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

ninjapirate on June 28, 2012 at 4:20 PM

If Roberts was spooked before, he should REALLY be spooked now, after having betrayed a solid majority of the American people.

Steve Z on June 28, 2012 at 4:43 PM

At best, Republican Presidents have a 1-in-2 shot of nominating a right-of-center Justice. Romney will more-likely replace like with like, which means if a liberal retires, he’ll pick a liberal.

Steve Eggleston on June 28, 2012 at 4:41 PM

Our presidents have rarely held the Senate. Roberts and Alito were nominated when we had it.

If we take it again, we’ll have a higher change of a judicial conservative, because nobody will give a damn about the Democrats’ caterwauling.

KingGold on June 28, 2012 at 4:43 PM

pfw51 on June 28, 2012 at 4:39 PM

No offense (I realize this isn’t your idea), but that’s the most batsh*t, dizzying spin I’ve heard today.

Erich66 on June 28, 2012 at 4:43 PM

DONE. HOLDER IS IN CONTEMPT OF CONGRESS.

de rigueur on June 28, 2012 at 4:43 PM

At best, Republican Presidents have a 1-in-2 shot of nominating a right-of-center Justice. Romney will more-likely replace like with like, which means if a liberal retires, he’ll pick a liberal.

Steve Eggleston on June 28, 2012 at 4:41 PM

Why do you assume he’d replace like with like? He knows the base won’t stand for a lib, or another Harriet Myers.

changer1701 on June 28, 2012 at 4:44 PM

Breaking: SCOTUS overrules contempt vote…deemed a tax.

d1carter on June 28, 2012 at 4:44 PM

So we have four Justices Scalia, Alito, Thomas, and Kennedy writing a “dissent” to strike the mandate and the entire law; four Justices Ginsburg, Stephens, Kagan, and Sotomayor writing a “dissent” saying that the mandate doesn’t violate the Commerce Clause; and the Chief Justice writing a “majority opinion” that disagrees with both sides and upholds the mandate because it’s a “tax”, although 8 justices disagree with him.

Steve Z on June 28, 2012 at 4:36 PM

This has had me scratching my head all day. Roberts is the only justice arguing it’s a tax. How does that become a majority opinion?

Bitter Clinger on June 28, 2012 at 4:44 PM

Wolfie is beside himself

cmsinaz on June 28, 2012 at 4:44 PM

Okay. Holder’s in contempt. Now what?

kingsjester on June 28, 2012 at 4:45 PM

All this talk from Odumbo about how the American people won today. If we won how come the act doesn’t apply to you and your pals in Congress?

rjoco1 on June 28, 2012 at 4:45 PM

Breaking: SCOTUS overrules contempt vote… deemed a tax.

d1carter on June 28, 2012 at 4:44 PM

Gallows humor… me likey.

Fallon on June 28, 2012 at 4:46 PM

It would have been nicer if Roberts had gutted the Commerce Clause by ruling ObamaCare unconstitutional.

BadgerHawk on June 28, 2012 at 4:42 PM

This.

Nothing stopped him from doing that.

riddick on June 28, 2012 at 4:46 PM

So who thinks Scott Brown believes he will win another election based on opposition to ObamaCare? Rest in Peace Teddy./

txmomof6 on June 28, 2012 at 4:46 PM

This has had me scratching my head all day. Roberts is the only justice arguing it’s a tax. How does that become a majority opinion?

Bitter Clinger on June 28, 2012 at 4:44 PM

It was a “compromise”. The four mentally challenged justices were not going get to keep the mandate without making this compromise with Roberts.

NotCoach on June 28, 2012 at 4:46 PM

Breaking: SCOTUS overrules contempt vote…deemed a tax.

d1carter on June 28, 2012 at 4:44 PM

Well thats.. reasonable.

the_nile on June 28, 2012 at 4:46 PM

potentially re-fired-up Tea Party

Sekhmet on June 28, 2012 at 4:18 PM

Potentially? Retreat? Hell! (Quote from “Battle for Los Angeles” where he’s explaining the “Retreat Hell” retort offered in WWI when their group was commanded to withdraw, and the answer was “Retreat? Hell! We just got here!”)

I’m ready to go home and order a Gadsden flag and a pole to run it up! My neighbor around the corner has one, and I thought it was overblown… until now.

RETREAT? HELL!

dominigan on June 28, 2012 at 4:47 PM

Why do you assume he’d replace like with like? He knows the base won’t stand for a lib, or another Harriet Myers.

changer1701 on June 28, 2012 at 4:44 PM

That’s a good point. It used to not be an issue, because pretty much our entire Senate conference was full of Beltway creatures, but that just isn’t the case anymore.

Paul, Lee, DeMint and others could always threaten a revolt if Romney doesn’t nominate a conservative with an actual conservative record, and I think they may have just enough power to make or break the vote.

