The Morning After

Randy Barnett surveys the new constitutional landscape he helped to create:

This is a bittersweet day for our Constitution and the system of federalism it established. First the sweet: today the Supreme Court reaffirmed that Article I of the Constitution does provide limits on the powers of Congress that are enforceable in the courts.

In his majority opinion, Chief Justice John Roberts accepted all of our arguments about why the individual insurance mandate exceeded the Commerce Clause: “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” he wrote. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”

 

Comments

[Melinda Romanoff]

Yes, but meanwhile, set up the cans.

[Jim Ryan]

The 3D chess theory says (er, my interpretation of it, anyway):

1. Roberts's duty was to sink Zerocare (write for the majority with Kennedy and the other three) because that's what he believed was the correct decision given the Constitution and given his duties as a justice.

2. This would have been good for his side - the conservative side - but Roberts decided he wanted even more good for his side. So he rewrote part of his opinion, declaring the thing a tax in that part, and intending to sink Zero and Obamacare.

He knowingly violated his duty, the theory goes.

[DublinDave]

Oh, by the way, all this is moot. The Dems don't have the dough for this.

No,we don't, but the richest 5 per cent of Americans do.

[Ignatz]

--What happens if you don't pay the fine or "tax"?--

I'm not sure what happens right now. As I recall and as was discussed yesterday I don't believe an explicit enforcement mechanism is in place.

You can be sure that the next time the Dems are in power though that a mechanism such as the one I detailed above about excess benefits and the 200% tax and criminalization of non payment would be very quickly drawn up.

[Clarice]

Wonder if HHS is backing off of destroying the Catholic church.

MOTUS shows that Michelle is arguing there is no separation of church and state on Obamacare.
http://www.michellesmirror.com/2012/06/winning-it-isnt-all-its-cracked-up-to.html#comments

[Jack is Back!]

Jim,

I haven't read the decision in its entirity but didn't Robert's say that ACA is constitutional if the mandate is considered a tax or something to that effect. IOW's, he does not actually come out and call it a tax merely that if it is a tax then its constitutional.

Or am I looking more like a pretzel than usual:)

[Jim Ryan]

Iggy, jimmyk took issue with that argument of mine. It does depend on ripeness.

[Ignatz]

--No,we don't, but the richest 5 per cent of Americans do.--

No, they don't either Davey.
That's the nasty little surprise which never dawns on you in your perpetual Tequila sunrise state.
But it's dawning on the poor fools in Europe a few years before we hit the same brick wall. And if you think those bricks are hard now just give it twenty or thirty years to allow demographics to have their way.

[Clarice]

RNC on Obamacare this morning--
http://www.youtube.com/watch?v=99KFGiBc7Vw

[Ignatz]

Yeah I saw that Jim. Jimmy's smarter than me so I'll ride his coattails. :)

[Jim Ryan]

Impeach over a definition? Wasn't that tried before, in a sense?

Ha! "Is" No, you couldn't practically impeach because you wouldn't have enough evidence about Roberts's intention. But the point is that if you espouse the 3D chess theory, you accept that in principle Roberts should be fired.

[Gus]

Obama picked Sotomayor and Kagan. G.W.Bush picked Roberts.
Roberts voted with Kagan and Sotomayor.
They kick us in the balls, We lend them our boots. We are fucked when our best is Libtard light.

[Melinda Romanoff]

Jim-

Not there yet, gotta stew in it.

[jimmyk]

So - 17 Ds join the vote for Criminal Contempt, and 21 Ds join the vote to essentially override the use of Executive Privilege to refuse turning over the requested documents.

Impossible, because I just read from some MSM outlet that it was a "party line" vote. Surely the MSM wouldn't get that wrong?

[Clarice]

I think Roberts is not a traitor or affected by his epilepsy medication. He's a federalist and did what he could to sustain the principles of federalism. YMMV, but the attacks o him IMO are overblown.

