ObamaCare Lost on the Medicaid Mandate & Commerce Power. It May Yet Lose on the Tax Power.

Cato at Liberty ^ | 6/29/2012 | Michael F. Cannon

[hripka]

Supporters of the Obama health law are incorrectly reading the Supreme Court’s ruling as a victory.

First, the ruling severely limited the Obama health law’s Medicaid expansion, effectively giving states the green light to refuse to expand their Medicaid programs. Coupled with the fact that the statute already enables states to block the other half-trillion dollars of new entitlement spending, the law is in a very precarious position.

Second, the Court ruled 5-4 that the individual mandate is not a legitimate use of the Commerce Power. That too is a defeat for the government, even if it is of no immediate consequence.

Third, while the Court upheld the individual mandate as a tax, that ruling may be vulnerable to legal challenge.

Chief Justice Roberts wrote, “The Federal Government ‘is acknowledged by all to be one of enumerated powers,’” and, “The Constitution’s express conferral of some powersmakes clear that it does not grant others.” So it is interesting that Roberts did not specify exactly what type of constitutionally authorized tax the mandate is.

[bigbob]

Interesting theory. I’m sure there will be no end of private citizens who would be willing to sue on the basis of Obamacare being an unconstitutional tax. But taking control of Congress and repealing it would be much faster.

[MrChips]

Wow! It is not even a tax! OK, I think I will just ignore it.

[Talisker]

There is even less discussion about what type of constitutionally authorized tax the mandate is.

I’m not a lawyer. But it seems to me there may be room here for the same individual citizens who brought this case to again file suit against the federal government for trying to impose an unconstitutional tax. It may seem unlikely that Roberts would reverse himself on the Tax Power issue. Then again, since he never specified what type of constitutionally permissible tax the mandate is, perhaps voting to strike the mandate would not be reversing himself.

Hey FReepers - Chief Justice Roberts indicated it. Now the CATO Institute is indicating it. And, of course, yer own homegrown Talisker has been banging the drum:

So ain't it, like, worth the time and effort, to learn what all the hubub is about?

How Chief Justice Roberts Saved America

[yldstrk]

oh yeah, it will get litigated to death. It’s gone

[MtnClimber]

I wonder how many liberal, smart/er than the rest, goobermintists realize that they are being watched by gun owners and non-slavery activists?

[bigbob]

I’ve read the “One Stone” piece, thanks for reminding folks here of the importance of maintaining objectivity and educating ourselves, rather than just regurgitating talking points. Justice Roberts will be judged in the context of the history of Obamacare, which is still unfolding before us. But I for one am glad to have strict constitutionalists on the court, even when that means we don’t get the instant relief many hoped for. The remedy for bad, yet constitutional law must come from the legislative branch.

[Reality_News]

aside from obumma tax, does obumma know that 83% of doctors want to quit their jobs leaving poor americans to fend for themselves?

[Monorprise]

In a pinch appealing for mercy from the Federal employees in black robes is a provident and unforgettably unnecessary thing to do.

But I would very much prefer not to let it get to the point where I’m asking the Federal government to define the limits of its own power. Because at that point we have lost, and are affectingly BEGGING for lenient terms.

No this monstrous usurpation must be nullified and resisted. No free constitution of civil government can ever rest upon the discretion of the same government it’s meant to chain down. To say otherwise is madness.

[scooby321]

The other night on Greta she and Scott Walker were talking about this.

[ChildOfThe60s]

oh yeah, it will get litigated to death. It’s gone

And while you are litigating it to death, some of the 16,000 new IRS agents will be out confiscating your home and property for not paying the "tax". And you won't get them back.

Well, I've got news for Mr. Roberts. It's not a tax, it's tribute. It's extortion. It's protection. But it is sure as hell isn't a tax. So, if he had been around, Mr. Roberts would have ruled the Barbary pirates' demand for tribute to leave US ships alone to be a tax, and prohibited the President from defending US citizens?

So, Mr. Roberts,you brilliant constitutional scholar, do you know what happens to people who don't pay protection to a bully with overwhelmingly superior firepower? They get creamed. And being right counts for zilch.

Mr. Roberts can take his brilliant decision and shove where the sun don't shine. And if he needs help I'll be ready to do it for him. Lube not included.

[combat_boots]

I like the way you think.

[MMaschin]

I agree with the author - the mandate/tax in an unConstitutional capitation. So, there is the possibility that this can be sent back to the SCOTUS. The biggest problem is the a tax can not be ruled unConstitutional until after the tax is in effect. So noone is going to be able to send this to the court until 2014 after the tax goes into effect.

Let hope it’s repealed before then.

[ri4dc]

RE> does obumma know that 83% of doctors want to quit their jobs ...

