Skip to comments.Mark Levin: Not-So-Fast on Commerce Clause
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 administrations 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 Chiefs 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 didnt. 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.
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 Courts 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.
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.
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.
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.
I forgot to add; May Justice Roberts soon stand before a higher judge.
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.
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.
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 ! ‘
“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.
What is to stop them!
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
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.
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)?
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.
“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
Levin doesn’t like your crazy uncle. Get over it.
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.
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.
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...
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.