[peter]

Live at the Apollo?
I have it on CD. The day he died, I was walking in Greenwich Village, and they had a window display of LPs he had recorded as homage to him. In the centerpiece was an old turntable, and on it was a vinyl copy of Live at the Apollo.
His seventies stuff with Maceo Parker was pretty good too. Makes great background music.

[Jim Ryan]

Jack, I don't know. If he didn't really say "it's a tax", then that adds another nuance to his chess which goes over my head at the moment.

Iggy, I'll just ride your coattails, then.

[Chubby]

((If I subscribe to the view that Roberts's decision is brilliant and cunning, I'm faced with having to support his impeachment. No?))

and if Obamacare is not a tax, you are faced with having to support Obama as a truthteller.

[henry]

Icome back to the ACA is still in effect, it costs me too much money (I am an employer), the costs can only rise at a huge multiple of any potential revenue increase in my business, and I am not alone. The economy will circle the drain until this thing is gone. So Roberts will repay me Tuesday for Obama's hamburger today. Bad deal all around.

[Clarice]

Apparently the tax issue will be an administrative nightmare.
Many of those without health insurance file no tax returns.

How will people prove they have insurance? Will insurance companies have to issue 1099s? If the coverage is under a group plan, the companies may not have the data on the individuals covered.

[Clarice]

Left out something
Many of those without health insurance file no tax returns.How will the govt determine who has insurance or not and who must pay the tax?

[jimmyk]

Part of that reaction comes from the idea that the political system is incapable of action, so we need the Supreme Court to solve our problems for us.

It's a bit more than that. As someone (iggy and bgates, I think) pointed out, there's a reason the Constitution enumerated the powers of government, as opposed to just saying "Congress can do whatever it wants, and if you don't like it, elect someone else." They recognized that democracy (or republicanism, if you wish) wasn't a guarantee of freedom and protection of individual rights. I recognize that this was a partial victory, and that we can (and likely will) toss out both Obama and his mess of a bill come January. But that doesn't mean there isn't an important place for a SC that keeps the government in check.

[Jane]

Re: Holder needing a pardon - I think he is covering for Obama, so he may need a pardon too.

[Captain Hate]

Sheila Jackass Lee defecates in hat again http://thehill.com/blogs/floor-action/house/235591-house-rejects-dem-motion-against-issa

[Clarice]

Agreed, jimmyk. Still, over the past few decades Congress has grown sloppier and sloppier, passing poorly crafted bills which leave the implementation and meaning to courts and executive branch administrators.

[Jim Ryan]

He's a federalist and did what he could to sustain the principles of federalism.

I agree (I think). It looks like he may have done something wonderful for the republic. (Maybe!) But I'm also exploring the notion that in doing so he violated the duties of a justice. Not sure.

[Melinda Romanoff]

peter-

No, I had a brain cramp earlier.

Cold Sweat.

[henry]

A small thing, but helpful, Walker will not implement ACA in WI.

[Gus]

Jane, Holder can sit in jail until Nov.7. Then Obama pardons him.
This is so simple. Holder knows that OBAMA KNOWS.
Obama CANNOT abandon Holder.
Obama was in the loop on Fast and Furious.
This country has become lawless. There WILL BE VIOLENCE. When the Govt. no longer obeys the PEOPLE all bets are off.

[Ignatz]

--Iggy, I'll just ride your coattails, then.--

OK, if you don't mind being to tied to Fearless Fosdick. :)

[Ranger]

Many of those without health insurance file no tax returns.How will the govt determine who has insurance or not and who must pay the tax?

Posted by: Clarice | June 29, 2012 at 11:02 AM

One more interesting wrinkle here. This law just required everyone in the United States to file a tax return. The law states that you are exempt from filing if

a) you owe no taxes

or

b) you have paid your taxes in full for the year (of course, the only way most people can prove this is to file their tax return). If you have paid your taxes in full, you only need to file a return if you want your refund.

Since a lot of people are now going to owe taxes because they won't have healt insurance (thanks to the removal of the requirement for states to expand Medicaid), they are going to have to file a tax return, even if they earn little or no income.

