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Thursday, June 28, 2012

A few thoughts on today's Obamacare decision 

For those of you who have time for a deep dive, here's the link to the Supreme Court's opinions regarding the Affordable Care Act, which was upheld today in a decision that saw Chief Justice Roberts "switch" to the liberal wing to sustain the individual mandate as a tax. I have not read the opinions, but that does not mean that I do not have opinions.

The short version is that there were not five votes to sustain the ACA's "individual mandate" under the Commerce Power, but -- thanks to the Chief Justice -- there were five votes to conclude that the penalties for violating the mandate are a "tax" under the Taxing Power.

Naturally, I have a few quick opinions.

  • In bailing President Obama out on the law itself, the Court has effectively declared that in pushing through the ACA Obama broke his pledge not to raise taxes on the middle class. Not to mention that our "constitutional law professor" of a president was profoundly wrong, or profoundly disingenuous, in his own constitutional interpretation. The GOP is already making the point.
  • The "mandate tax" will fall disproportionately on young people who do not usually need health care insurance. Once again, we are throwing people born after 1980 under the bus in favor of people born before 1965. I wonder how long the young folks will put up with that?
  • At the end of the year, and probably in to next year, we will face a huge fight over the "Taxmageddon fiscal cliff" that is already docketed for January 1, 2013, thanks to the expiration of the "Bush tax cuts," the new taxes under the ACA, and the mandated spending cuts from last year's debt ceiling deal. There is going to be a massive fight in the lame duck session, and if Mitt Romney wins it will probably continue well after inauguration day. Will the GOP throw the "mandate tax" on the table during the lame-duck session, just to drive the Democrats insane? You betcha.
  • Still, expectations after the oral argument were such that today's decision is nothing more than a huge victory for Barack Obama, both politically and historically. It will help his campaign's credibility, and raise the spirits of his own supporters.
  • That's it for now. Release the hounds.


    22 Comments:

    By Anonymous Kirk Petersen, at Thu Jun 28, 11:31:00 AM:

    Well put. I wanted and expected the decision to go the other way, but I'm taking some consolation from the fact that it wasn't a strict party-line vote.  

    By Blogger Unknown, at Thu Jun 28, 12:06:00 PM:

    I just read the syllabus (the first 6 pages linked) and the opinion of the chief justice and now on to the dissenters. Worth a read for a good view of federalism and the powers of government.  

    By Anonymous Chris Chambers, at Thu Jun 28, 01:33:00 PM:

    Let's provide some context here:
    Mitt and Heritage Foundation loved the mandates, etc years ago, so why not leave it alone now? Not too mention, the public health and CMMS waivers, experiments with pools, are all stuff GOP governors, despite what they say on Hannity, have been tapping into for the past year.
    Next, voters in their 20s like the parents' health aspect...and this might surprise you--they aren't the selfish tools we are. As for the the pre existing condition regulation, everyone, except you, seems to like that.
    I've always maintained that Obama's Spockishness and technocrat is sheep's clothing attribute was manifest in ACA. I have opined publicly and argued privately that this stuff should have been a second term item, and that a WPA device should have been dusted off from the FDR days was the priority. Just because this thing survives the Roberts Court is not cause for him to give the agents the night off, send Sasha and Malia to grandma Robinson's so he can get busy with Michelle in celebration. There's still the trogs in Congress to deal with, and bugs galore in this thing. But the idea of a nation like the US having this medieval health system is something even Willard Mitt Romney realized a long time ago. I guess banks, big Oil, big ins, the Kochs, Adelson et al better break out the checkbooks--again. Big pharma is noticeably silent, and I remain surprised that devices and biotech has a similarly measured response, despite your personal opposition. Still, i think someone whispered to Roberts that you can't talk one way about judicial activism at wingnut rubber chicken dinners, then act another. Posner pulled back that curtain 12 years ago in analyzing Bush v Gore, and only rank ideologues like Scalia, Alito and poor, poor Clarence don't seem to care about that distinction. And speaking of Clarence, it didnt look good that Ginny was leading the charge against Obama and ACA. No sex for brothaman tonight, I guess?

