Powered by TypePad

« Thursday ObamaCare Death Watch | Main | Let's Play Two! On To Holder »

June 28, 2012



--Hi, Ignatz!--

Hi JMH! You've been sorely missed. Hope I obliquely answered some of your points in that 7:06 comment.


Whatever else one may wish to say about Roberts, it is beyond dispute that without the full support of conservatives, who elected Bush, he would never have been appointed to the Court. Neither Clinton nor Obama would have nominated him. His split from the other conservatives on the Court is an affront to all those conservatives whose support and work permits him to sit in his glory at the Supreme Court. He may say he owes nothing to them but to do his best, but that’s not true. He owes allegiance to the judicial philosophy that they approved and elected. There can be no doubt that the “liberal” wing fully understands that. It is a matter of grave disappointment.


Ig@7:06-- the power is explicit in Article I, Section 8, Clause 1, US Const., power to tax and spend for the general welfare.


--The constitution doesn't guaranty liberty...--

The Constitution was most assuredly designed to guarantee our liberty.
Perhaps the people have been so busy wondering how electoral politics would play out rather than first principles that our guarantee has been eroded to such an extent that our electoral process is no longer up to the task of guaranteeing our liberty either.
Without a rugged constitution carved in stone and not a 'living' one, the electoral process eventually kills it and the republic devolves to who gets to carve up the carcass.


In theory, the taxing power was self-limiting. Too many taxes and the legislators were out. I don't know that it's still the case.


the power is explicit in Article I, Section 8, Clause 1

It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.


A separate issue and one I do not concede is calling this fine or penalty for uncooperative behavior a tax.

Me neither, but I'm about to become a lot more uncooperative than I've been.


I'm hoping someone here will explain how this law is different from nothing. Without a mandate to purchase insurance, the demand does not go up. The tax simply covers the government's expense for the uninsured, if it can be collected from the poor who can't buy health insurance.


--Ig@7:06-- the power is explicit in Article I, Section 8, Clause 1, US Const., power to tax and spend for the general welfare.--

I'm a Madisonian; you evidently are a Hamiltonian.
It is to our shame that Hamilton appears to have wiped the floor with Madison at this point.
Please explain how the expansive view is compatible with any limitations on the Federal government.
If the answer is 'vote the jokers out' seems to me the constitution could have been quite a lot shorter.
Suggested language:
Article one, section one, clause one:
'one man, one vote and the devil take the hindmost'. The end.


Ig-- it may be semantics, but the Constitution is a statement of each person's inalienable rights and liberties, and a legally binding limitation of federal government powers to the enumerated powers agreed to in the Constitution by the People and the States. What happens when a tyrant ignores those protections and overrereaches beyond enumerated powers? Well Marbury gave us judicial review by SCOTUS. And what if the tyrant ignores the constitution and SCOTUS decisions? How many Divisions does the SCOTUS have? How are our constitutional protectins guaranteed then?

Rick Ballard

"It is a matter of grave disappointment."


No Ivy could ever disappoint me. Look on the bright side - he's completely inoculated against being charged as being a conservative for the remainder of his tenure on the bench.

That's gotta be worth something.



Ig -- actually I am philosophical much more of a Madisonian-- but I'm foremost a constitutionalist, and the taxing power has been interepreted by the SCOTUS, and Roberts' decision is well within that taxing power law as far as I can see.


Richard Epstein at SCOTUSBlog:

But when it comes to the taxing power all bets are off. Here the key statement that he makes is this: “it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.” With all respect, the point is little short of absurd. The earlier portion of the Chief Justice’s opinion noted the huge expansion in federal power that could arise if the government were permitted to regulate various forms of inactivity. What possible argument then could be put forward to say that the same risks do not apply to the expansion of the taxing authority to those same forms of inactivity, in ways that it has never been exercised before. The two examples that the Chief Justice gives are the tax on buying gasoline or earning income. Both of those are obvious activities that have long been regarded as acceptable bases for taxation. But not buying health insurance is not an activity. I am not aware of any tax imposed on individuals for not buying gasoline and not earning income, or not taking a bath or not working in a home office. To allow this to stand as a tax is to accept the same kind of absurdity that was rejected in connection with the commerce power. Intellectually shabby, to say the least.

--but I'm foremost a constitutionalist, and the taxing power has been interepreted by the SCOTUS,--

Then you should object as heartily to this corruption of the Constitution by the SCOTUS as you would have to Dredd Scott or Plessey or as you presumably do to Roe.


Ig-- the SCOTUS taxing power decisions to which I refered were the historical decisions in the 19th and early 20th century. Roberts didn't make up any new law here, that's why this is not like Dred Scott, Korematsu or Roe -- IMO.