KingGold on June 28, 2012 at 4:47 PM

KingGold on June 28, 2012 at 4:40 PM

I am nearing the point where I would support Satan himself to rid our Great Nation of 0.

Bmore on June 28, 2012 at 4:48 PM

Fallon on June 28, 2012 at 4:46 PM

When you can do nothing more…you can always laugh.

d1carter on June 28, 2012 at 4:48 PM

I am nearing the point where I would support Satan himself to rid our Great Nation of 0.

Bmore on June 28, 2012 at 4:48 PM

Can’t have one without the other.

NotCoach on June 28, 2012 at 4:48 PM

In todays “Best of the Web Today” James Taranto has an interesting idea that Roberts’ decision may have been a strategic one that limits the future opportunities others will have to misapply the commerce clause, tell the country that the only way to get rid of this law once and for all is to elect people who will repeal it, and fire up the conservative base to get them out to vote. If true it’s a risky strategy but it could pay off big time. Maybe Roberts realized that no matter what the court decided, Obamacare would never really go away if Obama wins another term so this was the best chance to kill it. I think Taranto might be on to something and a year from now we’ll look back on this as the greatest act ever by a Supreme Court justice. At least, I hope.

pfw51 on June 28, 2012 at 4:39 P

Others have made similar claims: Erick Erickson at Red State and Jay Cost at Weekly Standard. Very Strange.

esr1951 on June 28, 2012 at 4:48 PM

Our presidents have rarely held the Senate. Roberts and Alito were nominated when we had it.

If we take it again, we’ll have a higher change of a judicial conservative, because nobody will give a damn about the Democrats’ caterwauling.

KingGold on June 28, 2012 at 4:43 PM

Like I said, 1-in-2 chance.

Steve Eggleston on June 28, 2012 at 4:49 PM

Steve Eggleston on June 28, 2012 at 4:41 PM

You’re exactly right – establishment republicans rely on government and big bucks flowing into Washington for their power. THEY WILL NEVER load the SCOTUS with a decisive solid-Conservative majority like the Dims reliably load the court with libs – who never, ever betray their ideals.

The GOP wants Conservative Slaves to THINK they have their best interests at heart – they have nothing of the such.

HondaV65 on June 28, 2012 at 4:49 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

Or to rewrite laws and call a mandate a tax even though the mandate is rejected as a tax for purposes of standing yet it is actually a tax for purposes of not being a mandate so they don’t have to actually restrict Congresses Commerce Clause authority…

Mealy mouthed cork sucker.

NotCoach on June 28, 2012 at 4:24 PM

Heh, well put.

ToddPA on June 28, 2012 at 4:49 PM

Okay. Holder’s in contempt. Now what?

kingsjester on June 28, 2012 at 4:45 PM

Holder would be is the first sitting attorney general to be held in contempt of Congress…

Two contempt votes are planned.

A criminal contempt resolution would send the matter to the U.S. Attorney for the District of Columbia — who works for Holder.

A civil contempt resolution, also to be voted on, would allow the House to go to sue Holder in court in an attempt to get the records.

Fallon on June 28, 2012 at 4:49 PM

I am nearing the point where I would support Satan himself to rid our Great Nation of 0.

Bmore on June 28, 2012 at 4:48 PM

That’s the attitude I love to hear.

Sadly, we threw away New York’s race earlier this week, but there is more hope on the horizon with moderate types fighting in deep blue territory.

And I’m more than willing to pitch in to the SCF and make sure that DeMint’s contingent gets bigger and bigger.

KingGold on June 28, 2012 at 4:49 PM

Roberts basically rewrote the administration’s argument for it in order to find it constitutional.

And if the mandate is ok as a tax, shouldn’t the bill still be unconstitutional because it didn’t originate in the House?

And how the hell does the anti-injunction act not apply if this thing is a tax?

This whole thing is one giant W.T.F.

BadgerHawk on June 28, 2012 at 4:50 PM

lexhamfox on June 28, 2012 at 4:32 PM

Thanks. Guess we still have the HHS waiver of a tax and the contraceptive mandate with which to challenge.

Wethal on June 28, 2012 at 4:35 PM

On the waiver process I think you have a chance of at least clarifying the process of granting the waiver.

The contraceptive mandate is more rooted in prior judicial rulings (EEOC Rulings & Federal Courts), however, and it has survived several legal challenges. It actually predates the ACA and Obama. I think that outside of employers who are all of the same faith (who aren’t impacted anyway), this too will stand.

lexhamfox on June 28, 2012 at 4:50 PM

Our presidents have rarely held the Senate. Roberts and Alito were nominated when we had it.

If we take it again, we’ll have a higher change of a judicial conservative, because nobody will give a damn about the Democrats’ caterwauling.

