Mark Levin: Not-So-Fast on Commerce Clause

http://www.nationalreview.com/ ^ | June 29 2012 | By Kathryn Jean Lopez

[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.

[trebb]

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.

[Sudetenland]

"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.

[EBH]

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

[Sudetenland]

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.

[okie01]

I understand, exactly.