Old bad decisions are just as bad as new ones.
And new bad decisions based on old bad decisions? Likewise.
Had Dredd never been overturned would you be siding with Roberts declaring Barry ineligible not because he isn't natural born but because he's Bill Ayers wholly owned cabana boy? Actually that's a close one there but you get the drift. :)


There may be a few million like young, healthy workers who rather use the premiums for car payments or an apartment with a pool but most of the uninsured are the type who don't pay taxes UNTIL NOW.

Not all waitresses are young, not all home health workers are young, etc. In today's world, unless you work for a major corporation you are probably going to fall into the working poor who do not have insurance offered to them. In fact, I have two in my family, one who has nothing available, the other only catastrophic coverage with a $5000 deductible. They pay lots of taxes and have no deductions to offset and they don't make enough money for things like pools and new car payments.


Mark Levin (paraphrase: The beltway Republicans are so used to losing that when they lose really, really big, like today, they call it a major win.

Captain Hate

Blow the whistle and ring the bell; JMH is back.


one point that Levin raised is that Roberts didn't say which one of the enumerated taxes this tax falls under.

He also said Thomas is being called disgusting racist names at the lefty blogs and they are calling for Scalia to resign.


great to hear from you.
I guess my biggest disapointment today is that I now have to wait until November, to see if Roberts' brushback of Obama on trying to get away with lying about HC not being a tax is going to effectively boot him out of office.

les nessman

"How many Divisions does the SCOTUS have? How are our constitutional protectins guaranteed then?"
Q1. none
Q2. At bottom, then they are protected by the 2ndA, which has more divisions than the Army. As with any divisions though, they are only as powerful as they are willing to be.


it was odd listening to Levin argue vehemently against it being a tax, because it sounded like agreement with Obama's vehemency that it was not a tax. So was Obama telling the truth? If so, why was the IRS recruiting slews of new workers?

((ObamaCare: A Dozen (More) Damaging Disclosures - Forbes
27 Apr 2012 ... IRS Agents: The Obama administration is diverting roughly $500 million to hire
additional IRS agents and other employees to help implement ...))


Ig. Before our little conversation gets to far off the rails let me say this. I don t agree with Roberts did. It would have been better for roberts to do what was done in Alvarez today. Invalidate an unconstitutional law and give congress a map on how to make it constitutional. Bailing out a statute on grounds the Congress did not use to pass the law cheapens the constitution. But that s easy for me to say. I m not going to be CJ for the next 20 years.

JM Hanes


"Please point me to the article or clause which provides congress the power to effectively force...."

Unfortunately, the constitutional ground starts to shift as soon as you find yourself using words like "effectively." This time, the folks who said demanding your money actually sounds more like "effectively tax" won the day.

I, personally, suspect that Roberts may have started out crafting an opinion against the mandate, and realized, in the process, that trying to use the particulars of this case to set the limits of the Commerce Clause would make a disastrous array of other unintended consequences all but inevitable too.

Normally, the Court refuses to hear cases that don't tee up the constitutional issues to its liking, but there's no way they could turn this one down. I guess what I'm shouting is that the Commerce Clause is the very heart and soul of progressive, statist, expansions of power, so if Roberts thinks he needs a better case to definitively kill the beast, I'll go with living to fight another day.


--If so, why was the IRS recruiting slews of new workers?--

The IRS also collects lots of penalties and interest.


--I m not going to be CJ for the next 20 years.--

Too bad. I'd much prefer you to Mr. Roberts.


Rick, if Roberts thinks this buys any goodwill, he's really, really stupid.


--I, personally, suspect that Roberts may have started out crafting an opinion against the mandate, and realized, in the process, that trying to use the particulars of this case to set the limits of the Commerce Clause would make a disastrous array of other unintended consequences all but inevitable too.--

But isn't that effectively (there's that word again) what he just did? A clear majority rejected the mandate's constitutionality under the commerce clause with Roberts explicitly doing so in his opinion.
But instead of providing a guideline for the congress to draft a constitutional version as NK suggests he balances a ball on his nose and starts jumping through statists' hoops to provide them with a guideline to enlarge the enumerated powers to encompass just about anything Nancy Pelosi's little mind can dream up.
I guess, unlike yesterday, the left likes judicial activism again.

coo coo

My wife has no idea what Obamacare is or that there was a SC ruling today. Ignorance truly is bliss. The good news is she takes my voting advice.

Melinda Romanoff


Pree-cisely my thinking. I've made sausage before, but not standing on my head, one handed. He has worked a piece of logic that, mathematically, is really quite elegant. I can follow it much like a proof.