[Clarice]

Exactly, Ranger..and how will it be possible to enforce that? When I used to travel to Eastern Europe it seemed there was always two people spying on every citizen; will we substitute IRS enforces in a like equation?

[Clarice]

*were always**

[Porchlight]

I've been thinking about that, Ranger. It is no longer possible to live completely off the grid. Every citizen must have a relationship with the IRS if only to report compliance with Obamacare regs.

What if you file an extension within IRS guidelines? Do you file a separate form to verify you have health insurance for that calendar year?

What if you had health insurance for calendar year 2015 but lost it January 1? Do you tell the IRS in April that you are compliant?

A mess. A 100% Democrat-created mess.

[Threadkiller]

http://giveusliberty1776.blogspot.com/2011/10/trip-down-memory-lane-with-mark-levine.html

[Chubby]

Clarice, I think it is people who have earned no income who don't have to file returns, not people who don't owe taxes.

[Extraneus]

No offense to the experts here, but these silver-cloud, 3D-chess theories read like tortured logic to me.

As of yesterday, the government can tell us what to do, and punish us if we disobey.

If a liberal justice had done what Roberts did, the left would be howling for his head.

[AliceH]

Posted by: pagar | June 29, 2012 at 10:06 AM

Thanks, pagar. I've added you to my contacts list, but don't hold your breath. It took me nearly 20 years to decide to buy a house because once that happens, it's not an easy decision to back out of if something/anything/everything goes horribly wrong. I'm happy to report that I LOVE my beautiful house and my sweet new town (I've been here 4 years as of last week), but the trauma of the commitment plunge is still large in my mind. My current interest in ex-pat retirement opportunities is still more in the way of reminding me I have a choice, but it's not a serious consideration. Yet.

[Chubby]

In years when I've had no income I've not filed returns, but whenever I've earned anything, I've always filed returns to report my income, even if my income minus deductions resulted in no tax owed.

[Clarice]

Yes, Chubby. I was careless.

[jimmyk]

Iggy, I'll just ride your coattails, then.

Then if I ride Jim's coattails, we'll be going around in a circle like the tigers in the no-longer-allowed Little Black Sambo.

[Rick Ballard]

Jim Ryan,

No impeachment. The Humpty Dumpty decision places sole responsibility for definitions within the purview of the Chief Justice. No high crimes or misdemeanors could pertain (vide Rex non potest peccare as the legal rationale).

OTOH - we can all be thankful we've moved beyond fearing those penumbral emanations into a realm lit by the reasoning of the progeny of the White Queen/Humpty Dumpty union.

Which floor wax do you prefer on your ice cream?

[Melinda Romanoff]

jimmyk-

Don't worry, I brought a pair of scissors!

[Chubby]

Clarice, not nearly as careless as I was yesterday when I based a whole argument on Roberts having mouthed NOT TRUE to Obama :) (It was Scalia.)

[peter]

I grew up with a friend from St. Albans, Queens, which is where James Brown lived. According to my friend, Brown used to put a black Santa in front of his house. I have a feeling that were he alive today, he'd be more like Jackie Robinson-- a Republican, than all the black celebs who are knee jerk Dems.

[Clarice]

No, chubby, it was Alito.I think Scalia didn't even show up IIRC.

[Porchlight]

Jay Cost:

Roberts has perhaps accomplished something similar [to Marbury] here. This country is hopelessly split along ideological lines, and it seems impossible for either side to gain any lasting advantage over the other. But maybe Roberts has managed to do precisely that. By nominally endorsing an overwhelmingly unpopular bill that is in major trouble anyway, he has created the political space needed to strike directly at the heart of liberal legal theory without inflamming the Democrats.

This, by the way, is exactly what the Warren Court of the 1950s and 1960s failed to do. Insufficiently concerned about political fallout, the liberals on that court plunged ahead with leftist policymaking from the bench. As a consequence, conservatives grew acutely aware of the dangers inherent to liberal judicial activism, organized politically to fight back, and thus was ultimately born the Rehnquist Court, which rolled back many of the excesses of the Warren years.