KingGold on June 28, 2012 at 4:43 PM

Are you a “My Little Pony” fanboi? Sounds like it …

“HEY LETS ELECT MORE REPUBLICANS SO THEY CAN REPEAL THE LAWS FOUND CONSTITUTIONAL BY REPUBLICAN JUSTICES!!”

lol

HondaV65 on June 28, 2012 at 4:51 PM

Manchin – check
McCaskill – check
Tester – check
Brown(Ohio) – check
Nelson – check
Stabenow – check
Cantwell – check
Casey – check
Menendez – check

All voted for ObamaCare and up for reelection in November.

txmomof6 on June 28, 2012 at 4:51 PM

holder trashing the gop natch

cmsinaz on June 28, 2012 at 4:52 PM

Others have made similar claims: Erick Erickson at Red State and Jay Cost at Weekly Standard. Very Strange.

esr1951 on June 28, 2012 at 4:48 PM

They are just trying to give Robert’s cover, he is a Bush appointee (Republican) they are more concerned about the hit the Republican brand is taking over this ruling by Roberts.

Dr Evil on June 28, 2012 at 4:52 PM

Okay. Holder’s in contempt. Now what?

kingsjester on June 28, 2012 at 4:45 PM

Crickets.

But according to Fox, Holder is going to deliver a speech at 5:00.

JPeterman on June 28, 2012 at 4:52 PM

holder blaming everyone but himself…must have gotten some pointers from dear leader

cmsinaz on June 28, 2012 at 4:52 PM

Okay. Holder’s in contempt. Now what?

kingsjester on June 28, 2012 at 4:45 PM

Now it probably goes into civil court to determine which documents Obama could indeed invoke EP over, and which should be produced. The precedent is U.S. v Nixon. But this probably will be tied up and extended past the election, which was Obama’s goal all along.

TarheelBen on June 28, 2012 at 4:53 PM

HondaV65 on June 28, 2012 at 4:51 PM

Nobody cares, you astral plane dwelling Obama voter.

KingGold on June 28, 2012 at 4:53 PM

Others have made similar claims: Erick Erickson at Red State and Jay Cost at Weekly Standard. Very Strange.

esr1951 on June 28, 2012 at 4:48 PM

They’re idiots.

ThePrimordialOrderedPair on June 28, 2012 at 4:53 PM

JPeterman on June 28, 2012 at 4:52 PM

he’s talking now…blames others and said he did everything he could…

LIAR!!!!

cmsinaz on June 28, 2012 at 4:53 PM

Taranto at WSJ:

So what we have here is another 5-4 decision, just like Bush v. Gore and Citizens United. But as a political matter, NFIB v. Sebelius is different in two important ways. The obvious one is that this time the left loves the outcome. Somebody will have fun compiling a list of quotes from lefties bewailing 5-4 decisions yesterday, then praising this one. You can start with Reich.

The second difference is that the result in this decision is likely to be hated by people who aren’t immersed in politics. The left hated Bush v. Gore for partisan reasons and hates Citizens United for ideological ones. People who aren’t particularly partisan or ideological had no reason to care about either of those rulings. But this one will affect their health care, and a large majority of the public has long been hostile, and rightly so, to ObamaCare.

What’s more, Roberts’s opinion has made a liar of President Obama, who in a 2009 interview with ABC News insisted that the mandate was “is absolutely not a tax increase.” He even lectured the network’s George Stephanopoulos, who had cited the dictionary definition of tax: “George, the fact that you looked up Merriam’s Dictionary, the definition of tax increase, indicates to me that you’re stretching a little bit right now. Otherwise, you wouldn’t have gone to the dictionary to check on the definition.”

In 2008, Obama promised not to raise taxes on middle-class taxpayers. Oops. Maybe he can win back swing voters by telling them the word gullible isn’t in the dictionary.

http://online.wsj.com/article/SB10001424052702304058404577494622616505142.html

tdpwells on June 28, 2012 at 4:53 PM

TRULY absurd conspiracy theories…

LIAR

cmsinaz on June 28, 2012 at 4:54 PM

cmsinaz on June 28, 2012 at 4:53 PM | Delete | Delete and Ban

Remember…this guy warked at a law firm which represents Islamic Terrorists.

kingsjester on June 28, 2012 at 4:55 PM

I am nearing the point where I would support Satan himself to rid our Great Nation of 0.

Bmore on June 28, 2012 at 4:48 PM

Really? The embodiment of all evil? An entity who’s only wish is for all human life to experience eternal torment in hell. You’d vote for that over Obama? Dude……

libfreeordie on June 28, 2012 at 4:55 PM

They are just trying to give Robert’s cover, he is a Bush appointee (Republican) they are more concerned about the hit the Republican brand is taking over this ruling by Roberts.

