Posted on 06/28/2012 12:15:09 PM PDT by Lorianne
The chief justice’s canny move to uphold the Affordable Care Act while gutting the Commerce Clause.
The scholars expected to see the court gut existing Commerce Clause ...
Roberts was smarter than that. By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well). Here's the Chief Justice's opinion (italics in original):
Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”
The business about "new and potentially vast" authority is a fig leaf. This is a substantial rollback of Congress' regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts' nomination, saying he did not trust his political philosophy on tough questions such as "whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce." Today, Roberts did what Obama predicted he would do.
(Excerpt) Read more at slate.com ...
Under 50.
Or anyone who has no debt and can live on a modest income will take the federal subsidy for their health insurance cost and will retire, work part-time or off the books.
Absolutely right.
But you see, many here don’t really like the rule of law much when it goes against their ideology. If a liberal judge “makes law” we rant and rail against “judicial activism”, but when they obey the constitutionally-defined mandate of the court system as Justice Roberts succinctly describes, they get mad and call him nasty names.
The source of laws, good and bad, is the legislature, and legislators are chosen at the ballot box. We should feel fortunate to have judges like Justice Roberts who resist the urge to overstep the boundary, even when the result is that we must turn our efforts toward repealing this horrible law in Congress.
Or they could levy a tax on NOT purchasing an abortion.
The precedent is set more for the latter (as tax on not doing something).
This is more the direction we are heading in with all the globull warming stuff.
Roberts = another screw-up by Bush 43.
Chief Justice Roberts is brilliant! He considers individual mandate and penalty is the form of a tax, therefore, it requires Congress to pass a new law to abolish it.
There is no need for Supreme Court decision on this issue in the future.
We need to elect a new Congress and we only need simple majority in both houses when it comes to tax.
Too many here are in the "Let's throw their rascals out so we can put our rascals in" camp.
Roberts has said, "Put on your Big Boy Pants and vote for the government you want".
Roberts has made a very sly ruling that will definitely help in defeating the Left. This ruling has emboldened the Tea Party, the Catholics and the Libertarians. I predict after everyone calms down this will be apparent.
My only thought requires a tin foil hat, this is so against his judicial philosophy in the past, the man has either flipped or he was blackmailed.
A stronger court that would shoot down all the progressive crap. The SCOTUS has let all this crap go on for centuries, it should be called the supreme disappointment.
Obamacare is the American equivalent of a certain enabling act of Germany in 1933. Since the rats know what to do with power, it marks the end of our republic and beginning of a totalitarian state.
Doing both blunts the effect of the first because then the charge of "right wing judicial activism" holds teeth.
By doing this, Roberts is held as a non-partisan, wiser than a Latina woman judge, all while knocking out the underpinnings of the usual liberal refuge.
Whether a devious clever scheme or a blunder, I believe that Roberts has delivered a Trojan Horse that the liberals have to walk into their camp.
I'll put you down in the "Its not wrong if WE do it" camp.
What I learned today is, just like you said, that Congress can pass any law under any guise and the Supreme Court will allow it and call it a tax for them.
So, what is the point of judicial review if the only review by the Supreme Court is the admonition to throw the bums out ?
Fix it yourself. We are just being paid to sit here in our black robes.
“It could also tax you $10,000 for NOT having an abortion.”
It could also tax you $10,000 to be a Baptist, $5000 to be a Methodist, and free if you’re Muslim. You still have the constitutional right to practice your religion - but at a cost.
There is nothing or no “Right” to which this could not apply.
This court has not limited Congress. It has only bent over and declared itself obsolete.
If his job is not to protect us from a Congress that ignores the Constitution, then he has no job at all.
nope, because it is now a tax issue, 51 is all it takes!!!
No, I think his purpose was political, to get Obama out of office as fast as possible and perhaps restore the primacy of Congress.
Now let’s see if any of these executive orders come to the Court.
“Congressional taxing power has always been unlimited”
No, it hasn’t. If you’ll remember it used to be that they could only raise them for the purposes of carrying out their enumerated powers. Before the Helvering decision, that is. Then they could only tax to promote the “general welfare.” But of course SCOTUS never struck down a law thereafter for promoting the welfare of some particular group as opposed to the nation as a whole. They left it up to Congress.
It also used to be that they couldn’t lay direct taxes, and that taxes had to be apportioned among the states. That is, until the 16th amendment. But that amendment only empowered them to tax income. Poll taxes, so far as I know, are still illegal. Since when can the feds lay a tax on the head of a man who has no insurance coverage?
Beyond that, there is a difference between engineering certain behavior via taxes/penalties and mandating behavior which is to be enforced via taxes/penalties. This may be a slight point, but I don’t see how they justify the mandate. To my mind it must at most be implied.
Exactly. Roberts only said that Congress has the power to tax; he didn't rule on the constitutionality of this particular, undefined tax. So what kind of tax is it? Oh, you say it isn't actually stipulated? For example, if it's not an income tax, then how can income levels be used to apportion the tax? Do they do this for property or sales taxes? How can Congress excuse itself from any tax?
The exemptions & waivers that were being granted by the DHHS were applicable only if the mandate had standing under the broad discretion of the commerce clause. Now it's been placed back in its proper context, which is nothing more than Congressional taxing power. But calling a tax a "penalty" is not just an exercise in semantics. Taxes have a real, legal meaning & basis. Obama wasn't just playing around for political points - his team knows what the real stakes are.
If the tax itself is ruled to be unconstitutional, Congress has the power to go back and amend it so as to conform to either the XVI or some other underlying principle (eg property taxes, tariffs, etc). So what if Congress doesn't amend, but lets a decision stand? That's right, it dies right there & then.
Is there anyone out there that gets what's happening yet?
I should add also, if it isn’t clear, that just because the taxing procedure is proper does not mean it’s constitutional. Let’s assume somehow the mandate penalty is not an illegal direct head tax. Let’s assume it’s an income tax, or whatever. Does that mean Obamacare is constitutional? no, because you can’t raise taxes for any old reason. And the spending that follows taxes cannot be justified by the power to tax without reference to what the taxes are spent on.
Taxing has to be constitutionally justified on the basis of how you’re going to spend it, too, not just on the procedure. You can only use the means of taxation for constitutionally allowable ends. That means the tax has to be in pursuance of the enumerated powers. The federal government taking over the healthcare industry is definitely NOT justified by the taxing power alone.
Of course, all of this is true for the Old Constitution. You know, the one that limited government and promoted liberty more than power. Since the “switch in time that saved nine” that Constitution is dead. See in particular the Helvering decision, which justified Social Security taxes on the basis of the “general welfare” clause, and Social Security spending on the basis of Social Security taxes. Helvering, needless to say, is up there with Dred Scott, Korematsu, Wickard, Kelo, etc. as one of the worst SCOTUS decisions ever.
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