    Look at the bright side--at least you can lock up children without parole, and Citizens United has been foisted upon the states--and Montana, a loyal Red State at that! (a big oops for Federalism, I guess).
    So let's stop the analysis of the trees and get back to the forest. All this is about is power, and a nation which people like you think you "lost"--just because you dont have utter hegemony on every aspect of culture and/or commerce. That's plain nuts. And maybe something decent in Roberts sounded that alarm. That's Sandra Day O'Connor's thesis. Then again, it was likely a tree in the forest...or if I remain cynical, he did it to take a bullet so the rest of the troops can rally.  

    By Blogger darovas, at Thu Jun 28, 04:12:00 PM:

    Donald Verrilli must be having a really good day.  

    By Anonymous sirius, at Thu Jun 28, 05:48:00 PM:

    The power to tax is the power to destroy.

    As of today there is no limit on that power, in either case.  

    By Anonymous Ignoramus, at Thu Jun 28, 07:00:00 PM:

    The dissent is what I had expected with Roberts joining in to make a majority. Many thought it was going that way until Roberts made a late flip.

    So why did Roberts flip? Has he profoundly assessed all the permutations to conclude that this is best left a political issue, or does he have no balls?

    Can Romney run on this, given his RomneyCare baggage? Can he get the Tea Party to come out again like they did in 2010?

    Can Romney run from now until November on just “repeal and replace”? Will he be forced to get specific?

    Agreed, Romney needs to get the young to realize that Obama has just taken all their beer money so that someone else’s grandma can get a hip replacement.  

    By Anonymous Anonymous, at Thu Jun 28, 08:03:00 PM:

    UN PRESIDENT TIM KALEMKARIAN, US PRESIDENT TIM KALEMKARIAN, US SENATE TIM KALEMKARIAN, US HOUSE TIM KALEMKARIAN: BEST MAJOR CANDIDATE.  

    By Anonymous Anonymous, at Thu Jun 28, 10:20:00 PM:

    I wonder if Romney would be the presumptive nominee for the Republican Party if this decision was published six months ago.  

    By Anonymous Anonymous, at Fri Jun 29, 03:51:00 AM:

    Anon Attorney is buried at work and has not had time to review the opinion. It strikes me that Roberts must have flipped after the opinions were written because the commerce clause analysis was utterly unnecessary and should not have been included given that the law was upheld as a tax. There was no reason whatsoever to address the commerce clause to decide the case. Roberts has destroyed his reputation as a conservative jurist. He will never recover from this.

    The young are far too stupid to make the logical connections you suggest. Besides, given the unemployment and underemployment of America's youth any such burden will fall on a very small segment of said youth who are gainfully employed.

    Major, major victory for Obama and the Democrats, and similarly major defeat for individual liberty in America. Time to dispel any remaining notions that the federal government must comply with constitutional limitations on power. We are subjects, not citizens--owned lock, stock, and barrel. Doubleunplusgood.

    Romney loses big in November, and this decision is another reason not to care. Moderate Republican Presidents appoint moderate justices like Roberts. If the constitution is to be subverted, let it be by Democratic judges.

    Our government's financing needs will explode in the next 50 years. This decision will be the cornerstone which provides Congress the authority to force citizens to buy Treasuries, probably as part of their 401k accounts. Sub-silento confiscation.  

    By Anonymous Anonymous, at Fri Jun 29, 08:59:00 AM:

    Government finances explode in 50 years?

    It won't be nearly that long. Most of us will die poor and destitute. Your Ivy League education will not help you.

    And yes, the Republic is dead.

    Chambers and his friends are capering about the bonfire. I hope you are happy about what you have sown and reaped.  

    By Blogger W.LindsayWheeler, at Fri Jun 29, 10:21:00 AM:

    This country ended when Andrew Jackson gave the suffrage to all adult men.

    This country ended when the 14th Amendment was made.

    This country ended in 1880 when there were over 200 communist and socialist organizations in this country.

    This country certainly ended in 1913 when women's suffrage was passed, the income tax was passed, the Federal Reserve came into being, and the US Senate was changed from State houses appointing Senators to the people electing them, and the intro of the League of Nations. All of these actions were due to the 200 communist and socialist organizations that advocated such.

    This country ended with the Great Deal of FDR.

    This country ended 50s with the end of segregation and Eisenhower integrating the military. This country ended when the Bible was pulled from general curriculum in the 60s.

    This country ended when the Frankfurt School was allowed in which fomented the Cultural revolution of the Hippies.

