ObamaCare: Was the conservative dissent on the mandate originally a majority opinion?

posted at 4:01 pm on June 28, 2012 by Allahpundit

There’s a fair reason to think so and a not-so-fair reason. First, the not-so-fair:

Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it?

Scroll down to page 138 of the justices’ opinions to see Ginsburg’s opinion described as a “dissent.” Minor problem with this theory: Her opinion was a dissent. She and the liberals lost on the Commerce Clause argument over the mandate, which is what the conservatives’ joint opinion was addressing when it referred to her view as dissenting. The terminology’s not inaccurate, just a little odd given that it was the conservative side that ultimately ate a big ol’ shinolaburger today.

Ed Whelan’s reason for thinking the conservative opinion was originally a majority opinion is more convincing:

The joint dissent issued by Justices Scalia, Kennedy, Thomas, and Alito certainly reads as though it were written to be the majority opinion. Among other things, the joint dissent’s discussion of the taxing power doesn’t respond to the Chief Justice’s opinion (indeed, I think it never even cites it). Rather, it addresses only the government’s argument. By contrast, the Chief’s opinion repeatedly takes issue with the joint dissent. This strongly suggests to me that the joint dissent was written first, as the proposed majority opinion, but failed to garner the fifth vote from the Chief…

One serious problem with the above theory is that it’s difficult to reconcile with the fact that the Chief would have assigned the majority opinion in the first place. An alternative theory is that the joint dissenters wrote their opinion as they did, after the Chief circulated his draft, in order to signal their deep dissatisfaction with his draft. I now lean towards this alternative theory.

I might have missed something but a quick skim through the conservative opinion has me thinking Whelan’s right: While they do address Ginsburg by name and answer her arguments directly, at no point do they address Roberts — even in the crucial section on the taxing power that ultimately upheld the mandate. (The opinion starts on page 127 in case you want to check our work.) Instead, their arguments are addressed to “the Government,” i.e. the DOJ and the Solicitor General. It strikes me as deeply odd that they wouldn’t tackle the chief head on when discussing the linchpin of the case given that it’s the main point of contention between him and them. And something else is strange too: The conservative opinion goes on to argue in methodical detail why the rest of the law shouldn’t be severable from the mandate. Quote:

The opinion now explains in Part V–C–1, infra, why the Act’s major provisions are not severable from the Mandate and Medicaid Expansion. It proceeds from the insurance regulations and taxes (C–1–a), to the reductions in reimbursements to hospitals and other Medicare reductions(C–1–b), the exchanges and their federal subsidies (C–1–c),and the employer responsibility assessment (C–1–d). Part V–C–2, infra, explains why the Act’s minor provisions also are not severable.

Major provisions of the Affordable Care Act—i.e., the insurance regulations and taxes, the reductions in federal reimbursements to hospitals and other Medicare spending reductions, the exchanges and their federal subsidies, and the employer responsibility assessment—cannot remain once the Individual Mandate and Medicaid Expansion are invalid.

Why would they bother with an intricate analysis of which provisions were severable from the mandate if this opinion was written in the knowledge that the mandate was ultimately being upheld? You only need step-by-step instructions on severability if you’re in the majority and obliged to provide lower courts with guidance on which parts of the statute are still operative and which aren’t. If you’re writing in dissent, that’s a waste of time. Which makes me think … maybe when this was written the author wasn’t in dissent.

So what happened here? Could be that this was written by the four conservative justices as a bizarro-world majority opinion as a sort of middle finger to Roberts on how things should have gone. But in that case, why didn’t they add language attacking his opinion on Congress’s taxing power specifically? It makes more sense to think this was the majority opinion at some point — perhaps written by Roberts himself (since he likely assigned the opinion to himself from the beginning) and then discarded after he switched his vote. The other conservatives then salvaged his opinion, polished it up a bit, and republished it as their own, possibly as a tacit rebuke to Roberts or possibly because Roberts switched so late in the game that there wasn’t time to draft something new from scratch. Or, as yet another alternative, maybe Roberts was on the fence all along, which spurred the conservative bloc and the liberal bloc to each write their own “majority” opinions in hopes of persuading him to join them as the fifth vote. When the conservative bloc ended up being disappointed, they left their opinion more or less as is, whether due to time constraints or pique or both.

Any other theories? I don’t buy the idea that Roberts flipped at the last minute because of all the liberal hacks screeching at him on MSNBC and in the New Republic. That was always a fait accompli. If he was going to vote to uphold for that reason, he would have been a solid yes from day one and the conservative opinion here would have looked very different. Exit quotation from Romney’s website: “As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.”