But how do conservatives continue their judicial project without similarly inflamming the left and stalling their own agenda in its tracks? Well, just maybe Chief Justice John Roberts showed the way yesterday. It's all about taking opportunities as they present themselves, not over-reaching, and playing the long game. Just as Marshall advanced the Federalist agenda by forcing Jefferson to endorse a decision that was inimical to his long-term interests, maybe Roberts just did the same thing to Barack Obama and the liberal Democrats.

http://www.weeklystandard.com/blogs/morning-jay-praise-john-roberts_647955.html?nopager=1

[Thomas Collins]

I have to depart from the criticism here of the Chief Justice of many of my friends. I wish I could have seen the CJ's reasoning coming. The CJ applied the tax precedents properly and gave us Commerce and Spending Clause reasoning that, if we can oust the current regime, will be very helpful in future SCOTUS cases.

Ignatz in other threads has made what are the best arguments I have seen from anyone that federal courts have given too much deference to Congress in the exercise of the taxing power. However, the CJ didn't break new ground here. Congress has always been given plenty of slack here. I do think the CJ should have been more rigorous in examining the issue of whether the ObamaCareMandateMegaTaxontheMiddleClass was a direct tax that had to be apportioned among the states in accordance with population.

On the issue of the now you see it now you don't tax, I also think the CJ was on solid ground. The CJ looked at the tax issue under the Constitution from the presumption of constitutionality federal courts traditionally give Congressional statutes. To me, it's one thing to criticize vigorously the CJ's reasoning, and quite another to say the CJ "sided with the left". The CJ's opinion, in putting a halt to the slide toward using the Commerce Clause as a general grant of legislating power to Congress, and slapping down the penalty on the states for not expanding Medicaid, is no gift to the left (or, if it's a gift, it's a gift of a Trojan Horse with self-evident truths polity warriors inside of the horse).

[Jane]

Chubby,

As I told you yesterday, it was Alito.

[Chubby]

will the tracking ultimately be the responsibility of health care providers who will demand either proof of insurance be shown, or demand the "tax" be paid?

[Chubby]

oh, oh, double careless.

[Melinda Romanoff]

Iowahawk-

"Obama picks "investments" like Al Davis picked QBs."

[Clarice]

Jay Cost is a real genius. Thanks for citing that.
TC, I agree wholeheartedly though I'm taking nothing but heat at AT in the comments for that view.

[Porchlight]

Chubby, I think it is going to be the IRS who takes the enforcement role. If you are uninsured the health care provider will deal with you as they have in the past and the IRS will find you for the tax.

[Ranger]

I think it is people who have earned no income who don't have to file returns, not people who don't owe taxes.

No, it is actually only those who owe money that are required to file (I've been through this with the IRS).

Now, if the IRS comes back and says you owe money, you have to be able to prove you don't. Having at least filled out, if not filed a return will help you do that.

I do have to admit that things may have changed, but when I went through this, if you owe no money to the government, then you have up to three years to file a return and claim your refund. After three years, the IRS is under no obligation to honor your refund request.

[Chubby]

Jane, names have never been my strong point. One minute after someone has been introduced to me, I forget their name. I never forget a face, but that doesn't help me with remembering names at all. I'd make a terrible politician, they have to remember names.

[LouP]

Some of my morning-after thoughts...

1. I think a lot of the consternation on the right comes from the fact that the whole issue was fraught with word-games. Good! It's about time that everyone in the masses became more aware of the lying and symantic games being played in Washington.

2. A review of local fish wrap this morning extols the Obama victory. Universal health care is just around the corner, etc., etc. Not a word about the cost or how we pay for it. People supporting the left somehow think that cost just doesn't matter, and that somehow it will be paid for without affecting themselves. IMHO this is a major problem that goes right back to the ignorant "willing believer" voters, and the MSM's duplicity in encouraging that view.

3. As a by-product, I wonder what the argument from opponents of Voter ID will be in light of the new requirement for proof of insurance that the Democrats have now imposed?

