I asked him whether a future Congress could just repeat what we saw in this instance call a mandate a penalty for the purposes of passing the bill, then switch around and call it a tax in court. That is never going to happen again, he insisted. No one is ever going to fall for that again The findings in the (health care) bill were Commerce Clause. The findings in the next bill will have to be taxing power.
He's right. The Commerce Clause argument is dead. The taxing argument can be decided at the ballot box.
I also agree with Barnett that five justices on our side is not enough as we always have to get all five. We need more and a Romney two term presidency would give us more. Then our odds would greatly increase.
It is no where near dead.
There is a huge difference in an opinion between dicta and the ruling.
Roberts comments about the commerce clause is mere dicta and does not need to be followed by any court in the future.
Hardly. A tremendous amount of usurpation has been done to date using the Commerce Clause as justification. Roberts basically said it cannot be taken to the next level. But so what? Now usurped powers can be declared a tax, no Commerce Clause needed. All Congress has to do is prohibit something and attach a tax penalty and Roberts would vote to uphold it, the Tenth Amendment be damned. This was a really, really bad day for Federalism.