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Mark Levin: Not-So-Fast on Commerce Clause
http://www.nationalreview.com/ ^ | June 29 2012 | By Kathryn Jean Lopez

Posted on 06/29/2012 5:02:56 PM PDT by Para-Ord.45

My old friend, Mark Levin, author of Men in Black: How the Supreme Court Is Destroying America e-mails about what did and what did not happen yesterday:

This may seem a little technical, but it is not a minor matter. A number of politicians and commentators are claiming that the Supreme Court in the Obamacare case “limited” the reach of the commerce clause, i.e., five justices held that individuals cannot be mandated to buy insurance under the commerce clause. Actually, the five justices did not limit anything. They simply did not accept the Obama administration’s ridiculous argument that inactivity is commerce. The status quo stands because Obamacare was upheld under the tax provisions. However, the bigger point is this — when a court issues an opinion, it is said to be the “Opinion of the Court.” The Opinion of the Court is the controlling precedent. Chief Justice Roberts wrote the Opinion of the Court for Parts I (background on the Obamacare law), II (the Anti-Injunction Act is not a bar to the lawsuit proceeding and being decided) and III-C (Obamacare is valid under the tax power).

But respecting Part III- A, the commerce clause and necessary and proper section, the decision notes that Roberts is writing for himself, not for a majority. Furthermore, the Dissent is labeled as: “Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.” It is not labeled as “dissenting in the judgment, concurring in part” or some permutation.

You cannot say it was the “opinion of the court” that the mandate violated the commerce clause. You have to cobble together sections where Roberts is writing for himself and the dissent (which did not formally join with Roberts), is writing for itself.

In fact, Justice Thomas, in his separate dissenting opinion, wrote:

“The joint dissent and THE CHIEF JUSTICE cor­rectly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.”

Notably, this does not explicitly state that the dissenters joined with the Chief’s opinion respecting the commerce clause. If five justices had intended for their view of the commerce clause to be controlling as the majority view of the court, they would have said so by joining or concurring in each others’ parts. They didn’t. There was no formal majority on the commerce clause issue. Should this matter come before a court again, it is not settled as a matter of precedent and no doubt the litigants will still be fighting over it.


TOPICS: News/Current Events
KEYWORDS: sourcetitlenoturl
IT`S A DOUBLE-WHAMMY !

According toMark Levin and others the Commerce Clause was NOT limited AND the Power to coerce through taxation WAS EXPANDED !

What if that huge conservative doctrinal achievement was mere dicta?

I have expressed my frustration with those who see some salvation in the supposed advancement of constitutional federalism in the ruling by Chief Justice Roberts and the four conservative dissenters that the Commerce and Necessary and Proper Clauses did not justify forcing people into commerce.

Those rulings arguably were not essential to the decision

The Commerce and Necessary and Proper Clause holdings may be deemed limited by some future composition of the Court to the unique facts of the Obamacare mandate, or worse, considered mere dicta, meaning opining by the Court which while informative is not binding on inferior or future Courts because not essential to the ruling.

Ilya Somin makes this point as well:

One possible reason to dismiss the importance of the Court’s treatment of these issues is that it might have been mere dictum. After all, the Court upheld the mandate based on the Tax Clause, so the other two issues were not essential to the outcome.

http://legalinsurrection.com/2012/06/what-if-that-huge-conservative-doctrinal-achievement-was-mere-dicta/

1 posted on 06/29/2012 5:02:59 PM PDT by Para-Ord.45
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To: Para-Ord.45

there is no silver lining. just imagine if the Court had struck Obamacare down altogetger with Breyer as the 5th vote. Think any democrat or liberal would be talking about silver linings or telling everyone how Breyer is really some genius playing chess when everyone else is playing checkers? Of course not.

The ruling was a huge blow. A huge disappointment by Roberts, who is now right there with Souter and all the other conservative SC disappointments. There’s no positive to take from this. None.


2 posted on 06/29/2012 5:11:42 PM PDT by jeltz25
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To: Para-Ord.45
But respecting Part III- A, the commerce clause and necessary and proper section, the decision notes that Roberts is writing for himself, not for a majority.

Correct me if I'm wrong but wasn't the idea that the mandate was a tax also written "for himself"? The four liberals wanted to allow OC under the Commerce Clause and were only in the "majority" because it upheld the ruling, not because they concurred about the tax issue (hence Justice Ginsberg's "dissent".)

The entire opinion was a one man show.

3 posted on 06/29/2012 5:25:17 PM PDT by Mygirlsmom (Scott Walker, Paul Ryan, Ron Johnson, Reince Preibus. The Cheesehead Revolution to save America.)
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To: Para-Ord.45

That court has already ruled that someone can’t grow pot in their own apartment for their own use if the Feds say so under the authority of the interstate commerce clause. There is already no limit to how far the clause can be stretched.


