabaga) a tax. The same majority opinion also refers the tax as too small to actually compel compliance and is therefore just a small optional tax for those who choose to forgo health insurance. That doesn’t mean that arguments against such a policy can’t be marshaled. But are those arguments more or less effective than the argument that Obamacare was an unconstitutional extension of federal power? For those who don’t have a settled opinion on the matter, but who might have leaned toward the idea that Obamacare was unconstitutional, the Supreme Court just gave them every reason to give President Obama the benefit of the doubt.
June 29th, 2012 | 12:36 pm
#3 — I don’t. I hope he is going through some temporary temporizing phase and comes to his conservative senses as soon as possible. I hate to think we are stuck with a CJ who has “grown in office” and will do whatever it takes to get along with the political establishment in DC.
June 29th, 2012 | 1:13 pm
#6. I don’t buy it. Americans in general don’t like the notion that the gov’t can order you to purchase any product. That’s not going to change because John Roberts says so.
As to Obamacare itself once 2014 hits (if heaven forbid it’s not repealed before then), remember that in general most people are quite happy with their health insurance overall (that’s why those of use who support moving to individual based insurance need to be realistic that nothing like that is likely to happen). The number of people who will gain insurance is relatively low compared to the number who will lose theirs, and the latter group is far more influential since it’s full of folks who actually vote.
June 29th, 2012 | 1:31 pm
Kate, well for Roberts’ own sake I hope that he really did vote according to his sincerely held view of constitutional norms. The alternative is that he has sold of a piece of his soul for fool’s gold.
Brian, I don’t think people have to like it. There is a difference between a legitimate but undesirable use of government power on the one hand and an illegitimate and undesirable use of government power on the other. The Supreme Court just told America’s swing constituencies that Obamacare is a legitimate use of government power as far as constitutional norms are concerned and, in practice, is no different from the state law enacted by President Obama’s opponent. Is that the end of the world politically? No, but it helps allay some concerns over Obamacare, and shrinks the ideological space between Obama and Romney on the issue (they are both mandate guys.) I don’t know how much this helps Obama, but my sense is some. If the election were to be otherwise close, this could be the difference. Though a series of sufficiently good or bad reports from the Bureau of Labor Statistics would outweigh the effect from the Obamacare ruling.
June 29th, 2012 | 1:57 pm
Regardless of the decision of justices, Obamacare was never going to determine the election (although Mitt’s history could have easily done so by discouraging the base if they didn’t loathe Obama so much). For “America’s swing constituencies” Mitt needs to run on the deficit, the deficit, and the deficit. Even if by some miracle the economy improves during the next 4 months, the deficit is still gargantuan, and the squishy middle HATES deficits.
June 29th, 2012 | 2:06 pm
Pete, It seems that you’ve been influenced by Santorum too much. Romney saw or sees the error of his ways, or don’t you believe in redemption? While Obama and the Catholic Bishops do not yet see their errors
June 29th, 2012 | 2:37 pm
Brian, if was to be an otherwise close election, a lot of things can make a difference and the Supreme Court decision and the increased public understanding of the law as constitutional (and it will probably boost approval of the law too) helps. That isn’t a counsel of despair because other things matter too. It is just noting that this probably helps (but does not ensure) the President’s reelection.
Hen, when has Romney renounced Romneycare?
June 29th, 2012 | 4:52 pm
I think the lawsuit was a distraction, because there was never a guarantee that the REST of Obamacare would be struck down just on the basis of the mandate being invalidated. Voters should understand that THEY have to take responsibility for laws enacted by Congress by not electing idiots who will enact such insane interventions into the private sector. That is clear now. And Obamacare is just one area where Obama shows he cares nothing for real liberty OR law, and will shrug off the constitution and any statute (immigration, Defense of Marriage Act) whenever it plases him.
June 29th, 2012 | 5:11 pm
Raymond, “I think the lawsuit was a distraction” We’ll have to disagree because I think the case involved important questions of constitutional norms.
June 29th, 2012 | 8:08 pm
“because there was never a guarantee that the REST of Obamacare would be struck down just on the basis of the mandate being invalidated.”
Well, there was never a guarantee that the Supreme Court would actually use the words of the law itself to determine whether the mandate was a tax either. The only things guaranteed are death and taxes, har de har har.
But the hope was that the Dems had screwed up by not including a severability clause in the law, something which is pretty much boilerplate legalese. Why didn’t they? Who knows. Maybe if they had Roberts would have been content to strike the mandate. But because there wasn’t one, he had to preserve the mandate somehow, since he clearly had no intention of voiding the whole law. Oh well.
June 30th, 2012 | 8:07 am
Pete, in the other case of the other day that I discuss in another post, Roberts also sided with the liberal side of the court. I don’t know about his soul, but something has happened to the way he looks at his job and how he deals with cases that come before him. If he were deciding both cases on the grounds of individual liberty, I’d understand his thinking, but he’s not. At least Justice Kennedy is being consistent about that issue in the two cases. I don’t understand what is happening with Roberts and the convoluted rationalizations of pundits on his behalf haven’t made sense of the matter to me, yet.
June 30th, 2012 | 8:49 am
Kate, I dunno, He voted with Scalia, etc. on the juvenile justice case on Monday (I think.) You’re right about the personal liberty contradiction between the Stolen Valor case and Obamacare.
July 1st, 2012 | 11:21 pm
“You’re right about the personal liberty contradiction between the Stolen Valor case and Obamacare.”
Not exactly or necessarily. Stolen Valor was thrown out on a facial challenge. You could have accomplished the same thing, by dissenting on the facial challenge, and agreeing in part with Alito, but dissenting on the facts and throwing it out on an as applied challenge, rulling that the claim that the joker was a medal of Honor recipient was implausible per se. Also the greatest personal liberty contradiction is probably being a judge, or a lawyer in the first place. The just isn’t that much of a clear personal liberty stake in either position.
Arguably at least ObamaCare is not incompatible with personal liberty. If the IRS is going to tax me anyways, it might as well give me an option to evade taxation. ObamaCare is just such an avoidable tax/penalty. That is a penalty is simply a tax subject to defeasance upon the occurance of an antecedent condition (I buy insurance before 2014).
Theoretically we could have a 60% tax/penalty rate, and certain people could choose to pay anywhere from zero to 60%. The 0% tax rate more or less involves a host of nudges or “distortions”… in which case we would all be suffering from the lack of personal Liberty that afflicts Mitt Romney (who also understands that taxes are just penalties subject to complete defeaseance upon the occurance/vesting of antecedent conditions, how he pays 14% on a 35% rate).
If ObamaCare is not compatible with personal liberty, why do rich people pay accountants to more or less turn taxes into penalties, and then find conditions under which the penalties do not trigger/vest? Why is personal Liberty the absence of nudges? (answer: because Rich people have already moved thru History’s progression, having turned taxes into penalties, and then prevented the vesting of the penalties(selling out of an IRA) by accepting nudges(holding unto it).
July 3rd, 2012 | 8:22 am
John, not every liar will be obvious and pathetic. In the meantime, the act was struck down over a pathetic and obvious liar, so how does anyone prevent or inhibit the subtle liar?
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