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A few thoughts, both my own and stolen shamelessly from smart posters at ace of spades:

1- the commerce clause as a regulatory toy was smacked down. Libs on the court recognize this
2- congress had the power to tax anything already. now we can vote them out, instead of an unelected HHS secretary (at least in future laws)
3- nothing changes today. Obama care has been law since 2010. It feels that way but the same stupid law is the same today as yesterday
4- Obama CANNOT run against the court
5- conservatives will make it very clear to Romney (rich ones at least) if we have 51 GOP senators you MUST nominate a hard conservative for the court. no compromises.
6- I’m mad at Roberts, but he fired up the base in a way Romney never would have
7- the three issues of this campaign: debt, jobs, obamacare- they are all favoring Romney. Forget social issues!
8- Obama care is still wildly unpopular. In swing states especially
9- by making it a tax, now the GOP can run ads calling Obama the biggest taxer ever
10- from now till November anything bad related to health care can be blamed on obamacare. Had it been overturned all would be blamed on that evil court decision

Obviously a full repeal would have been awesome but considering our “loss” still SOME silver linings!!!

pamplonajack on June 28, 2012 at 4:03 PM

Curiouser and curiouser

txmomof6 on June 28, 2012 at 4:04 PM

I don’t really care so much what motivates a traitor to become a traitor.

EddieC on June 28, 2012 at 4:05 PM

Money, money, money, money… Mon-ey!

…Just kidding. That’s not fair, and we’d never be able to prove that anyway.

KingGold on June 28, 2012 at 4:06 PM

I thought they voted quite soon after the hearings were finished. If that is so, how would there have been time to write the conservative opinion as majority and then change it to dissent if Roberts switched his vote?

INC on June 28, 2012 at 4:06 PM

What of the waivers? If the mandate is really and legally a tax, then HHS can’t say some companies must be taxed while others (Mcdonalds) are exempt. Tax exemptions must be written in legislation. All the waivers happened after the bill was passed, and was only at the discretion of the Sec. of H.H.S. She can’t do that. Roberts has really turned this into chaos.

Weight of Glory on June 28, 2012 at 4:07 PM

So Roberts switched so he could author an opinion?

More has been sold out for less…

cajun carrot on June 28, 2012 at 4:07 PM

AP, I apologize for ever making fun of your Eeyoreness. In retrospect you were strutting around here like a peacock based on how this ultimately came down. So how many points are we going to lose by in Nov? 20? 30? Let’s get this Eeyore party started!

Kataklysmic on June 28, 2012 at 4:07 PM

I think Roberts was threatened somehow. I don’t think there is anything in Roberts past to explain the way he voted.

Axion on June 28, 2012 at 4:07 PM

“As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.”

FIFY, Mitt.

rcpjr on June 28, 2012 at 4:07 PM

“As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.”

And until this morning, that sounded like a good idea. If they dump the traitor from that list sometime in the near future, I’m all for a bench stacked with Scalia/Thomas/Alito clones.

Mr. Prodigy on June 28, 2012 at 4:07 PM

The Supreme Court voted 7-2 to allow STATES to opt out of Medicaid Expansion program. I think that this is a huge decision because Obamacare was going to pay for the uninsured with the Medicaid Expansion program. Now that at least 26 states do not have to do so then the unisured who live in these states have to pay for their own health insurance or pay their taxes. Most of them are democrat voters…LOL…

mnjg on June 28, 2012 at 4:08 PM

Thanks to Roberts, Congress may require us to do anything and “tax” anyone who refuses. And of course, anyone who does not pay the “tax” goes to prison.

This is Roberts’s legacy. The man is a disgrace.

EddieC on June 28, 2012 at 4:09 PM

Any other theories? I don’t buy the idea that Roberts flipped at the last minute because of all the liberal hacks screeching at him on MSNBC and in the New Republic. That was always a fait accompli. If he was going to vote to uphold for that reason, he would have been a solid yes from day one and the conservative opinion here would have looked very different.

I think you are smoking crack. Roberts sh1t his pants after letting the whole thing digest in his stomach for a little while. It wasn’t so much MSNBC or the New Republic as it was terror at such a massive repudiation of both Congress and the President with only 5-4 votes.

NotCoach on June 28, 2012 at 4:09 PM

pamplonajack on June 28, 2012 at 4:03 PM

While some may call it spin, I do believe based upon what we have seen over the past 2 yrs between legislative/candidate polling and the GOP surge, those are all reasonable conclusions you may see. I also concluded InTrade and Oral Arguments are a farce.

hillsoftx on June 28, 2012 at 4:09 PM

If the House passes repeal and the Senate votes one of two things will happen. Senators up for reelection will go on record as voting against repeal or it passes and Obama has to veto it. Win-win

txmomof6 on June 28, 2012 at 4:09 PM

I don’t buy the idea that Roberts flipped at the last minute because of all the liberal hacks screeching at him on MSNBC and in the New Republic. That was always a fait accompli. If he was going to vote to uphold for that reason, he would have been a solid yes from day one and the conservative opinion here would have looked very different.