I am thinking he’s counting on it. He needs another crisis or two or three. A doctor and overall health care shortage, because of those ‘evil over paid’ doctors, will do just fine. If re-elected, his HHS will start pumping out through “educational grants” paper doctors and nurse practitioners by the thousands all unionized and paid for in perpetuity by you and me. It will be his health army. Can you guess who the enemy of that force will be? Hint: The womb and the weary. It only grows bigger from there. Now be sure to eat your peas.

[clee1]

The only problem with your theory is “States” control medical licensing (MDs, NPs, RNs, etc.). The feds issue a DEA number for prescribing meds, but the States themselves control the actual ability to practice.

[ri4dc]

RE> “States” control medical licensing (MDs, NPs, RNs, etc.).

Thanks for the logic. Pardon me while I publicly eat more of my peas. In yesteryear it may have brought me some comfort. Seems Fedzilla is inserting itself in all kinds of State matters it hasn’t the authority for. Education comes to mind. Visualize hospitals being run by a bunch of NEA types or like the postal service, even the veteran’s hospitals. As the doctors are replaced by the fedzilla health army, the states will be required to capitulate or loose funding.

I am just pessimisurating out loud and hoping against hope we can find enough remaining sanity to fend this monstrosity off. But with the crowd in charge lately, I am beginning to expect the worst case scenario in every respect. They sure didn’t pass this Health ‘Care’ bill because they care about us, our health, Doctors or State’s rights. This is all about who get’s the premium$. Fedzilla NEED$ those health care premiums that you and I pay to go into the general fund, and not to private insurance. Then, in their so-called minds, they need only to control costs, and wham! Hungry Fedzilla get’s it’s revenue stream, and damn few get anything resembling “Health Care”.

I read that, on average, any single health insurance provider denies 3 point something or less of submitted claims. Medicare/aid, however, denies almost 7% of claims annually. Surely Fedzilla’s denied claims will not trend down anywhere toward the current industry average.

Thanks clee1. I SO love your tag!

FUBO.

[CottShop]

I keep hearing how ‘brilliant Robert’s is” in making his decision because suppsoedly, he slammed the door shut on the left in terms of using obamacare on the baqsis of the ‘commerce clause’ and that Roberts ‘forced’ the ocoma administration to ‘admit obummercare is a tax’ but the REALITY is that Roberts opened a gaping hole for the left to drive straight through unimpeeded in the future- Sure, The right can ‘repeal obummercare’ however, when the left regains the office and senate, they will simply just reinstate obummercare because Roberts gave them free reign to simply reinstate an UNCONSTITUTIONAL VIOLATION TO OUR FREEDOMS!!!

There was NOTHING ‘Brilliant’ About this assault on our constitutional rights- NOTHING! Roberts was nominated to make judgements and uphold the rule of law, and he refused to do so and isntead LEGISLATED from the BENCH- compeltely ignorign the FACT that forcing someoen to pay a penalty for NOT buying something is a compelte VIOLATION to our constitutional rights!!!

Never before in our history has our government forced it’s citizens to purchase a product or service simpyl becasue we are alive- NEVER!- Justice (and I use that term in this case VERY loosly)Roberts legislated fro mthe bench allowing our government to FORCE citizens to purchase somethign OR pay a penalty-

Takign this to the extreme to prove the poin t- There is supposed to be NOTHING that we absolutely have to do- We don’t even have to pay taxes IF we choose not to- We could kill ourselves in order to deny the government their ‘collection powers’, or we could comkpletely go off the grid- leave our homes, live off the land, and never simply keep on the move and never pay taxes again- We DO have thsi CHOICE if we so choose-

Now, admitedly, this is the extreme- but the point is that IF we so CHOOSE to pay taxes, then WE have made that choice- NOT the government- Now however, We no longer have the choice- EVEN IF we choose to go off grid and live in the wild- We will be concidered ‘fugitives from justice’ because we refuse to purchase obummercare because ‘by law’ the government will now be obligated to pursue said ‘offgrid’ individual for ‘non-payment’ of obummercare

And we now have ‘justice’ roberts to ‘thank’ for giving our goverment the very powers that socialist governments have, and the very powers that england had- the very government that we ESCAPED FROM way back when when they became too pwoerful and invasive and intrusive into our private lives- Now, we’re right back where we started- Heck- we’re even seeing states determining whether or not a business can conduct their business i nthe state according to their religious beleifs- IF the business doesn’t subscribbe to the state’s ‘religion’ of homosexuality- then by golly, that business can notr practice i n the state now apparently-

Obummercare ALSO violates the seperation of church and state inthat it will now FORCE emplyers, and organizatiosn to provide abortions and birth control etc via government sanctioned healthcare- Before roberts opened that door- employers were free to choose their own healthcare- and could choose healthcare that refused to cover such abominations- now however, they will no longer have that choice, and will infact have to pay into government mandadted HC which supports such assaults o nthe innocent-

No- Roberts decision was NOT Brilliant- it was judicial malpractice because roberts REFUSED to fully and objectively uphold our constitution, and he gave our governmetn unfettered ability to trample on our constitutional rights