“Congress can’t do whatever it wants,” he said. “Under this ruling, Congress can’t put you in jail for violating a future economic mandate. This holding stands for that proposition. Congress also can’t coerce states by withholding all existing Medicaid funding unless they agree to new coverage. That’s a constraint the Court has never enforced before. And the Necessary and Proper Clause cannot be used to salvage these laws. And that’s a ruling we haven’t had before.”
IMO, the biggest problem with his argument is that if Roberts could use “flimsy reasoning” to turn the biggest Supreme Court case of decades on its head, why won’t he in particular for decades to come, or somebody else in general, be able to do the same thing on any case.
Horsehockey. What we have seen is that certain justices will vote in whatever manner they deem fit to push their own agenda, precedent be damned, with the classic example being the inherent contradictions, just a few months apart, between Raich and Gonzales, as noted by Clarence Thomas in his dissent in Gonzales.
http://www.halfsigma.com/2006/01/clarence_thomas.html
Clarence Thomas, most brilliant Justice
Thomas has been on a tear lately, making himself stand out as the true thinker on the Court and relegating Scalia to the role of ideaological hack.
A few months ago, the Supreme Court decided Gonzales v. Raich in which the majority held (with Scalia being part of the majority) that the Controlled Substances Act (CSA) gave a regulatory agency the power to overrule a state’s decriminalizaton of marijuana for medical purposes.
Thomas dissented based on ennumerated powers issues. He said that growing marijuana for personal use was an intrastate issue and outside the reach of the interstate commerce clause.
Today, Thomas dissents in Gonzales v. Oregon in which the Supreme Court ruled that the CSA does not grant the authority to prohibit doctors from prescribing medicine for suicide purposes if state law permits it.
Has Thomas somehow flip-flopped on the issues? Not at all! If you read Thomas’ dissent, it’s clear that he’s dissenting in order to call out the hypocrisy of the majority who interpret the CSA based on their idealogical whim and not on sound legal principles. Basically he’s saying to the majority, “hey you morons, you decided in Raich that that the CSA gives the government power to do whatever it wants with regards to regulating drugs, you’re a bunch of hypocrites to suddenly change your mind here. I’m just agreeing with your first dumb decision because of stare decisis.”
The takeaway? Stare decisis doesn’t matter for jack with this court.
We only have two or three decades-worth of brilliant decisions from this Chief Justice ahead of us.
*bump*
...otherwise there is no reason.
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.
Maybe we can get John to peruse all our laws, and rewrite the ones he thinks he can improve. We can call him Chief Editor and Legislator. We don’t need a Supreme Court, now that we have John cleaning things up.
Yes "far less dangerous" in that there are only 5 rounds in the cylinder instead of 6.....But let's not forget that instead of .22LR rounds, they are now 44 Magnums...
On his first day in office, Romney just has to announce that he’ll waiver any person or affected entity that requests it.
On his first day in office, Romney just has to announce that he’ll waiver any person or affected entity that requests it.
This was no victory. Instead of “Government can regulate anything it wants to under the commerce clause” we have “Government can regulate anything it wants to under its taxing authority”.
The bill did not originate in the house (as bills that tax and spend are supposed to). No one called it a tax when they wrote it; rather the authors explicitly explained why it was not a tax. Obama continues to deny that it is a tax, and the solicitor general argued before the Supreme Court that it was a “penalty, not a tax”. And can you even have a penalty without a crime?
He could do this for at least 4 years and by then maybe congress can have some sort of repeal of it.
What legal challenges are left?
1. A central portion of this “law” is a tax, and the PPACA tax law originated in the Senate, in violation of the Constitution. Article 1, Section 7: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” The appropriate remedy is to overturn the entire ObamaCare bill and for Congress, if they choose, to re-pass after originating a new bill in the House.
2. By significantly rewriting the legislation to interpret this law as Constitutional, and doing so in a manner that congressional supporters who actually crafted and voted for the bill are disputing, the Supreme Court violated Article 1, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The appropriate remedy is to overturn the entire ObamaCare bill and allow the Congress to do the rewrites that Roberts claimed would make this constitutional.
3. By laying a tax that is not an income tax (the ONLY federal tax not apportioned according to population that is permitted by Amendment 16), one that is not apportioned among the states in proportion to population, Congress has violated Article 1, Section 2: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers . . .” The appropriate remedy is to find the mandate unconstitutional and overturn the entire ObamaCare bill.
4. The passage that, “(A) RELIGIOUS CONSCIENCE EXEMPTION- Such term shall not include any individual for any month if such individual has in effect an exemption under section 1311(d)(4)(H) of the Patient Protection and Affordable Care Act which certifies that such individual is a member of a recognized religious sect or division thereof described in section 1402(g)(1) and an adherent of established tenets or teachings of such sect or division as described in such section.” exempts some religions and not others from this tax. Religious exemptions from taxes are a particularly egregious violation of the first clause of the First Amendment: “Congress shall make no law respecting an establishment of religion.” This also violates the Fourteenth Amendment: “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The appropriate remedy is to exempt all Americans from the tax associated with the individual mandate and thus overturn the entire ObamaCare bill.
5. The “tax” associated with ObamaCare is described in the law and by the legislators who signed it, even after the Court’s rulings, as a penalty or a fine. The amount of this fine is up to $2250 per family per year, an excessive fine for inaction, in violation of the Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The appropriate remedy is to exempt all Americans from the excessive fine associated with the individual mandate and thus overturn the entire ObamaCare bill.
Any comments, criticism, other ideas?
Claim it and let them discriminate.
I would like to see all the opinions from this SCOTUS in order to compare the reasoning of all the Justices....Justice Roberts does seem a tad addled...does his ‘reasoning’ make complete sense? I could find nothing on their web page....
Nothing is easily fixed in a world where the truth and the meaning of words have become plastic. In such a world thre is no law, only Elites and their subjects.
“Georgetown Law professor”
My brain immediately translates that into “raving jackass”.
Yet the media claims that since Roberts sided with the liberals he therefore must not be an "activist judge". The job of a judge is not to "rewrite" laws.
But the administration’s own attorneys stated that it is a tax during the oral arguments. Looks like Roberts simply took them at their word!
And now when Obama and his minions say it is NOT a tax, we can loudly call them liars WITHOUT the risk of the “racist” comeback sticking.