Didn’t you argue just the other day that he might join with the libs in upholding the mandate to preserve the “prestige” of the court or whatever, or not make it look too political? What is that, if not an attempt to avoid such criticism?

Maybe he knew that the votes were there to overturn the whole thing and was uncomfortable with that, so rather than do that he decided to find some way to uphold it while throwing us a tiny bone (the COmmerce Clause thing)?

changer1701 on June 28, 2012 at 4:10 PM

Maybe he has a brain tumor. Could cause someone to act erratically. Makes sense since he had a seizure.

Blake on June 28, 2012 at 4:10 PM

I don’t think there’s any way they would have written the dissent as they did knowing it would be a dissent. The luxury of writing the dissent is the ability to hone in those aspects of the majority opinion that are weakest and that support your position most strongly. It is absolutely bizarre.

JDF123 on June 28, 2012 at 4:10 PM

Way to pick ‘em Bush.

rplat on June 28, 2012 at 4:10 PM

Exit quotation from Romney’s website: “As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.”

Yeah, something tells me that will be edited very soon.

Doughboy on June 28, 2012 at 4:10 PM

Get that loser’s smug picture off the main page.

rndmusrnm on June 28, 2012 at 4:10 PM

I’m going to go with yes, but for some reason Justice John Roberts caved at the very last minute. Obama probably pulled a Chicago politics tactic on him, Nice Family you got their John Roberts, be a damned shame if something happened to it. Perhaps we can get our congressional representative to pass an Affordable Firearms Act using the same justification Roberts gave to upholding Obamacare…

SWalker on June 28, 2012 at 4:10 PM

So Roberts switched so he could author an opinion?

More has been sold out for less…

cajun carrot on June 28, 2012 at 4:07 PM

No, that can’t be it. If he had voted properly, it would have been 5-4 against obamacare (or at least against the individual mandate), and he would have been the senior justice (as the Chief always is, regardless of years on the court) in THAT majority instead.

The “switching in order to author the opinion” was the explanation for the hypothetical 6-3 liberal win, where switching his vote would be the difference between a liberal majority with the opinion written by a liberal hack and a liberal majority with the opinion written by someone I previously thought was conservative.

Mr. Prodigy on June 28, 2012 at 4:10 PM

It wasn’t so much MSNBC or the New Republic as it was terror at such a massive repudiation of both Congress and the President with only 5-4 votes.

NotCoach on June 28, 2012 at 4:09 PM

Instead of massive repudiation of the American public with only 5-4 votes.

I hope Roberts enjoys being burned in effigy, because I suspect that’s going to be happening now.

KingGold on June 28, 2012 at 4:10 PM

Roberts caved, but at least he let the door open on what the thing truly is. A major tax increase on the country, and they limited the commerce clause. This personally doesn’t effect me cause I pay health insurance…not unless the rates go up in a dramatic way.

So it what it is….a huge tax increase on everyone, with the exception of those who get health care free. Obama voters.

rubberneck on June 28, 2012 at 4:11 PM

Roberts is playing the long game, I think. Gutting the commerce clause AND putting Obama behind the 8 ball is going to be best for the Republic in the long run.

Red Cloud on June 28, 2012 at 4:11 PM

Since this is a tax can it be repealed by a simple majority instead of a super majority?

Vince on June 28, 2012 at 4:11 PM

How the hell do we expect Mitt Romney, John Boehner and Mitch McConnell to actually have the stones to go through with a repeal when a Republican Chief Justice doesn’t?

Democracy isn’t two wolves and a lamb voting what to eat for lunch.

Cyanide is what’s for lunch.

JamesSeanMcKeane on June 28, 2012 at 4:11 PM

The only silver lining is, it’s going to help Obama get defeated.

RBMN on June 28, 2012 at 4:11 PM

What pictures did Kagan show him?

SouthernGent on June 28, 2012 at 4:11 PM

Just call him Chief Justice Benedict Roberts.

Bitter Clinger on June 28, 2012 at 4:12 PM

What happened to the contempt vote?

Dannyp8262 on June 28, 2012 at 4:12 PM

Traitor Roberts.