[Chubby]

You could be right Ranger. I thought that all income had to be reported.

[Porchlight]

IMHO this is a major problem that goes right back to the ignorant "willing believer" voters, and the MSM's duplicity in encouraging that view.

This is the biggest problem we face IMO. If we can't solve it, the country dies no matter what the courts do.

[tonynoboloney]

I take no solace from the various it's not so bad articles popping up this morning. The wind is fully out of my sails. Roberts is playing cute and those who are trying to cover his mistake as clever or longsighted will be proved wrong. The D's and liberals including Obama won the day and this may likely profoundly effect the election in Nov.

Much to my chagrin there is no effective Tea Party movement, and what there is is weak and unorganized. Boehner and many of the Republican Congress are too, weak and unorganized and I have little faith they will work very hard at repealing ACA even if the houses are won in Nov. Romney is the weakest candidate since McCain.

Why so many so called conservatives and Republicans continue to carry water for this sorry bunch is beyond me. Roberts included.

The Presidential election will be a bloody and drawn out affair, no thanks to the Robert's decision. I find myself discouraged once again with my side.

[Jane]

No problem Chubby, I didn't mean to sound so harsh.

[Porchlight]

I know you can file a return late without getting an extension if you are getting a refund. I've done it many times. If the government owes you money, they'd just as soon not give it to you.

However, I've always filed them eventually, so I can't say if there is any penalty for never filing.

[Ranger]

I thought that all income had to be reported.

All income does have to be reported, just not by the person receiving it. You're employer, your bank, and any company you have an investment relationship reports your income to the IRS.

If you are self employed, then you are required to report the income as an empoyer and pay estimated taxes on it.

[Porchlight]

As a by-product, I wonder what the argument from opponents of Voter ID will be in light of the new requirement for proof of insurance that the Democrats have now imposed?

Good question, I've been wondering about that too. I suspect they will attempt to maneuver by bleating "but voting is different."

[Melinda Romanoff]

Tony-

You gotta cousin named Ellie?

[Chubby]

((this may likely profoundly effect the election in Nov.))

that's what I'm worried about. they will play up the decision as a bigtime win for Obama, and the "everyone loves a winner" principle will kick in

but, even so, I don't think he's got a cakewalk ahead of him

[Ranger]

Well, I think that when a lot of Obama voters discover that they are not going to get the "free Obamacare" since the Medicaid expansion is out, and they now owe the government instead of getting a freebee, I think the celebrations will be short lived.

[Captain Hate]

Romney is the weakest candidate since McCain.

And the strongest at the same time.

[Ignatz]

I pretty much agree with TC at 11:40.
Once the mandate was found to be beyond the commerce clause the court had to consider the government's further argument that in fact the penalty is a tax (it's quite permissible in court to simultaneously state two or three contradictory arguments in order to win your case; it's almost like wives wrote the rules)
Roberts granted the government's contention which is certainly plausible and proceeded from there.
I still believe the dissenters were correct in blowing off all of the government's arguments and that regardless of the political ramifications the most legally defensible position was their view.

--On the issue of the now you see it now you don't tax, I also think the CJ was on solid ground.--

TC, If you're still around could you expand on that a little because that's the hardest part of Roberts reasoning for me?
Reminds me of the old Chuck Berry song; Somtimes I Do Then Again I Think I Don't.

[Ignatz]

--Well, I think that when a lot of Obama voters discover that they are not going to get the "free Obamacare" since the Medicaid expansion is out.--

I don't think that's been given enough play practical wise not just legally.
I don't see how Barrycare survives without that cost shifting to the states and I virtually guarantee even some of the blue hells, if not all of them, will opt out eventually. Their budgets simply cannot defy mathematics anymore regardless of their progressive chops.