    Black Thursday is not so much black as just another nail in the coffin. Anon of Friday 3:51 is right, Obama will win in November. I'm certaintly not voting.

    Black Thursday? The day before was when SCOTUS struck down Arizona immigration law and then the Obama admin will refuse Arizona help in detaining illegal Mexicans. Obama, as Chief Executive Officer, will only enforce laws he likes.

    Where is the Rule of Law in this country?

    And in the Birth Certificate issue. The man's father is Kenyan. Obama is NOT natural born. He is in eligible and what is the response of the Republican Party? Nothing!

    To hell with this country, to hell with this people, to hell with it all!

    "Going to hell in amerika, going to hell in amerika". (Sung to that tune "Going to live in America".)

    It's over. It's done. It's finished.  

    By Blogger MTF, at Fri Jun 29, 10:45:00 AM:

    Will it "raise his supporters spirits"? How so?

    My own view is that before the ruling came down his supporters were almost completely dispirited, weighed down as they were by weeks of bad politicking from the campaign, gaffes, and the sense of impending disaster from the court. The ruling was a sort of execution sword poised over the campaign.

    Now that the expected didn't happen, I'd say there is certainly a huge sense of relief among the President's supporters, but I wouldn't say any evidence exists that their spirits have been noticeably raised at all. Fundraising, most obviously, is way down and far less than Romney is raising. In presidential election years, especially after losing midterms, history tells Charlie Cook to normally expect a swing back to the President. Not this year, Democrat House candidates are seeing no push at all.

    Where are Democrat spirits higher?

    This election was always going to be the solution to ObamaCare's overreaches. Even had the Court thrown away the mandate completely, the stump of the law was likely to remain and require a new legislative fight.

    The law remains unpopular among nearly 70% of the population, many of whom hat not just the law itself but also the legislative process by which it was passed. Those feelings of dislike extend to the Democrat Party writ large, and will affect the election chances of Democrats for a very long time. Voters know they simply cannot be trusted.

    As we go into the election, the President has these achievements: Huge new taxes, endless recession, joblessness, corrupt crony capitalism, scandal in his criminal Attorney General (who will need a pardon on November 7, no matter who wins the election) and foreign policy disasters by the score. How does any of this lift the spirits of anyone, even his foolish supporters?  

    By Blogger W.LindsayWheeler, at Fri Jun 29, 12:54:00 PM:

    Here is a must read from Lawerence Auster over at View from the right:

    What Obamacare will do to America

    America is pure Socialist. We live in the USSSA, the United Soviet Socialist States of Ameria.  

    By Blogger Dawnfire82, at Sat Jun 30, 12:53:00 AM:

    I, for one, am excited at the idea of taking Congress in 2013 and taxing the fuck out of every single last liberal pet project, cause, service, and product.

    Buy a rifle or pay a tax.
    Join a gun club or pay a tax.
    Go hunting or pay a tax.
    Buy meat or pay a tax.
    Attend a sports competition or pay a tax.
    Buy shares of an energy company or pay a tax.
    Buy a copy of the Federalist Papers or pay a tax.
    Plant a tree and pay a tax.
    Buy a SmartCar and pay a tax.

    Unharnessed, unfillibusterable social engineering. Magnificent. Show the stupid, short-sighted assholes the true consequences of unbridled government power, humble their twisted philosophy, and raise revenue all at the same time.

    *sigh*

    "How does any of this lift the spirits of anyone, even his foolish supporters?"

    Look around online. They have deluded themselves into thinking that 'conservatives are on the run.' I've seen 'deer in the headlights' used as a descriptor several times. Most have done a little dance, chanting about how conservative legal theories were proven all wrong just like they always said, absolutely oblivious to the fact that the core theory of power under the Commerce Clause was defeated.

    I used to at least respect liberal intentions, despite disagreeing with their provably stupid policies. I've even converted some. But the willful, even joyous ignorance, hypocrisy, rudeness, lies, and sheer hatred that has poured from their putrid souls since 2004 has convinced me otherwise. No more. They know exactly what they do.

    Carney got up in front of the press today, representing an administration that just *successfully argued* that their precious law was really a tax; the only thing that saved it. And he told everyone present that it wasn't a tax at all and implied that it was a ridiculous Republican lie to say that it was. That did it for me. The sheer brazenness of that stupid, pathetic, transparent deceit... that's not a democratic government. That's what a tinpot dictator does. That's freaking Baghdad Bob territory.