GardenGnome on June 28, 2012 at 4:12 PM

Really??!!!! The only way to make me more angry is to say that we originally won the vote until Roberts log rolled under the pressure from the beltway undercurrent.

If this is true, is there any chance that the truth will come out at some point?

God, I cannot stop seething over this. What an absolute betrayal by Roberts.

Does this mean that the government can “punish” me with a tax for not buying the right products? That is really scary…

RedSoxNation on June 28, 2012 at 4:12 PM

If the House passes repeal and the Senate votes one of two things will happen. Senators up for reelection will go on record as voting against repeal or it passes and Obama has to veto it. Win-win

txmomof6 on June 28, 2012 at 4:09 PM

That’s assuming Harry Reid ever let it make it to the floor to vote on.

It’s salve to the republican base, it’s a gesture they know won’t pass.

Dr Evil on June 28, 2012 at 4:13 PM

I was referring to the repeal vote this summer, not after the election.

txmomof6 on June 28, 2012 at 4:13 PM

John Roberts Arnold….

RedSoxNation on June 28, 2012 at 4:13 PM

I hope Roberts enjoys being burned in effigy, because I suspect that’s going to be happening now.

KingGold on June 28, 2012 at 4:10 PM

Need any help gathering straw?

Mr. Prodigy on June 28, 2012 at 4:13 PM

I’ll be the conspiracy theorist for a moment. Any chance someone got to CJ Roberts forcing him to reconsider his vote?

hopeful on June 28, 2012 at 4:13 PM

The Supreme Court voted 7-2 to allow STATES to opt out of Medicaid Expansion program. I think that this is a huge decision because Obamacare was going to pay for the uninsured with the Medicaid Expansion program. Now that at least 26 states do not have to do so then the unisured who live in these states have to pay for their own health insurance or pay their taxes. Most of them are democrat voters…LOL…

mnjg on June 28, 2012 at 4:08 PM

I like that shade of silver.

tdpwells on June 28, 2012 at 4:14 PM

Roberts is playing the long game, I think. Gutting the commerce clause AND putting Obama behind the 8 ball is going to be best for the Republic in the long run.

Red Cloud on June 28, 2012 at 4:11 PM

Abject denial.

Who needs the Commerce Clause when anything Congress can possibly dream up can be construed as a tax?

EddieC on June 28, 2012 at 4:14 PM

What happened to the contempt vote?

Dannyp8262 on June 28, 2012 at 4:12 PM

Still waiting. They’re voting on a Democrat motion to delay by sending it to a different committee.

RBMN on June 28, 2012 at 4:14 PM

That’s assuming Harry Reid ever let it make it to the floor to vote on.

It’s salve to the republican base, it’s a gesture they know won’t pass.

Dr Evil on June 28, 2012 at 4:13 PM

I think McConnell has ways of forcing a vote. Unanimous consent for one, but there are others.

txmomof6 on June 28, 2012 at 4:14 PM

I agree the pressure line is pure BS…. SCOTUS Justices are free from this kind of ‘pressure.’

If a court considers a law and there are multiple ways of looking at the law and one way (mandate) is unconstitutional but another (tax) is constitutional, and without explicit constitutional prohibition, justices tend towards upholding the law.

From the ruling… it looks to me that Roberts moved over on this basis.

lexhamfox on June 28, 2012 at 4:14 PM

Sounds like someone needs to do the kind of analysis that makes people think Ayers wrote Dreams from my Father on those opinions!

Waggoner on June 28, 2012 at 4:14 PM

Roberts is playing the long game, I think. Gutting the commerce clause AND putting Obama behind the 8 ball is going to be best for the Republic in the long run.

Red Cloud on June 28, 2012 at 4:11 PM

I really, really, really can’t agree with you here. The floodgates Roberts just opened up with Congress’s taxation power are staggering. The abuse that could flow from this decision is mind-boggling.

Think about it. A future Congress could mandate – sorry, “tax” – you into buying a gun, a Bible or broccoli, make you join an exercise program, make you perform community service at the local abortion clinic, maybe?

KingGold on June 28, 2012 at 4:14 PM

I’ll be the conspiracy theorist for a moment. Any chance someone got to CJ Roberts forcing him to reconsider his vote?

hopeful on June 28, 2012 at 4:13 PM

Could be. But what does it matter–he caved either way.

Mr. Prodigy on June 28, 2012 at 4:14 PM

I think Roberts defused a political situation by making it a less political judgement, he softened an otherwise liberal opinion, and he more or less booted it back to the public to vote for better politicians if the 70% really don’t like it. i’m not as pessimistic as some. I think the tea partiers who went to town halls are going to kick it into high gear for this fall.