Dr Evil on June 28, 2012 at 4:52 PM

I disagree, because the same thoughts have occurred to me and I could care less about the Republican brand.

txmomof6 on June 28, 2012 at 4:55 PM

kingsjester on June 28, 2012 at 4:55 PM

yepper

cmsinaz on June 28, 2012 at 4:56 PM

What’s more, Roberts’s opinion has made a liar of President Obama,

LOL. Anyone who didn’t know that the Dog-Eating, pathological liar was a liar is too stupid for words. Nearly everything that comes out of the guys’ mouth or is penned for him by someone else is a friggin lie. Bad, stupid, transparent lies, too.

Taranto is making a fool of himself … a bigger fool than he was. What an a$$. Roberts is a traitor, a simp, and the Hangman of America. There’s no sugar-coating this.

ThePrimordialOrderedPair on June 28, 2012 at 4:56 PM

they are more concerned about the hit the Republican brand is taking over this ruling by Roberts.

Dr Evil on June 28, 2012 at 4:52 PM

Hit? More like a knockout punch. If this doesn’t kill the GOP then Boehner and McConnell will if they get control of Congress and “replace” ObamaCare with a GOP version of nationalized health care.

It’s coming too!

And you all – in your heart of hearts – know it! You’re just fooling your tiny minds that voting for the GOP may mean you get out of this socialism – LOL – you won’t!

Welcome to the British Conservative Party my friends!!

HondaV65 on June 28, 2012 at 4:56 PM

Andrea Saul‏@andreamsaul

Just crossed $2 million in donations & 20,000+ donors for #FullRepeal of Obamacare. #Mitt2012

sentinelrules on June 28, 2012 at 4:56 PM

Roberts basically rewrote the administration’s argument for it in order to find it constitutional.

And if the mandate is ok as a tax, shouldn’t the bill still be unconstitutional because it didn’t originate in the House?

And how the hell does the anti-injunction act not apply if this thing is a tax?

This whole thing is one giant W.T.F.

BadgerHawk on June 28, 2012 at 4:50 PM

We are not being governed by the U.S. Constitution anymore, we are being Ruled by Fascist. And I am not the only one who came to this conclusion.

Dr Evil on June 28, 2012 at 4:57 PM

From the dissent:

“We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009). Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.”

Ironic, isn’t it, that Roberts, who apparently wants his court to be viewed as restrained and non-political, did this. This is the worst kind of judicial activism, masquerading as judicial restraint. And what could be more political than re-writing a law that legislators were only able to pass because they specifically denied it was a tax law, into a tax law?

Roberts has bent so far over backwards in his effort to look unbiased that he has twisted himself into a pretzel and ends up looking like a spineless fool.

AZCoyote on June 28, 2012 at 4:58 PM

Are you a “My Little Pony” fanboi? Sounds like it …

“HEY LETS ELECT MORE REPUBLICANS SO THEY CAN REPEAL THE LAWS FOUND CONSTITUTIONAL BY REPUBLICAN JUSTICES!!”

lol

HondaV65 on June 28, 2012 at 4:51 PM

Don’t you have some Obama campaign signs to put up?

changer1701 on June 28, 2012 at 4:58 PM

Really? The embodiment of all evil? An entity who’s only wish is for all human life to experience eternal torment in hell. You’d vote for that over Obama? Dude……

libfreeordie on June 28, 2012 at 4:55 PM

Obama’s political mentor, Alinsky, dedicated one of his books to Lucifer. Not as a hyperbolic comment on a blog but in the dedication to the Bible of the Left.

Pi$$ off you despicable worm.

ThePrimordialOrderedPair on June 28, 2012 at 4:58 PM

Really? The embodiment of all evil? An entity who’s only wish is for all human life to experience eternal torment in hell. You’d vote for that over Obama? Dude……

libfreeordie on June 28, 2012 at 4:55 PM

He’s a conservative slave and that’s what they do. John Boehner will rationalize an argument to him that somehow Satan is a capitalist who knows more about the economy – would be more transparent about government – and more responsible with taxpayer dollars …

And he’ll just run right into that voting booth – all glassy-eyed and pull the lever for beelzebub!! LOL

HondaV65 on June 28, 2012 at 4:59 PM

I always liked Roberts but he has today proven himself to be a feckless political hack unworthy of his position.

I believe our Founding Fathers would submit him into eternal damnation for tossing the Constitution out the window.
And for what????? Invitations to more inside the beltway parties ?????

What a scu**ag!

nikophil on June 28, 2012 at 4:59 PM

Roberts is a despicable human being!! He was supposed to be a conservative and this is what we get??? some activist judge who can’t justify the commerce clause so makes up a ridiculous notion about gov’t being able to tax us little peons for anything!!!

I hated this whole thing from the start… for Scotus being a bunch of media whores for stretching this out so long to having the fate of our country resting in the hands of 9 friggin lawyers wearing robes!

I hate Roberts more than Maobama!! At least we knew what we were getting with Maobama!!

LevinFan on June 28, 2012 at 4:59 PM

I disagree, because the same thoughts have occurred to me and I could care less about the Republican brand.

txmomof6 on June 28, 2012 at 4:55 PM

I was referring to Erickson “Red State” CNN contributor, and Weekly Standard. They care about the Republican Brand taking a hit.