    Fuck them. All of them. I can't wait for the coming civil war. The catharsis will be orgasmic. The looks of horrified shock on the faces of the OWS idiots, anarchists, Black Panthers, communists, and every other fucking moron who ever agitated for RevoLutIon!1!! when I pump 5.56mm rounds into their weak, twitching bodies will caress me to sleep for the rest of my life. I will die happy knowing that I delivered to them what they always craved, but that I was better armed and a better shot.  

    By Anonymous E Hines, at Sat Jun 30, 09:05:00 AM:

    Carney got up in front of the press today....

    One small nit: That was Obama who got up in front of the press. As always, everything Carney (and Axelrod, et al.) says and writes is pre-approved and vetted by Obama. Those were Obama's words; Obama was only using Carney's mouth to say them.

    Another small nit: The precedent taking the limits off the Taxing Clause is ugly. But with the precedents set in Jones & Laughlin and Wickard, the limits remaining in the Commerce Clause are a transparent fig leaf.

    Eric Hines  

    By Anonymous Anonymous, at Sat Jun 30, 03:27:00 PM:

    I guess second amendment supporter should be fricking happy at the moment...

    If Obamacare is a tax, and not a penalty, then people who do not own guns and buy bullets and refuse to take part in the readiness of our country's national defense as a militia member - now can be taxed!

    If you don't own a gun, and have an adequate supply of bullets to protect your home from invaders, both foreign and domestic, then you are a drag on our national defense, and SHOULD BE TAXED!  

    By Blogger Diogenes, at Sat Jun 30, 10:35:00 PM:

    Justice Roberts gave something to everyone in the course of trying to maintain the Court's relevance and prestige.

    Remember, the Supreme Court selected its own expert to brief the tax question. Obama also argued it was a tax.

    Unfortunately, the opinion ignored the manner in which the law was enacted and appears to reward deception. fraud and corruption in its passage.

    So, the Democrats universal health care law was allowed to stand. Requiring everyone to buy insurance is like a universal tax obligation, though insurance companies will receive the tax payments thus eliminating the government as a middleman.

    The Republicans get any opportunity to revisit the law and engage in regular process, i.e., election, committee hearings, opportunity to amend, etc.

    The Democrats prevented regular process in passing health care because like all Marxists, the ends justify the means.

    Justice Roberts must now pledge that our Supreme Court will issue opinions that carefully evaluate the means used to enact legislation and thus ensure due process.  

    By Anonymous Anonymous, at Sun Jul 01, 04:09:00 PM:

    The 'limitation' on commerce clause and necessary and proper clause will be useless, given the open ended nature of the taxing power. For those that advocate a tax on failing to adequately personally prepare for the common defense, this is not a left right issue, this is a ruler subject issue.

    There will be no law like a tax on failure to own a firearm. Per the logic of this decision, if the congress passed, and the president signed a law 'mandating' every citizen travel to DC (interstate commerce!) at least annually and lick the boots of their Representative, Senators, Vice President and President, so long as the 'penalty' could be construed as a tax, it would pass constitutional muster.

    They can't only make us buy health insurance, they can't only make us buy broccoli, they can make us lick their boots. It is not left vs right, this the political class versus the people, and the tree of liberty needs watering.  

    By Anonymous Ignoramus, at Sun Jul 01, 05:51:00 PM:

    Seriously, why can't we win this at the polls. Oh yeah, we picked Mitt.

    I wouldn't count Mitt out, but he needs to find his inner populist if he has an iota of one. Either that, or hope enough people get totally exhausted with Obama.

    Speaking of lies: ObamaCare was going to reduce the deficit, wasn't it? The CBO said so.  

    By Blogger Dr K, at Tue Jul 03, 04:48:00 PM:

    It is lamentable that the supreme court is playing politics (or chess) with the constitution. How about they just defend it for a change?  

    By Blogger Marky, at Thu Jul 05, 06:46:00 PM:

    LOL. Anyone's grandma should be ready to file for depuy hip recall lawsuit too, is that what you mean?  

    By Blogger Anne, at Thu Jul 05, 07:46:00 PM:

    Maybe, it is what he means Marky. So sad that the old ones suffer from this Hip Recall issue.  

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