Queen0fCups on June 28, 2012 at 4:14 PM

Yep, it is always better to repudiate the American people than there rulers…

d1carter on June 28, 2012 at 4:14 PM

6- I’m mad at Roberts, but he fired up the base in a way Romney never would have

pamplonajack on June 28, 2012 at 4:03 PM

This – but not just fired up the base – indies will be supercharged as well.

tru2tx on June 28, 2012 at 4:14 PM

I think there are more problems: How can the HHS give waivers from a tax? Can Timmy Turbotax even do that? I see an equal proteciton challenge here. Some states were denied waivers, and others got them.

Aren’t the Amish and Muslims exempt? How can you exempt certain religions? I see another EP as well as a 1st Amendment challenge here.

IIRC, the “tax” is around $750. No way will Boehner increase that. So any rational young person with limited funds will forgo coverage until he gets sick or injured. Then he’ll ge the guranteed coverage the carriers must provide. How can they afford to do this without raising premiums sky high?

If Sebelius tries to regulate them out of existence, she runs afoul of Duquesne Light & Power (9-0), which says you can’t regulate a business out a reasonable profit. So do they start rationing health care? Shades of the 1980s when HMOs starting kicking people out of hospitals the day after surgery. That was a PR disaster.

And there is still the 1st Amendment challenge to the contraceptive mandate. That will not go away. After Hosanna-Tabor (9-0), the Court has sent a pretty strong signal government intrusion in how religious organizations are run.

I think Nancy is partying too soon. I look forward to 11/7/12, and 1/21/13. Can’t filibuster a bill under budget reconciliation, so don’t need 60 GOP in the Senate.

Wethal on June 28, 2012 at 4:14 PM

Instead of massive repudiation of the American public with only 5-4 votes.

I hope Roberts enjoys being burned in effigy, because I suspect that’s going to be happening now.

KingGold on June 28, 2012 at 4:10 PM

He’s more afraid of the Left than he is conservatives.

He probably watched the coverage of OWS vs TEA party, which one would you be worried about betraying?

Dr Evil on June 28, 2012 at 4:15 PM

What pictures did Kagan show him?

SouthernGent on June 28, 2012 at 4:11 PM

She threatened to show him pictures of herself, naked, unless Roberts went along.

EddieC on June 28, 2012 at 4:15 PM

EddieC on June 28, 2012 at 4:14 PM
They already had this power. They just don’t use it because it is rejected by the voters.

txmomof6 on June 28, 2012 at 4:15 PM

What happened to the contempt vote?

Dannyp8262 on June 28, 2012 at 4:12 PM

Doing what they do best in Congress: D1cking around.

They are currently voting on a motion to refer the resolution to oversight and government reform.

NotCoach on June 28, 2012 at 4:15 PM

BTW, I knew Roberts was soft after Exxon v. Baker.

And once again, we were warned.

JamesSeanMcKeane on June 28, 2012 at 4:15 PM

Or, as yet another alternative, maybe Roberts was on the fence all along, which spurred the conservative bloc and the liberal bloc to each write their own “majority” opinions in hopes of persuading him to join them as the fifth vote. When the conservative bloc ended up being disappointed, they left their opinion more or less as is, whether due to time constraints or pique or both.

This seems likely. It’s possible that on the first vote it was 4-4 with Roberts abstaining. So he knew it was all on him from the get-go. He decided to make the least controversial ruling possible, while still hammering the Congress on the Commerce and Necessary&Proper clauses.

Still pretty strange that the dissent did not address Roberts’ opinion directly.

rockmom on June 28, 2012 at 4:15 PM

Does this mean that the government can “punish” me with a tax for not buying the right products? That is really scary…

RedSoxNation on June 28, 2012 at 4:12 PM

Better get a Volt and subscription to Vanity Fair now just to be on the safe side. In other news, the tax on copies of Atlas Shrugged just spiked 4000%

Kataklysmic on June 28, 2012 at 4:16 PM

He took away Obama’s platform against the 4 white guys and Uncle Tom who took away America’s health care.Which ever way this was going to go, it was going to be messy.He also limited the Commerce Claus, and called it what it is – a tax on the middle class.

Queen0fCups on June 28, 2012 at 4:16 PM

She threatened to show him pictures of herself, naked, unless Roberts went along.

EddieC on June 28, 2012 at 4:15 PM

Heh. OK in that case, I understand his vote! /

changer1701 on June 28, 2012 at 4:16 PM

Since this is a tax can it be repealed by a simple majority instead of a super majority?

Vince on June 28, 2012 at 4:11 PM

That is the most important question of the day. If this is the case, maybe the whole thing can go away.