Dr Evil on June 28, 2012 at 5:00 PM

Don’t you have some Obama campaign signs to put up?

changer1701 on June 28, 2012 at 4:58 PM

Why waste the money? I don’t think he really needs them to win. :D

HondaV65 on June 28, 2012 at 5:00 PM

Obama finally has something he can legitimately blame Bush for, and it turns out to be his biggest policy achievement.

BadgerHawk on June 28, 2012 at 5:00 PM

Money quote:It’s constitutional bitches.

bluesdoc70 on June 28, 2012 at 5:01 PM

Certainly, we should never see the pudgy and humiliated face of Karl Rove on Fox News Network ever again…right?

Mr. Arrogant on June 28, 2012 at 5:01 PM

libfreeordie, Well I wouln’t vote for you. So there’s that. You still spending time here at HA ? Shouldn’t you be spending your energys on straightening out those fine folks at Morehouse?

Bmore on June 28, 2012 at 5:01 PM

This is the worst kind of judicial activism, masquerading as judicial restraint. And what could be more political than re-writing a law that legislators were only able to pass because they specifically denied it was a tax law, into a tax law?

AZCoyote on June 28, 2012 at 4:58 PM

This. This whole thing is surreal.

BadgerHawk on June 28, 2012 at 5:02 PM

I hate Roberts more than Maobama!! At least we knew what we were getting with Maobama!!

LevinFan on June 28, 2012 at 4:59 PM

You’re halfway there – now if you can only come to terms with the fact that voting for Obama is the only way to save Conservatism – because you MUST burn down the establishment GOP before you can go anywhere with the party …

You’ll be there dude.

HondaV65 on June 28, 2012 at 5:02 PM

Now that I’ve calmed down and the shock has passed….I’m starting to agree with the commentators (Erick Ericson was the first I saw) that basically think Roberts delivered a trojan horse against the left with this ruling. Mind you, its a terrible risk (Obama must lose for it to work fully) but I think calling Roberts a statist stooge is a gross oversimplification at this point.

LukeinNE on June 28, 2012 at 5:02 PM

Done. Holder in contempt.

WisRich on June 28, 2012 at 4:40 PM

Is he in jail yet? lol

Midas on June 28, 2012 at 5:02 PM

And he’ll just run right into that voting booth – all glassy-eyed and pull the lever for beelzebub!! LOL

HondaV65 on June 28, 2012 at 4:59 PM

Sheer pathetic idiocy. ^^^

Bmore on June 28, 2012 at 5:03 PM

Others have made similar claims: Erick Erickson at Red State and Jay Cost at Weekly Standard. Very Strange.

esr1951 on June 28, 2012 at 4:48 PM

Erickson is off his rocker, he’s no conservative anyways. I stopped going to redstate after all the Palin bashing. They’re a bunch of clowns.

LevinFan on June 28, 2012 at 5:03 PM

Dr Evil on June 28, 2012 at 5:00 PM
I know who they are, but my point is the same.

txmomof6 on June 28, 2012 at 5:03 PM

I’m ready to go home and order a Gadsden flag and a pole to run it up! My neighbor around the corner has one, and I thought it was overblown… until now.

RETREAT? HELL!

dominigan on June 28, 2012 at 4:47 PM

Good for you mine has flown since the SCOAMF got elected! Get a 25′ online for 289.00 and Gadsden flags at Amazone .com fly under old glory and git ready to rumble, neighbors give you crap tell em to shut up and enjoy Obamacare while it lasts! Oh and pay their taxes like good little Rats do!

ConcealedKerry on June 28, 2012 at 5:04 PM

LukeinNE on June 28, 2012 at 5:02 PM | Delete

He could have gutted the Commerce Clause and still ruled ObamaCare unconstitutional.

People spinning this as some long term victory for conservatism are being too clever by half. It’s not the worst possible outcome, but it’s certainly not good.

BadgerHawk on June 28, 2012 at 5:05 PM

Now that I’ve calmed down and the shock has passed….I’m starting to agree with the commentators (Erick Ericson was the first I saw) that basically think Roberts delivered a trojan horse against the left with this ruling. Mind you, its a terrible risk (Obama must lose for it to work fully) but I think calling Roberts a statist stooge is a gross oversimplification at this point.

LukeinNE on June 28, 2012 at 5:02 PM

Do you wear the tin foil hat while you post?

ROberts couldn’t struck down the entire thing this morning and decided not to. Not only he rewrote the stupid thing to make it into some bogus tax to justify it!

You can’t spin this. Roberts is a disgrace and should be hated more than Maobama!!

LevinFan on June 28, 2012 at 5:05 PM

LukeinNE on June 28, 2012 at 5:02 PM

Gullibility is what helped get this country into the state it’s in – in the first place.

