The chief justice’s canny move to uphold the Affordable Care Act while gutting the Commerce Clause.

[kpete]

Obama Wins the Battle, Roberts Wins the War
The chief justice’s canny move to uphold the Affordable Care Act while gutting the Commerce Clause.
By Tom Scocca|Posted Thursday, June 28, 2012, at 11:59 AM ET

............

.........By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well). Here's the Chief Justice's opinion (italics in original):

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

The business about "new and potentially vast" authority is a fig leaf. This is a substantial rollback of Congress' regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts' nomination, saying he did not trust his political philosophy on tough questions such as "whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce." Today, Roberts did what Obama predicted he would do.

Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress' power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.


MORE:
http://www.slate.com/articles/news_and_politics/scocca/2012/06/roberts_health_care_opinion_commerce_clause_the_real_reason_the_chief_justice_upheld_obamacare_.html




This is a VERY informative link as well:

THU JUN 28, 2012 AT 11:15 AM PDT
A dark cloud on this sunny day: Roberts Court embraces Constitution in Exile
byArmandoFollowforDaily


In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples’ representatives in both the States and the Federal Government. [...]THE CHIEF JUSTICE’s Commerce Clause opinion [...] bear[s] a disquieting resemblance to those long-overruled decisions. Ultimately, the Court upholds the individual mandate as a proper exercise of Congress’ power to tax and spend“ for the . . . general Welfare of the United States.” ... I concur in that determination, which makes THE CHIEF JUSTICE’s Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion. 12 (Emphasis supplied.) —Justice Ruth Bader Ginsburg


http://www.dailykos.com/story/2012/06/28/1103937/-A-dark-cloud-on-this-sunny-day-Roberts-Court-embraces-Constitution-in-Exile#comments

[xchrom]

1. Du rec. Nt

[msongs]

2. so romneycare is upheld and you throw cold water on the massive celebration lol nt

[kpete]

3. just like to keep my eyes open...

but trust me
i have popcorn

peace, kpete

[COLGATE4]

4. You're absolutely right, and we may well

have reason to regret this decision in the future. Roberts is nothing if not canny, and he avoided a political firestorm while at the same time laying a land mine for any future progressive pieces of legislation which depend on their authority from the Commerce Clause. He gave up a Pawn in exchange for a future Bishop or Queen.

[bemildred]

5. That is a bizarre argument. nt

[mzmolly]

6. Indeed.

[DevonRex]

7. Rachel just asked both her guests about this.

It was one of my worries, especially when reading Roberts' majority opinion and going over the very pointed questions Kennedy had asked of the government regarding the CC.

However, one would think that Scalia would have been ecstatic had that been the intent of this ruling, given his um background. 'Nuff said.

[sad sally]

8. Keep thinking about that saying, “If it walks like a duck, quacks like a duck, looks like a duck, it

must be a duck."

Perhaps my brain isn't firing on all cyclinders, but Roberts decision that said the Anti-Injunction Act didn't apply to the penalty part of the mandate, and that while the mandate was not a tax for purposes of the AIA, it was a valid tax under the Constitution, seemed to say it doesn't walk like a tax, it doesn't talk like a tax, the AIA doesn't apply, but still it's a tax.

Will this non-duck/tax/penalty become another evil tax hammer for Repubs this election?

[Uncle Joe]

11. Not duck, this is a goose.

Roberts is a corporate supremacist plain and simple, so the challenge to him was how could he reward his corporate clients/masters by giving it the goose that lays the golden eggs without calling it a goose... the answer was just to call it a duck.

[RainDog]

9. good links n/t

[stevenleser]

10. My question is, can appellate lawyers refer to that in arguing cases in the future?

If congress passes a law that relies on the commerce clause in the future and a court ruling is appealed to a federal district court, would an attorney's argument have any weight if it relied on Roberts' wording in this ruling?

I do not know nearly enough about our legal system to know the answer to that question. I suppose any attorney can make any argument they want, the question is, does the way the ruling is phrased in this situation affect appellate law decisions or is it just an indication of how Roberts himself will vote if he has to rule on future cases.