I think I get why the other law geeks get off on this sort of debate. I do the same thing when a piece of news drops the perfect cheap trade in my lap.

More James Brown, please!


IG at 842. No you don t roberts is orders of magnitude smarter than me and probably has more guts

BTW shouldn t the House pass a resolution that it has the taxing power to tax able bodied adults who don t own and maintain a hand gun for 'the general welfare'au


Paul Clement said there is no mandate, only a tax for not having insurance. That's a huge difference. He said the mandate was not upheld, rather the bill was reconceptualized as a tax for not having insurance.


Rick Ballard


He's not stupid and he's not currying favor. He also isn't changing the Court's direction with this decision. He has dissents from the left as well as the right and it ain't an indication of having reached the happy medium.

I don't buy White Queen logic or Humpty Dumpty definitions , even when it's the Chief Justice who has decided to believe six impossible things before breakfast while insisting mandate means tax because he's the master and that's that. If he believes he's carving a new path then he should beware of using the opaque fog of obscurantism as his guiding light.


Romney campaign rakes in $3 million today with six hours to go.

Jim Rhoads a/k/a vjnjagvet

If ElJefe or Eljefecare survives this decision, I will buy you a lobster dinner, Rick. Check me out about Feb 1 2013 to settle up.


Romney already has a new ad out on today's event.


The US Conference of Catholic Bishops rejected the Supreme Court decision on Obamacare today saying the ruling does not address the fundamental flaws in the law.

JM Hanes


Effectively sidelining the Commerce Clause in a few paragraphs is an entirely different, infinitely simpler, proposition than drafting a comprehensive ruling explicitly defining where the limits lie. Obamacare is, in fact, a yawning black hole of Constitutional issues, which are not confined to the mandate, which in turn made severability a monster issue in its own right -- and we don't know what the lay of that land, or a lot of other land either, looked like in Chambers.

I never noticed anything in the Constitution about SCOTUS providing legislative guidelines, but I wouldn't wish the torture of trying to rehabilitate a gazillion pages of Obamacare on anybody, even if weren't Congress' responsibility. You don't really want SCOTUS rewriting legislation, do you? It was pretty clear in oral arguments that they don't want to do it.

I could be wrong, but it just makes more sense to me to think that Roberts might have seen some writing on the judicial wall he really didn't like, than to think he just suddenly jumped ship on the commerce clause (despite the arrows he aimed in its direction) because....?

Rick Ballard

Jim Rhoads,

I agree President Romney will sign at least a partial repeal, although Feb 1 might be a little premature. I would have preferred to see the Court reject the suits on ripeness rather than have this decision going forward. It may be Chief Justice Roberts has a long range scheme in mind with this decision being a corner stone but if he does he needs a servant standing behind him whispering 'Thou art mortal.' at all times. The dog only has four legs, no matter what the Chief justice says.

Danube of Thought

It's all going to come down to Election Day, 2012. If we can't win it there, we can't win it anyway. If we can, then we will look back on this decision as very good for the conservative cause.

I'd love to have had the short-term schadenfraude, but I'll be happy to roll the dice for the long-term Waterloo.

JM Hanes


"while insisting mandate means tax"

Shades of inigo, eh? Would everybody who has done a word search to see if "mandate" actually appears in the bill, please raise your hands?

Voldemort Delenda Est !                   Sandy Daze

If the decision went 5-4 against the Obamacare, the decision would have been seen as political and an called an example of a broken SCOTUS. In addition to running against a ¨do nothing/obstructionist Congress¨ Voldemort would add to his enemies, the ¨political SCOTUS.¨ Instead of conservatives now having to defend the SCOTUS decision against Voldemort´s charges, Voldemort and every Dem will now have to defend himself & themselves against the charges of implementing the LARGEST TAX EVER LEVIED IN THE HISTORY OF THE WORLD, the OBAMATAX.

I´ve always been told that its better to be on offense than defense. At every turn, conservatives and Republicans need to put this tax at the feet of its creators, the Democrats. With a House vote on repeal the week of 9 July, all voters will know exactly where their representative stands on the OBAMATAX - the LARGEST TAX ever placed on a people in the history of the world.
BTW - do some here really believe that the future of the republic depends on this decision by SCOTUS? If so, you have already given up, putting the Republic´s future in their hands, rather than accepting responsibility as a citizen, a voter.

To repeat Jane´s wisdom:

Get off the Bloody couch and do something to save your Republic !