Dr Evil on June 28, 2012 at 5:06 PM

Why do you assume he’d replace like with like? He knows the base won’t stand for a lib, or another Harriet Myers.

changer1701 on June 28, 2012 at 4:44 PM

Past performance is an indicator of future results.

Steve Eggleston on June 28, 2012 at 5:06 PM

The latest ObamascareTAXaganda, this from a Harvard law prof via the fish-wrap NYT:

“This could be a huge day in the evolution of Chief Justice Roberts as a great chief justice”

Let’s see, his name was gonna be mud if the Court had ruled against the ObamascareTAX.

On the other hand, if “deeming” it a TAX turns out to get Obama and the Dooms booted from office ultimately resulting in the deep-sixing of the biggest tax increase evuh ObamascareTAX, how will they be skewering the Chief Justice a year from now?

stukinIL4now on June 28, 2012 at 5:07 PM

HondaV65 on June 28, 2012 at 5:02 PM

You’re almost as bad as steveangel!

LevinFan on June 28, 2012 at 5:07 PM

Sheer pathetic idiocy. ^^^

Bmore on June 28, 2012 at 5:03 PM

It’s exactly what you guys will do. You don’t care a wit about this nation and it’s problems – you only care about winning the football game on November 7th.

And then you’ll complain and cry like little babies when the liberals you elected (who transparently called themselves “conservative” and fooled you into voting for them) give you justices like kennedy and roberts!

LOL

HondaV65 on June 28, 2012 at 5:07 PM

I saw this and wondered if it is even remotely possible:

Posted by I. M. Citizen on June 28, 2012 Healthcare.

Jun 282012

Before you look to do harm to Chief Justice Roberts or his family, it’s important that you think carefully about the meaning – the true nature — of his ruling on Obama-care. The Left will shout that they won, that Obama-care was upheld and all the rest. Let them.

It will be a short-lived celebration.

Here’s what really occurred — payback. Yes, payback for Obama’s numerous, ill-advised and childish insults directed toward SCOTUS.

Chief Justice Roberts actually ruled the mandate, relative to the commerce clause, was unconstitutional. That’s how the Democrats got Obama-care going in the first place. This is critical. His ruling means Congress can’t compel American citizens to purchase anything. Ever. The notion is now officially and forever, unconstitutional. As it should be.

Next, he stated that, because Congress doesn’t have the ability to mandate, it must, to fund Obama-care, rely on its power to tax. Therefore, the mechanism that funds Obama-care is a tax. This is also critical. Recall back during the initial Obama-care battles, the Democrats called it a penalty, Republicans called it a tax. Democrats consistently soft sold it as a penalty. It went to vote as a penalty. Obama declared endlessly, that it was not a tax, it was a penalty. But when the Democrats argued in front of the Supreme Court, they said ‘hey, a penalty or a tax, either way’. So, Roberts gave them a tax. It is now the official law of the land — beyond word-play and silly shenanigans. Obama-care is funded by tax dollars. Democrats now must defend a tax increase to justify the Obama-care law.

Finally, he struck down as unconstitutional, the Obama-care idea that the federal government can bully states into complying by yanking their existing medicaid funding. Liberals, through Obama-care, basically said to the states — ‘comply with Obama-care or we will stop existing funding.’ Roberts ruled that is a no-no. If a state takes the money, fine, the Feds can tell the state how to run a program, but if the state refuses money, the federal government can’t penalize the state by yanking other funding. Therefore, a state can decline to participate in Obama-care without penalty. This is obviously a serious problem. Are we going to have 10, 12, 25 states not participating in “national” health-care? Suddenly, it’s not national, is it?

Ultimately, Roberts supported states rights by limiting the federal government’s coercive abilities. He ruled that the government can not force the people to purchase products or services under the commerce clause and he forced liberals to have to come clean and admit that Obama-care is funded by tax increases.

This might be true in a way..but people would still have rather seen a 5-4 the other way.

Terrye on June 28, 2012 at 5:07 PM

Really? The embodiment of all evil? An entity who’s only wish is for all human life to experience eternal torment in hell. You’d vote for that over Obama? Dude……

libfreeordie on June 28, 2012 at 4:55 PM

Well, their goals are the same. One of them has a cool pitchfork though.

Kataklysmic on June 28, 2012 at 5:07 PM

The explanation that makes sense to me is that Roberts lost his nerve and caved. He apparently does not agree with the Ginsburg opinion at all. He almost completely agrees with the dissent opinion.

Because he lacked the courage to follow through he rewrote the mandate penalty as a tax. Nowhere in the bill itself is it called a tax and Obamacare’s supporters continually and explicitly said it was not a tax.

I’m sure he sees himself as Solomon, but I think he is a judicial coward. If he thought the mandate penalty should have been legislated as a tax he should have sent it back to the Legislature to rewrite it as such and vote on it as such, in the face of public opinion.