[Rick Ballard]

TC,

When the CJ provides definitions of intent which are contrary to the plain language used or when he fully engages in rewriting the legislation as he did with this gem

The Medicaid expansion thusviolates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. Pp. 51–55.
(c)
The constitutional violation is fully remedied by precluding the Secretary from applying §1396c to withdraw existing Medicaidfunds for failure to comply with the requirements set out in the expansion. See §1303. The other provisions of the Affordable Care Act are not affected. Congress would have wanted the rest of the Act to stand, had it known that States would have a genuine choice whetherto participate in the Medicaid expansion. Pp. 55–58.

(From the decision (syllabus portion), then he has, IMO, obviated theoretical potential future gains by engaging in conduct very similar to that which brought the Warren Court into disrepute.

[Manuel Transmission]

I don't see how Barrycare survives without that cost shifting to the states and I virtually guarantee even some of the blue hells, if not all of them, will opt out eventually. Their budgets simply cannot defy mathematics anymore regardless of their progressive chops.

I just heard that Rob McKenna, our WA AG running for governor is going for implementation of 'BamTax. Coincidently, we are spending the day with him tomorrow. Boy, is that going to be an interesting time!

[Thomas Collins]

Ignatz, my thinking on now you see it now you don't is this.

1. In a federal statute such as the federal Anti-Injunction Tax Act the ("FAITA"), the very fact that Congress classified the tax as a penalty could be viewed by a federal court as indicating that Congress didn't intend the FAITA to apply. Plus, finding that the mandate was not a tax for FAITA purposes doesn't implicate the presumption of constitutionality federal courts traditionally give Congressional acts, especially in the tax area (with a nod to your arguments that perhaps federal courts should reexamine this deference especially when the tax is clearly targeted toward changing behavior as opposed to funding governmental operations).

2. Turning to the taxing power part of the CJ's opinion, the CJ viewed himself in a different posture here. Unlike his FAITA analysis, which in effect was a de novo review, here he was examining the mandate with a view towards the presumption of constitutionality. Thus, cases he cited such as New York v. US, which under a de novo review standard wouldn't have compelled the mandate being classified as a tax, provided a plausible basis for so classifying the mandate. That's all the CJ felt he needed for this part of the opinion in light of the presumption of constitutionality.

3. So, when I say the cases support the CJ's opinion, I'm not saying that one looks at the prior cases such as New York v. US and concludes one must view the mandate as a tax. My assessment is that those cases plus the presumption of constitutionality support this part of the CJ's opinion (and make me kick myself for not even considering this reasoning).

[Extraneus]

I understand that Jay Cost thinks that "inflaming" ones adversaries is a really really bad thing, but it took me a while before I realized that the whole excerpt wasn't a joke.

[cathyf]

I posted this on the dead thread before I realized everybody is over here:

Sara -- a comment about your doctor who says he's 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.

[Ignatz]

Ross Kaminsky at Amspec has a good review of things; one not too complimentary of Roberts, but not unfair either.

[rse]

I think I have a new question for all SCOTUS nominees and maybe all politicians: Explain your definition of individualism. Then explain why you think it has mattered in American history.

And see what the answers are.

I am still flabbergasted that all these ed reforms are premised on "the myth that the individual is a thinker and a decision-maker."

I mean I knew that basically but to actually flat out state it and then argue that you are developing a new paradigm you would like to see implemented that is based on sociology, anthropology, and psychology theories is just nuts.

Like people and lives and economies are play things to be rearranged. No wonder John Goodlad said people would be more upset by the education reforms than Obamacare if they understood how far reaching it was.

And so many Rep Governors are just merrily implementing with their staff members and advisors with their political science degrees with no sense that that might affect their policy advice.

And all these advisors writing that Romney agrees with lots of Obama's education initiatives.

I got an email that jeb was in Washington State yesterday and what wonderful reforms they were implementing. Really?

Why are Republicans so eager to hawk digital learning for all these tech companies? Why don't they get it's just a tool. They are recommending ed become very expensively vocational.

[Ignatz]

Thanks TC. That clarifies it perfectly. Don't know that I agree with him, but I understand what he was doing better.
I found this quote from the dissent pretty hard to argue with;

"Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs."