4 posted on 06/29/2012 5:30:31 PM PDT by freedomfiter2 (Brutal acts of commission and yawning acts of omission both strengthen the hand of the devil.)
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To: Para-Ord.45

I forgot to add; May Justice Roberts soon stand before a higher judge.


5 posted on 06/29/2012 5:32:07 PM PDT by freedomfiter2 (Brutal acts of commission and yawning acts of omission both strengthen the hand of the devil.)
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To: Para-Ord.45
According toMark Levin and others the Commerce Clause was NOT limited AND the Power to coerce through taxation WAS EXPANDED !

Worse than that, the Chief Justice has succumbed to the dark side by redefining the meaning of words to get the rationale for his ruling. THAT is the darkest and most extreme power of the modern Supreme Court.

6 posted on 06/29/2012 5:35:57 PM PDT by dirtboy
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To: Para-Ord.45

Talk about insult to injury, eh? I read a tiny blog post somewhere yesterday suggesting this was the case but dismissed it- hoping for the pony in this steaming pile somewhere. But this afternoon a bright retired lawyer called in to Rush and explained in a bit more detail that in fact- NOTHING in Roberts discussion of the commerce clause is binding or changes one damn thing. He convinced me.


7 posted on 06/29/2012 5:43:23 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: dirtboy

Greg Gutfeld said something like,

’ It`s as if Roberts was your professor and asked for a term paper on a subject and gave you an F . He then writes the term paper over, for you , on a completely different subject and gives you an A for it ! ‘


8 posted on 06/29/2012 5:45:50 PM PDT by Para-Ord.45
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To: Para-Ord.45

“I have expressed my frustration with those who see some salvation in the supposed advancement of constitutional federalism in the ruling by Chief Justice Roberts and the four conservative dissenters that the Commerce and Necessary and Proper Clauses did not justify forcing people into commerce.”

There’s been quite a few articles out there from folks covering Robert’s ass. There’s nothing ‘conservative’ about this ruling. Obama got everything that he wanted. Robert’s incoherent opinion delivered that opinion to him.

We needed the courts to do their job to act as a check on the legislature. Thanks to Roberts that didn’t happen. He can talk all he wants about penumbra and emenations. At the end of the day, he upheld Obamacare.


9 posted on 06/29/2012 5:46:24 PM PDT by JCBreckenridge (Texas, Texas, Whisky)
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To: dirtboy
The pResident is soon to create this new Insurance rule. All people must purchase a life insurance policy. All life insurance policies must henceforth supply at least 200 thousand dollars in event that the insured dies. All policies must also include at least the minimum as follows: $20,000 per finger, $80,000 per hand, $100,000 per arm or leg. The following clause must be added to each policy. 73% of all payout will be sent directly to The Obama Administration immediately before any other payouts are made.

What is to stop them!

10 posted on 06/29/2012 5:48:24 PM PDT by cotton
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To: All

This was a huge blow to _law_. It is proper law, which is being shredded. Has been over some score years, small laws and ruling, all clearly contrary to USConstitution. DC does not care about actual law, nor the facts of the law, it cares about what man wants.

The very thing the Health Bill could _not_ be a direct Federal Tax, is what the final opinion said it was and it could legally be.

“The trouble with the world is not that people know too little, but that they know so many things that aren’t true.”
— attributed to Mark Twain

For all intents, time is running backwards, back from everything man learned and instituted, back to before the Magna Charter, back to ages dark.

“The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.”
— Thomas Jefferson

USA has surely gone a _long_ way down the wrong road.

“I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people’ (10th Amendment). To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible to any definition.”
— Thomas Jefferson

Some say politics is our remaining course, but it is politics, in bed w/ banks, corporations and foreign interests which brought we the dhimmitude to this level of _care_. It is we the individual people who recognize,

“It is not only his right, but his duty to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
— John Adams


11 posted on 06/29/2012 5:50:58 PM PDT by veracious
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To: cotton
The pResident is soon to create this new Insurance rule. All people must purchase a life insurance policy.

The congress passed Obamacare
12 posted on 06/29/2012 6:05:35 PM PDT by uncbob
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To: cotton

Mark Levin lobbies against the Constitution while claiming to be it’s chief defender. In his view Ron Paul is more dangerous to this country than John Roberts. Who knew? The veil is lifted! Mark Levin has issues.


13 posted on 06/29/2012 6:19:38 PM PDT by SteelTrap
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To: uncbob
The congress passed Obamacare

And a stupid people, idiots living in 1913, made this stinker of a law constitutional today by passing the 16th amendment.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Those morons gave gave congress a blank check. Why? Because the country was full of farmers that didn't give two farks about city folk that used paper money to survive. It wasn't their problem.

But who today can live without an income (besides Democrats)?

14 posted on 06/29/2012 6:23:00 PM PDT by conservative sympathizer
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To: conservative sympathizer

I don’t think that is it. The 16th Am allowed USG to legally, directly tax corporations. This was all part of the Corporate Income Tax of 1909. The meaning of income was as it meant there. The pretense of individual citizen taxes came into being as part of the War Powers Act, during WWII. As such, this act and the USC allows special taxes and other laws, during was, for a period of two years. Since it wasn’t reinstated it legally ended after then.