Roberts wins no mater what happens. If democrats win in November, they're stuck with a monstrosity of a bureaucratic nightmare guaranteed to breed bad will. If Republicans win, they will probably repeal the health care act. Either way, Roberts comes out smelling like a rose. And is guaranteed a place in history.


This is probably a stupid question . . . but what is the difference between taxing you today for the health care you will receive after the age of 65? And taxing you today in order to cover the costs of your health care in the future should you elect not to carry health insurance?

It seems to me the medicare tax is more coercive. I can't elect out of medicare, but I can avoid having to pay the Obamacare tax by having an insurance policy.


Precisely, DoT.


Danube. I hope you have recognized that I have come to greatly respect and admire you.
I second Clarice's opinion.
You are wise and mature, Sir.

Melinda Romanoff


And you will receive a W-2 for that benefit, just like they've always wanted. And so will every other employee they don't waiver.

And if you work for a company that has just one employee that opts out of the plan, the whole firm gets fined per employee, per day in certain circumstances.

Me, on the other hand, can not wait to see what Geithner chooses to say when Jamie calls for another favor.


Here is the latest on the Romney Moneybomb, no word on how much Obama raised today.

(CNN) – Mitt Romney's presidential campaign said on Thursday it had raised $3.2 million following the Supreme Court's decision upholding President Barack Obama's health care law.

The fund-raising figure included money raised through 9 p.m. ET. Earlier in the evening the campaign said they raised funds from more than 26,000 donations.

Melinda Romanoff


There's a 50:50 shot it's repealed before November. It rests on a single Mormon head.

[Sara- You know the irony is too sweet, because it's not Mitt.]


I can't elect out of medicare, but I can avoid having to pay the Obamacare tax by having an insurance policy.

Not only can't you elect out of Medicare, you will be billed a min. of $89 a mo. for the privilege and you will still need a Medicare Advantage supplemental plan at additional monthly cost.


[Sara- You know the irony is too sweet, because it's not Mitt.]

Sweet indeed.


Whoa. I actually had a life this afternoon and just learned that Nadal was out of Wimbledon. Come on Fed.

Rick Ballard


Better shoot your Inigo remark over to Amy Howe at SCOTUSblog. She used mandate eighteen times in her Plain English take, including

Although the Chief Justice rejected the government’s Commerce Clause argument, he agreed with one of the government’s alternative arguments: the mandate imposes a tax on people who do not buy health insurance, and that tax is something that Congress can impose using its constitutional taxing power. He acknowledged that the mandate (and its accompanying penalty) is primarily intended to get people to buy insurance, rather than to raise money, but it is, he explained, still a tax.

How many five legged dogs are running around at your place?


This much I now feel confident about. There is no mandate. I am not mandated to buy insurance.

I can be taxed, but I could always have been taxed.

How about this? How can the Sec of HHS grant tax waivers?


Mark0, that is a question for the ages. Along with.
Who put the BOMP in the Bomp b bomp b bomp.
Who killed JFK.

How can the ONLY TINY MAN ALIVE, THE ONLY ONE WHO CAN SAVE US FROM A DEPRESSION.....LIL TIMMY GEITHNER....Be so smart, yet not smart enough to work TURBO-TAX and PAY his own FAIR SHARE of TAXES!!!?


Can the HHS SEC. ABORTIONS R US SEBELLIUS grant me a waiver from INCOME TAXES too???

JM Hanes


The dogs at my house are all strictly imaginary, so they're not limited to 5 legs. I've also got this AbFab juicer which turns lemons into lemonade....



Barry Mann
Some man
Tiny man.


Bill Whittle: Why Don't You Mind My Own Business? (Video)

JM Hanes

Meant to say thanks to all for the warm welcome back!


--Meant to say thanks to all for the warm welcome back!--

This place always benefits from sane people. :)


You add so much to the conversation, jmh, how could you not be missed?


@ bgates

"--What you're not getting is this severely constricts the Left's ability to dictate our lives by having Congress penalize certain behaviors without incurring the political cost of using the word 'tax', because Roberts ruled that the Left has the ability to dictate our lives by having Congress penalize certain behaviors without incurring the political cost of using the word 'tax'.--"


What Roberts proved is that no matter what you call a tax when it hits SCOTUS Roberts will treat it like a tax and give you the benefit of the doubt. So the Democrats could call a tax "Super Choco-Sundaes for Everybody", pass it and claim that they didn't pass a tax. And when it gets challenged and gets to the Supreme Court they'll go ahead and treat it like a tax anyways.

So no I'm not buying the argument that Democrats, or Republicans, will pay a price for passing new taxes. Especially if they can call them anything but the word "tax".