What is the limit on the power to tax now? Is there one? I'm not sure Roberts has an answer.

[sailor]

Well, Ranger, the "people" who are so happy about Obamacare will not know that they are going to have to pay a tax (they are only hearing that their treatment will be free) until the plan is implemented--2014! Therefore, they will vote for Obama--don't you think?

[Porchlight]

That is why Romney has to get on message and not let up, sailor. It was the plan all along that people wouldn't learn the bad parts until after the election.

[Charlie (Colorado)]

I think you guys are making this over-complicated. I only skimmed, but here's what I think happened.

(1) it's not called a tax, so the Anti-Injunction Act didn't apply; they granted certeriori

(2) It wasn't constitutional under the government's first theory, the Commerce Clause

(3) It wasn't constitutional under the government's second theory, "Necessary and proper"

(3) But the government *did* offer a third theory: it's a tax. That even after BHO swore it wasn't a tax. But it *is* in the argument.

And since it's the rule that you have to find a law constitutional if there's any reasonable way to do so, it turns out to be constitutional under the power to tax.

BUT that means it really is a tax. Either BHO *has* committed to a massive and massively regressive tax, or it's unconstitutional.

Since there's no constitutional limit on the power to tax (if I'm mistaken here, someone tell me what it is; I've been asking this question a lot) then the solution is in the political process not the court.

[Ranger]

Depends on who has how much money to get their argument out. I think a 30 second radio spot saying "If you make less than X dollars a year, and you don't have health insurace, in two years you're going to have to pay X,000s of dollars for health insurance, or X dollars in fines. Enjoy Obamacare!"

[Clarice]

rse, I'm thinking states are --if they're smart--looking at all those federal mandates they joined to keep from getting funds cut off and deciding the Roberts decision now gives them the right to tell DoE and all the other federal agencies to shove it, they're now opting out,

[Thomas Collins]

"We have no way of knowing how many States will accept the terms of the expansion, but we do not believe Congress would have wanted the whole Act to fall, simply because some may choose not to participate. The other reforms Congress enacted, after all, will remain “fully operative as a law,” Champlin, supra, at 234, and will still function in a way “consistent with Congress’ basic objectives in enacting the statute,” Booker, supra, at 259. Confident that Congress would not have intended anything different, we conclude that the rest of the Act neednot fall in light of our constitutional holding."

Rick, in pages 55-58 of opinion, the CJ is a little more nuanced in his analysis than the syllabus might lead one to believe (see above for an extract from that portion of the opinion). In general, on the issue of severability, federal courts are very reluctant to croak an entire statute when they find a portion unconstitutional.

As with his now you see it now you don't part of the CJ's opinion, I'm not saying the CJ's Medicaid reasoning is beyond challenge. I'm simply suggesting that if one reads the entirety of the CJ's opinion, I think it's fair to conclude that he was rigorously dealing with tough issues that an equally rigorous opinion could have decided in a different manner (ironically enough, it has been speculated that the CJ also is responsible for most of Thomas', Alito's, Scalia's and Kennedy's dissent, and that CJ changed his mind after authoring that dissent, which was going to be the majority opinion).

[Danube of Thought]

"the richest 5 per cent of Americans do"

Actually, they don't and it's not close. In any case, the Dems don't have the votes to take any more of it from them.

Forget impeachment--won't happen; won't even be discussed.

Holder will never face a crminal trial.

[sailor]

People were seen yelling after the decision (outside SC), I love my Obamacare and it's free! How to deal with those people, Ranger and Porch? They do not read the news or watch news programs on television, and they only care about what they think is free stuff. Romney, today, to my knowledge, has not been saying much. I agree with Porch that Romney needs to NOW get the message out--preferably with a little passion.

[Porchlight]

Yes, Ranger, radio and TV ads should run exactly like that.

[Melinda Romanoff]

Clarice-

That's precisely what I meant by the can opener. I don't know where to stop piling things on the table of reconsideration.

[Jane]

BUT that means it really is a tax. Either BHO *has* committed to a massive and massively regressive tax, or it's unconstitutional.