Roberts legislated from the bench all by himself. One man rewrote Obamacare all by himself so he could let it stand. None of the other justices agreed with what he did, the Ginsburg gang did not agree with his reasoning but they liked the result, which is all they really cared about.

If Roberts is not a coward he is a fool.

farsighted on June 28, 2012 at 5:07 PM

And how the hell does the anti-injunction act not apply if this thing is a tax?

This whole thing is one giant W.T.F.

BadgerHawk on June 28, 2012 at 4:50 PM

There’s another tax issue that Scalia talked about in his dissent. He says it is unclear if this new tax is a “direct” tax or if it should be apportioned among the states. He says the law on this issue is very muddled, would be an issue of first impression in the SCOTUS, and was barely even mentioned in the Obamacare case because no one really took the tax argument seriously.

Looks like more lawsuits may be coming on this thing.

AZCoyote on June 28, 2012 at 5:08 PM

LOL

HondaV65 on June 28, 2012 at 5:07 PM

You have no idea what you are talking about. You have no standing.

Bmore on June 28, 2012 at 5:09 PM

You’re almost as bad as steveangel!

LevinFan on June 28, 2012 at 5:07 PM

If elected President – I’d nominate strictly conservative judges who are idealogues and they’d never give you a ruling like you got today.

But if I ran against Mittens – you’d vote for Mittens even though he’ll give you a Roberts every time he has a court vacancy!

So tell me again how you guys care for your precious cause of “conservatism” – you’re sheep – that’s all. John Boehner and David Brooks tell you to jump and you beg to know “how high”?!

HondaV65 on June 28, 2012 at 5:09 PM

Yes.

Having had time to digest all of this, here is what I think happened.

I think Roberts chickened out. I think there was a majority to kill the mandate, the medicaid extortion, and the entire law. But I think the vote for each of the above was 5-4. I think Roberts pooped his diaper and scared himself into creating the mess we have now because he was terrified of such a massive repudiation of Congress and the President with only 5-4 votes.

Roberts blinked and turned this entire ruling into a gibbering mess as a result.

NotCoach on June 28, 2012 at 3:45 PM

NotCoach on June 28, 2012 at 4:05 PM

I agree completely.

farsighted on June 28, 2012 at 5:11 PM

If Roberts was spooked before, he should REALLY be spooked now, after having betrayed a solid majority of the American people.

Steve Z on June 28, 2012 at 4:43 PM

What does he have to fear?

silvernana on June 28, 2012 at 5:13 PM

Just call him Chief Justice Benedict Roberts.

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

I may steal that.

farsighted on June 28, 2012 at 5:13 PM

Looks like more lawsuits may be coming on this thing.

AZCoyote on June 28, 2012 at 5:08 PM

Yes and Robert’s tipped his hand, and now we know how he will vote or rewrite what doesn’t work in ACA, to make it pass some esoteric smell test, he set his own precedent.

Dr Evil on June 28, 2012 at 5:14 PM

The dread pirate roberts:)

rubberneck on June 28, 2012 at 5:15 PM

Just call him Chief Justice Benedict Roberts.

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

I may steal that.

farsighted on June 28, 2012 at 5:13 PM

Judge Dread Roberts.

Dr Evil on June 28, 2012 at 5:15 PM

You have no idea what you are talking about. You have no standing.

Bmore on June 28, 2012 at 5:09 PM

OMG YOU REMOVED MY … MY … “STANDING”???

BWHAHAHAHAHAHAHA!

You so silly.

HondaV65 on June 28, 2012 at 5:15 PM

To me, and some of you will think I am crazy while others will
agree with me, I think the Obama’s Chicago thug cronies gave
Roberts “an offer he couldn’t refuse”.

Amjean on June 28, 2012 at 5:17 PM

Chief Justice Roberts Is A Genius
Posted on June 28, 2012

Before you look to do harm to Chief Justice Roberts or his family, it’s important that you think carefully about the meaning – the true nature — of his ruling on Obama-care. The Left will shout that they won, that Obama-care was upheld and all the rest. Let them.

It will be a short-lived celebration.

Here’s what really occurred — payback. Yes, payback for Obama’s numerous, ill-advised and childish insults directed toward SCOTUS.

Chief Justice Roberts actually ruled the mandate, relative to the commerce clause, was unconstitutional. That’s how the Democrats got Obama-care going in the first place. This is critical. His ruling means Congress can’t compel American citizens to purchase anything. Ever. The notion is now officially and forever, unconstitutional. As it should be.

Next, he stated that, because Congress doesn’t have the ability to mandate, it must, to fund Obama-care, rely on its power to tax. Therefore, the mechanism that funds Obama-care is a tax. This is also critical. Recall back during the initial Obama-care battles, the Democrats called it a penalty, Republicans called it a tax. Democrats consistently soft sold it as a penalty. It went to vote as a penalty. Obama declared endlessly, that it was not a tax, it was a penalty. But when the Democrats argued in front of the Supreme Court, they said ‘hey, a penalty or a tax, either way’. So, Roberts gave them a tax. It is now the official law of the land — beyond word-play and silly shenanigans. Obama-care is funded by tax dollars. Democrats now must defend a tax increase to justify the Obama-care law.