But I would not hold my breath…

God this sucks…what a disappointing day…

At least I have hotair.com to vent…

RedSoxNation on June 28, 2012 at 4:16 PM

Wethal on June 28, 2012 at 4:14 PM
It may be sooner, if the House votes on repeal July 11 and McConnell gets a vote on repeal soon after.

txmomof6 on June 28, 2012 at 4:17 PM

Abject denial.

Who needs the Commerce Clause when anything Congress can possibly dream up can be construed as a tax?

EddieC on June 28, 2012 at 4:14 PM

That’s what the Tea Party is for. Get conservatives into Congress and build a firewall.

Wethal on June 28, 2012 at 4:17 PM

IMPEACH JOHN ROBERTS.

I’ve had it with traitors.

wildcat72 on June 28, 2012 at 4:17 PM

Exit quotation from Romney’s website: “As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.”

I’ll give Romney 24 hours to remove Roberts name from that list.

Starting NOW.

Norwegian on June 28, 2012 at 4:17 PM

Since this is a tax can it be repealed by a simple majority instead of a super majority?

Vince on June 28, 2012 at 4:11 PM </blockquote
Yes but you still need the President's signature. But if he vetos makes the argument for Romney that much stronger.

txmomof6 on June 28, 2012 at 4:18 PM

Obamacare started in the Senate.

Tax bills must start in the House.

It cannot be a tax bill.

Not legally.

profitsbeard on June 28, 2012 at 4:18 PM

Wethal on June 28, 2012 at 4:14 PM

Good points. Calling this a tax makes a hash out of the rest of the law and certainly in the way it has been administered so far. But that isn’t John Roberts’ problem.

Congress threw him a pile of sh!t covered in frosting, he took off the frosting and handed it back to them.

rockmom on June 28, 2012 at 4:18 PM

hopeful

I said it elsewhere, but

the more I look at that picture of Roberts, the more he reminds me in a vague way of that creep Senator from ‘The Last Boy Scout’. Maybe Obama was able to dig something up…

avgjo on June 28, 2012 at 4:18 PM

You think that once we retake the government we can start imposing a mandate – sorry again, a “tax” – requiring Supreme Court justices to vote our way on major cases or pay a fine?

Or maybe we can mandate – keep screwing that up – “tax” people into registering as Republicans? Wash blood with blood, folks.

KingGold on June 28, 2012 at 4:18 PM

What happened to the contempt vote?

Dannyp8262 on June 28, 2012 at 4:12 PM

They have yet to vote on it. If I have it right, all discussion is done, but the Dems have been stalling and they are voting on a motion to refer the whole matter to the House Oversight committee and call in people from the Bush administration. I could have those details wrong as I have only been checking in every now and then.

INC on June 28, 2012 at 4:18 PM

John Roberts Souter.

He had in his hands the power to start a return to the Constitution, and whether out of fear or avarice decided to sell his nation down the river instead.

This is the greatest legal defeat for America since R v W and a sign that the political class will not address our myriad problems before we collapse, whether they have a D or an R after their name….

18-1 on June 28, 2012 at 4:18 PM

I am the token non-Judeo-Christian here, so let me play my fave game of Devil’s Advocate:

First of all, I am struck by the part in Roberts’s opinion, where he states that it is not the role of the Court to bail the people out of stupid political decisions. Maybe Roberts sees 0bamacare as a political decision that resulted from the peoples’ initial choice to give the reins to the Democrats from 2006 onwards. It’s not like nobody knew they were going to try something like this. If there was nothing about the way the law was put together that was blatantly over the line, there was nothing Roberts felt he could do. And for political decisions, he figures it’s the peoples’ call, not the Justices’. Haven’t we been griping for years about an unelected judiciary legislating from the bench? If we want 0bamacare gone, we have to elect Republicans who will get rid of it.

Secondly, I am recalling Ginsburg’s remarks about the fighting over severability. What if the initial outcome was overturning the mandate but not enough of the law—a splitting of the baby that would be the worst of all worlds? Why not just keep the law and set the pick for the next President and Congress?

Thirdly, think of all the ways this decision has hit 0bama in the squeekhole—no Supreme Court to run against as he was doubtlessly planning, a potentially re-fired-up Tea Party, slapping a big “TAX” label on 0bamacare—–why, one would think that chalice was a wee bit poisoned?

Just food for thought.

Sekhmet on June 28, 2012 at 4:18 PM

Nullify Now!

As I write about over at RedState, the only sure way out of this is via Federalism and for states to forcefully reassert their rights.

Be sure to read the entire series.

Charlemagne on June 28, 2012 at 4:18 PM

She threatened to show him pictures of herself, naked, unless Roberts went along.