Charlie,

I agree with your analysis. What I am unclear on is why the House can't simply suspend all the taxes associated with it.

On a different note, I just finished my sign for the tea party stand out this afternoon and it says:

IT's
A
TAX!

Amy says no one will get it.

[Porchlight]

You can only do so much with idiots, sailor. Certainly the effort should be made. But the idiots are voting Dem anyway.

We will get much more bang for our buck with the folks in the middle who do pay attention and are concerned but have not had anyone explain the basics to them yet.

As always, the MSM is the single greatest barrier to spreading truth.

[Thomas Collins]

Clarice, your 12:57 PM post supplies another reason to think the glass is more than half full. SCOTUS may have croaked other mandates against the states.

[Melinda Romanoff]

Jane-

Oh yes they will. Ask Amy if her new W-2 on health benefits would have any impact in explaining her impending take home pay cut.

Hell yes they'll get it.

[Thomas Collins]

Charlie, there are constituional limits on the taxing power, but not many. Off the top of my head, I can think of one: no taxes based on race or ethnicity (for example, no income tax surcharge on those of French-Candadian extraction; I even doubt a tax on those simply claiming to be 1/32 Cherokee would pass muster).

Also, no tax surcharge on those advocating the dumping of Obama on November 6th.

[Danube of Thought]

Jeez, Tony, it's really touching to read about your heartfelt concerns. We hope you can make it through the day.

[Rick Ballard]

Mel,

The new W2 won't show up until after the election. I doubt (as in totally disbelieve) in the efficacy of trying to "educate" the Muddle stumps making up the 3-7% who lack the innate intelligence to have already made a decision regarding the President's competence. If they show up in November, they will vote according to the President's approval rating on the last Friday in October.

If you happen to speak to a Muddle stump, ask them how many people are looking for work among the people they know. That's the focal point.

[Clarice]

Number of unfunded mandates.http://www.cato.org/pubs/handbook/hb104/104-7.pdf

Is it now "up yours" to the feds on all these? Will the states who refuse end up solvent?

[jimmyk]

I think you guys are making this over-complicated. I only skimmed, but here's what I think happened.

(1) it's not called a tax, so the Anti-Injunction Act didn't apply; they granted certeriori

I thought the argument was that regardless of what they called it, only a tax interpretation can justify the mandate, so
"tax" it is, and once someone pays it, it becomes ripe for review.

I'm curious: Are there any commentators on the left who are making the "Roberts really gave the conservatives a victory" argument? If there were intelligent libs (don't ask me who) making the case, I'd be more inclined to accept it.

[Melinda Romanoff]

clarice-

I need to stop drinking caffeine. My imagination is off to the races on this.

Oh, baby!

[rse]

Clarice-if we can get through. One thing I have seen as that a fair number of Rep ed advisers are actually big govt sorts who just happen to mouth certain platitudes but do not really believe them.

Plus you get the Reps in the states who want the trough to stay full so their pals can access all these amounts up for ed.

There's no question this is applicable to ed but the typical legislator for example has no idea that most of the costs of their state DoED are paid by the feds. I think it's Chapter 2. Their loyalty is to the feds and they are well aware of the vision I am describing.

Because they have spent their adult lives being paid by the public sector from taxes, they have no concept what generates the money that pays that salary and benefits. Or that it's not just a matter of political power and shifting the pie around.

These clowns are gutting everything that made the West work and created widespread prosperity. It is stunning how little knowledge is left in these visions. It's nuts to think this will work. The only reason it has not been caught yet is it is just now coming to what were relatively well-functioning schools in the suburbs. Where the ignorance of the new principal or super is an asset as they seemingly will do anything that keeps those munificent salaries rolling in.

They are light years from our historic view of the individuals in these roles. Instead of stewards we get grasping parasites who do not know what they do not know.

[Clarice]

I think Slate had something like that,jimmyk, but I can't remember the author and something strikes a bell on talking points memo. Again, not sure.