Finally, he struck down as unconstitutional, the Obama-care idea that the federal government can bully states into complying by yanking their existing medicaid funding. Liberals, through Obama-care, basically said to the states — ‘comply with Obama-care or we will stop existing funding.’ Roberts ruled that is a no-no. If a state takes the money, fine, the Feds can tell the state how to run a program, but if the state refuses money, the federal government can’t penalize the state by yanking other funding. Therefore, a state can decline to participate in Obama-care without penalty. This is obviously a serious problem. Are we going to have 10, 12, 25 states not participating in “national” health-care? Suddenly, it’s not national, is it?

Ultimately, Roberts supported states rights by limiting the federal government’s coercive abilities. He ruled that the government can not force the people to purchase products or services under the commerce clause and he forced liberals to have to come clean and admit that Obama-care is funded by tax increases.

Although he didn’t guarantee Romney a win, he certainly did more than his part and should be applauded.

And he did this without creating a civil war or having bricks thrown threw his windshield. Oh, and he’ll be home in time for dinner.

Brilliant.

FlatFoot on June 28, 2012 at 5:17 PM

What does he have to fear?

silvernana on June 28, 2012 at 5:13 PM

Nothing … he probably got a call from Boehner …

“Hey look – find a way to make this CONSTITUTIONAL – we like it and want to keep that mandate for when we’re in charge! Money’s money ya know!”

HondaV65 on June 28, 2012 at 5:18 PM

its done . time to move on.

gerrym51 on June 28, 2012 at 5:18 PM

What does he have to fear?

silvernana on June 28, 2012 at 5:13 PM

Exactly…. while I would have loved to see the whole thing voted out, I am going to withhold judgement on Roberts and wait to see how this mess plays out.

Koa on June 28, 2012 at 5:19 PM

If Roberts was spooked before, he should REALLY be spooked now, after having betrayed a solid majority of the American people.

Steve Z on June 28, 2012 at 4:43 PM

What does he have to fear?

silvernana on June 28, 2012 at 5:13 PM

Impeachment.

Roberts may not believe in separation of powers (rewriting legislation) but that doesn’t mean everyone else doesn’t.

Dr Evil on June 28, 2012 at 5:19 PM

Scalia should resign. His naked partisanship and politicking sickened Roberts to such an extent, he felt obliged to show his independence. Once again, stupid conservatism backfires.

Nice. Can’t wait for Romney November concession speech.

bifidis on June 28, 2012 at 5:19 PM

Veterans must pay the “tax” and get a health policy, even though they have VA medical benefits. Just heard from my brother in law who is a VA benefit administrator. Every single Vet will have to pay.

Wow. Unbelievable.

Key West Reader on June 28, 2012 at 5:07 PM

Well this is unacceptable.

Vince on June 28, 2012 at 5:19 PM

The contraceptive mandate is more rooted in prior judicial rulings (EEOC Rulings & Federal Courts), however, and it has survived several legal challenges. It actually predates the ACA and Obama. I think that outside of employers who are all of the same faith (who aren’t impacted anyway), this too will stand.

lexhamfox on June 28, 2012 at 4:50 PM

No, the contraceptive mandate’s enabling statute was ACA. And there is the Religious Freedom Restoration Act passed in the 1990s with which to deal. Different religions can raise different challenges to legislation offensive to their beliefs.

The uananimous Hosanna-Tabor decision this term was a slap-down of the idea that all employers, including reliigous, are basically the same. I think Hosanna was the administration’s dry run for the contraceptive mandate, and it lost unanimously.

Wethal on June 28, 2012 at 5:19 PM

If elected President – I’d nominate strictly conservative judges who are idealogues and they’d never give you a ruling like you got today.

But if I ran against Mittens – you’d vote for Mittens even though he’ll give you a Roberts every time he has a court vacancy!

So tell me again how you guys care for your precious cause of “conservatism” – you’re sheep – that’s all. John Boehner and David Brooks tell you to jump and you beg to know “how high”?!

HondaV65 on June 28, 2012 at 5:09 PM

Listen:

I supported Palin then Cain then Bachmann then santorum. I did everything I could to STOP Romney.

The primary is over, wake up!! I tried to get the best conservative, but I have enough common sense to realize that a moderate like Mittens is still a million times better then a marxist in maobama!!

I’m of the Levin, Beck, Rush, and Palin mold.

You are of the Paulbot lunacy mold.

You can have the Congress do all the repeal votes they want but it won’t matter unless you have Romney to actually sign it.

LevinFan on June 28, 2012 at 5:19 PM

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