I repeat:
“The trouble with the world is not that people know too little, but that they know so many things that arent true.”
— attributed to Mark Twain


15 posted on 06/29/2012 6:28:18 PM PDT by veracious
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To: SteelTrap

Levin doesn’t like your crazy uncle. Get over it.


16 posted on 06/29/2012 6:33:56 PM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: SteelTrap
Paul IS more dangerous to this nation than Roberts. He's a congenital idiot who seem incapable of comprehending the simple concept that ignoring a problem won't make it go away. His concept of a "rational foreign policy" is to invite disaster by withdrawing to within our borders and pretending that the rest of the world will just leave us alone.

It's a great concept for a 5 year-old, but it's dangerously naive for a nation.
17 posted on 06/29/2012 6:43:50 PM PDT by Sudetenland (Member of the BBB Club - Bye-Bye-Barry!!! President Barack "Down Low" Obama)
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To: Sudetenland

I appreciate your honesty. We agree to disagree. May your chains rest lightly upon your shoulders. i promise to not come to your defense if if ever comes to that. You win.


18 posted on 06/29/2012 6:54:21 PM PDT by SteelTrap
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To: dirtboy

Roberts’ opinion reminds me of Plessy v. Ferguson where the Constitution was twisted to accomidate the political desires expressed in the legislation. Clearly it should have been decided to be an overreach of the commerce clause but, in spite of Roberts’ assertion in his opinion, the commerce question was never addressed by a majority so the case has no precedent value as a limitation of the commerce clause. Further, it does expand federal taxing ability or at least reinforces it.

The Obamacare decision is a complete disaster. One death among the conservative trio or the moderate (Kennedy) and the court will have no affection for the Constitution at all. It will be another “Plessy Court” whose self defined job is to pervert the document to fit the prejudice of the time.


19 posted on 06/29/2012 6:57:37 PM PDT by JimSEA
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To: Sudetenland
Paul IS more dangerous to this nation than Roberts. He's a congenital idiot who seem incapable of comprehending the simple concept that ignoring a problem won't make it go away.

On the other hand, one could claim that Roberts is now the more dangerous of the two. Because he actually has some authority, whereas Paul will never again have any.

Granted, the country would be better off without either...

20 posted on 06/29/2012 7:06:30 PM PDT by okie01 (+64)
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To: Mygirlsmom
Correct me if I'm wrong but wasn't the idea that the mandate was a tax also written "for himself"? The four liberals wanted to allow OC under the Commerce Clause and were only in the "majority" because it upheld the ruling, not because they concurred about the tax issue (hence Justice Ginsberg's "dissent".) The entire opinion was a one man show.

Correct - what Roberts did is tantamount to a Judge switching the murder weapon for a fake one and allowing a perp to go free.

21 posted on 06/30/2012 3:47:14 AM PDT by trebb ("If a man will not work, he should not eat" From 2 Thes 3)
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To: okie01
"On the other hand, one could claim that Roberts is now the more dangerous of the two. Because he actually has some authority, whereas Paul will never again have any."

True enough. Of course, you realize the intent was more to smack down Paul than to uplift John "Souter II" Roberts.
22 posted on 06/30/2012 5:26:26 AM PDT by Sudetenland (Member of the BBB Club - Bye-Bye-Barry!!! President Barack "Down Low" Obama)
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To: conservative sympathizer

This guy? http://youtu.be/IzxRDsBtXrM


23 posted on 06/30/2012 5:34:39 AM PDT by EBH (Obama took away your American Dreams and replaced them with "Dreams from My (his) Father".)
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To: Para-Ord.45
John Roberts in one fell swoop has eviscerated GWB's single greatest claim to success. Instead of having appointed two strong conservative justices, he has joined his father in leaving America with a Supreme Court legacy of "0" . . . -1, for a liberal posing as a conservative (Roberts) and +1, for one apparently true conservative (Alito).

Conservatives once more find themselves sandbagged by a weak Justice who allowed himself to be portrayed and understood as more conservative than he is, and who is more concerned about his and the Court's legacy than about doing his assigned duties. First it was GWHB with Souter and now we find out GWB has duplicated his father's mistake.

The innate dishonesty of liberals makes it very difficult to guarantee that the conservative justice you appoint will remain so. It's interesting that liberals NEVER have that problem. There hasn't been a "liberal" justice appointed to the court who has switched sides the way conservative appointees have.

It's very frustrating.
24 posted on 06/30/2012 5:37:56 AM PDT by Sudetenland (Member of the BBB Club - Bye-Bye-Barry!!! President Barack "Down Low" Obama)
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To: Sudetenland

I understand, exactly.


25 posted on 06/30/2012 9:12:23 AM PDT by okie01 (+64)
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