EddieC on June 28, 2012 at 4:15 PM

Start the reactor

JamesSeanMcKeane on June 28, 2012 at 4:18 PM

Congress has always had the power tax – the problem for them is that it would never have passed had they called it a tax, Roberts just pointed out you can call it an ice cream sundae if you like, but it does not change what it is – a tax.

Queen0fCups on June 28, 2012 at 4:18 PM

IMPEACH JOHN ROBERTS.

I’ve had it with traitors.

wildcat72 on June 28, 2012 at 4:17 PM

Hmmmm… simple impeachment is an awfully gentle treatment of traitors, don’t you think?

Mr. Prodigy on June 28, 2012 at 4:19 PM

How the hell do we expect Mitt Romney, John Boehner and Mitch McConnell to actually have the stones to go through with a repeal when a Republican Chief Justice doesn’t?

JamesSeanMcKeane on June 28, 2012 at 4:11 PM

The first three have to worry about future elections. Roberts doesn’t.

Jon0815 on June 28, 2012 at 4:19 PM

Roberts is playing the long game, I think. Gutting the commerce clause AND putting Obama behind the 8 ball is going to be best for the Republic in the long run.

Red Cloud on June 28, 2012 at 4:11 PM

He didn’t gut the Commerce Clause – he stopped it’s expansion in some cases and invented extra taxing power.

What I want to know is how he could have supported the tax power when Congress is only allowed to levy taxes associated with it’s enumerated powers – e.g., If Congress didn’t have authority under the Commerce Clause to create the mandate then it doesn’t have the authority to tax you for not complying with it.

gwelf on June 28, 2012 at 4:19 PM

Playing the long-game, choose one:

1. Obamacare overturned. Obama campaigns against a right-wing cabal that just denied lifesaving healthcare to the entire working class.

2. Obamacare upheld. Romney campaigns against the largest tax increase in US history, as the Great Recession drags on.

You can make a compelling case that this ruling makes the Republican economic talking points a lot stronger. All Democrats can say is that their hugely unpopular legislation does not break any laws.

The Resolute Desk on June 28, 2012 at 4:19 PM

There is no way Roberts “chickened out” and I don’t believe this was a last minute switch. I think Roberts has been planning this all along. He knew he was never going to get a 6-3 vote to overturn anything. He has said since day one that he wants to restore credibility to the court in the public’s eye and a 5-4 majority against ACA just wasn’t going to do it. He also knew that if the mandate was a tax, it would be both vulnerable to further litigation and poison to the Obama campaign. And he further knew that tax challenges would have to happen sooner than 2014, which is why he appointed the amicus curiae to argue that the Anti-injunction act applied knowing that the government would have to argue that it didn’t, therefore opening the tax to immediate law suits. And overall he accomplished what libertarians really wanted all along, which was to defang the Commerce Clause and restore federalism regarding Medicaid. It’s brilliant both as political intrigue and as self preservation.

gengwall on June 28, 2012 at 4:19 PM

Norwegian on June 28, 2012 at 4:17 PM

The hell difference does it make to you? You’ve made it abundantly clear you’re never voting for Romney.

KingGold on June 28, 2012 at 4:19 PM

Currently in a procedural vote on Dingell’s motion to refer the matter to the Oversight and Government Reform Committee. It will go down.

Difficultas_Est_Imperium on June 28, 2012 at 4:19 PM

Wethal on June 28, 2012 at 4:14 PM

Thanks for your analysis.

INC on June 28, 2012 at 4:19 PM

Thanks to Roberts, Congress may require us to do anything and “tax” anyone who refuses. And of course, anyone who does not pay the “tax” goes to prison.

Congress already has the power to do this. Keep in mind, taxes are heavily influenced by politics, which is why Obama and the Dems have not let Bush’s tax cuts expire.

So what’s so new and groundbreaking about ObamaCare now? Nothing. It’s a tax that can be repealed, and tax repeals can’t be filibustered in the Senate. You think those Dems who are up for reelection are going to vote to keep the world’s largest tax increase on the middle class in place? We already have Dems skipping the DNC convention because they are at risk of being kicked out. No way. This is so much easier to defeat now.