With Holder and Obamatax, this got lost in today's Court news, but I find this more upsetting that Holder and on par with Obamatax.

The justices ruled 6-3 that a 2006 law making it a federal criminal offense to lie about being decorated for military service was unconstitutional



If you read bgates a little closer I think you'd see you're agreeing with him.


I actually had a life this afternoon and just learned that Nadal was out of Wimbledon.

MarkO, I'd just been thinking that men's tennis had become predictable, with Fed, Nadal, Djoko, invariably making the semis.

Still, on esthetic grounds it will be hard to top Gorgeous Görges vs. Ivanovic, at least for us brunette fans.


...who can now do so till they're 26!

If their parents will let them!

Great to see you, JMH.


What activity can now be NOT REGULATED due to Roberts "brilliant" Commerce Clause upholding?

The Constitution was supposed to shield us from democracy, majority rule.


We need some more amendments to the Constitution to try to limit Federal power.

Carol Herman

Roberts was on both sides of the table!

Up until Monday, he was writing the majority opinion that was going to be signed by Scalia, Alito, Thomas, and Anthony Kennedy.

Something happened here. Because no one has signed onto the dissent!

Can Roberts be the one who wrote the opinions of both sides? Yup. Because he wrote the majority opinion.

And, all he did was BLOCK others from writing an opinion in a matter of days.

So what you see looks like a cut & paste.

And, yes. A TAX.


Her or his loved ones favored my husband a whole lot of and
that is exactly reason why they're going to purchased appealing wood urn to not overlook your man's experiences certain to she is forever in the front individuals really like routinely.

Beasts of England

Sara@6:14 - I can 'retire', but have more than a dozen years before I'm eligible for SS, Medicare, or the like. If they're available. I should have said that I may go Galt...

Weren't some rights specifically reserved to the people? An odd ruling. The small relief that it is properly characterized as a tax, is overridden by the idea that most anything - not joining a gym - can be taxed.

Welcome IRS agents and bureaucrats reading about my erecti..., er, uh, cholesterol medicine. lol

Thomas Collins

Well, now that it is the morning after, I am definitely a glass more than half full guy.

1. We now have the Chief Justice to cite when we point out that ObamaCare is the tax hike to end all tax hikes.

2. Five SCOTUS justices have pared back Congress' ability to use the Commerce Clause and Spending Clause in furtherance of the regulatory state. Yes, it's an ever so slight shift, but it's a shift that puts the focus on the taxing proclivities of the progs.

3. Although Roberts' opinion doesn't mandate that a GOP Senate treat the ObamaMandateTax as a tax for the filibuster rules, it provides political cover for so doing.

Thomas Collins

Plus, if we lose this election, we could have Janice Rogers Brown, Mike O'Connell, Miguel Estrada and Viet Dinh replacing Ginsburg, Breyer, Kagan and Sotomayor, and America's goose would still be cooked. On to November 6th to fight against the ObamaMandateTax and the rest of the prog agenda.

Thomas Collins

Randy Barnett sees the glass as at least half full. See LUN (via Instapundit). Especially note his discussion about the role of the people in righting the constitutional ship.


With only 6 hours notice, over 100 attend Tea Party rally in St. Louis last night. Oh - and the St. Louis high temp yesterday was 107F. More here.


'I see Roberts as saying "if people are dumb enough to support a new tax just because a bunch of politicians say it isn't a tax, they can't look to us for their salvation."'

If the constitution allows congress to pass a tax law by calling it something else, then maybe it needs an amendment to make doing that unconstitutional. OTOH if "the people" are supposed to be smart enough to ride herd on congress for such behavior then they can take care of themselves ... and don't really need at least 75% of what the collective is doing to take care of us.


Sara -- a comment about your doctor who says he's not going to get rid of all of his medicare patients --

I'm anticipating that ObamaTaxCare will turn out to be a catastrophe for me and for my family, and I'm sure that I'll be very busy trying to deal with the fallout to us personally if Republicans do not gain enough seats in the House, Senate and White House to repeal this thing. But in all of the horror, I hope that I will remember to notice the one teeny tiny bright spot in all of this.

Which is that every arrogant asshole MD living a cushy life off of their insured patients thinks that if the government kills health insurance then they can just "fire" all of us patients and open up a "concierge" practice taking care of the super rich. Guess what -- they are going to get a brutal lesson in the Law of Supply and Demand. If the only people who can afford doctors (or the only people who can afford doctors at the fees to which they have become accustomed) are the top one-one-hundredth-of-one-percent, then the US has WAY more doctors than the 0.01% needs.

The comments to this entry are closed.