Kim Priestap on June 28, 2012 at 4:20 PM

A few thoughts, both my own and stolen shamelessly from smart posters at ace of spades:

1- the commerce clause as a regulatory toy was smacked down. Libs on the court recognize this
2- congress had the power to tax anything already. now we can vote them out, instead of an unelected HHS secretary (at least in future laws)
3- nothing changes today. Obama care has been law since 2010. It feels that way but the same stupid law is the same today as yesterday
4- Obama CANNOT run against the court
5- conservatives will make it very clear to Romney (rich ones at least) if we have 51 GOP senators you MUST nominate a hard conservative for the court. no compromises.
6- I’m mad at Roberts, but he fired up the base in a way Romney never would have
7- the three issues of this campaign: debt, jobs, obamacare- they are all favoring Romney. Forget social issues!
8- Obama care is still wildly unpopular. In swing states especially
9- by making it a tax, now the GOP can run ads calling Obama the biggest taxer ever
10- from now till November anything bad related to health care can be blamed on obamacare. Had it been overturned all would be blamed on that evil court decision

Obviously a full repeal would have been awesome but considering our “loss” still SOME silver linings!!!

pamplonajack on June 28, 2012 at 4:03 PM

I’ve had time to cool after the severe let down of this morning. After a long lunch I can to nearly the same conclusions you did. There is a piece by George Will that echos some of the same sentiment.

Stay Angry. Get Active.

GadsdenRattlers on June 28, 2012 at 4:20 PM

That’s what the Tea Party is for. Get conservatives into Congress and build a firewall.

Wethal on June 28, 2012 at 4:17 PM

Since we no longer live in a constitutional republic, but rather a parliamentary democracy, I guess that’s our only option.

EddieC on June 28, 2012 at 4:20 PM

People seem to forget that we have a big affirmative action case coming up… how do you expect to be able to curtail AA right after striking down the biggest legislative achievement of the first black president? Sorry, but that’s just not going to work… there’s also a couple of big voting rights act cases coming up too.

If he’s spooked, that’s what he’s spooked of.

ninjapirate on June 28, 2012 at 4:20 PM

Sekhmet on June 28, 2012 at 4:18 PM
Not to mention it takes 51 votes to repeal a tax

txmomof6 on June 28, 2012 at 4:20 PM

EddieC on June 28, 2012 at 4:14 PM
They already had this power. They just don’t use it because it is rejected by the voters.

txmomof6 on June 28, 2012 at 4:15 PM

Ditto. They like to use the commerce power because most voters don’t know what it is. “Tax” they understand.

That’s why Obama, Reid, Pelosi, et all kept saying the “fine” by the IRS was not a tax. Obama had promised that no one making under $250K would see their taxes increase – no way, no how.

Wethal on June 28, 2012 at 4:20 PM

Congress has always had the power tax – the problem for them is that it would never have passed had they called it a tax, Roberts just pointed out you can call it an ice cream sundae if you like, but it does not change what it is – a tax.

Queen0fCups on June 28, 2012 at 4:18 PM

But he had no business doing that. It was a penalty…if he wanted it to be a tax, that’s up to Congress to change. He essentially just legislated from the bench.

changer1701 on June 28, 2012 at 4:21 PM

So many sour grapes, make so much good whine!

The bottom line is this is a century defining win for Barack, combines with his reversal on Gay Marriage and his dream act magic trick positioning him perfectly to go against the illegal alien hiring, business destroyer, outsourcing innovator and olympic horse owner who also happened to pass the original mandate.

w00t

tommyhawk on June 28, 2012 at 4:21 PM

gengwall on June 28, 2012 at 4:19 PM

The load in his drawers was so big they had to install a special lift in the back of the courthouse.

NotCoach on June 28, 2012 at 4:21 PM

I think Roberts called a spade a spade.

txmomof6 on June 28, 2012 at 4:21 PM

He knew he was never going to get a 6-3 vote to overturn anything. He has said since day one that he wants to restore credibility to the court in the public’s eye and a 5-4 majority against ACA just wasn’t going to do it.
gengwall on June 28, 2012 at 4:19 PM

Right… because the best way to restore the court’s credibility is to make decisions that are based on concerns about how the court looks.

Mr. Prodigy on June 28, 2012 at 4:21 PM

Hilarious in a macabre sort of way, but on Romney’s web site he says he will nominate judges in the mold of John Roberts…LOL

idesign on June 28, 2012 at 4:21 PM

I really believe that this may be the case for two reasons. One, President Obama was acting as if he was going to lose. He must have had some insight on the initial vote. Second, Ginsberg’s opinion reads more like a dissent than Kennedy’s.

When was the last moment that he could change his vote…

I would love it if a clerk or someone on the inside were able to leak the truth…

If he changed his vote after the fact, that will make it more heartbreaking…

RedSoxNation on June 28, 2012 at 4:22 PM

George Herbert Walker Bush gave us Souter

George W. Bush gave us Souter Roberts…

Gohawgs on June 28, 2012 at 4:22 PM

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