an interesting take...

[Cancel 2016.2]

http://www.theatlantic.com/national/archive/2012/06/is-john-roberts-outfoxing-us-all/259121/

My boss forwarded this to me...

I don't want to fan the ditzie flames... but this article was certainly worth a read.

Earlier today, the Supreme Court, by a narrowly divided vote, upheld the individual mandate, a key component of President Obama's signature piece of legislation, the Patient Protection and Affordable Care Act. Obama supporters are letting out a collective sigh of relief, as most observers expected the mandate -- and possibly the entire Act -- to fall after the oral argument. Conservatives are conversely upset that Chief Justice Roberts -- the deciding vote in the case -- snatched defeat for conservatives from the jaws of victory, given that there were four votes to strike down the Act in its entirety.

Although the decision is certainly a win for Obama and Democrats, it's by no means a clear-cut victory. And while the Chief Justice is taking a lot of heat from the right, the way he handled the case might actually turn out to be a brilliant strategic move -- one that could very well define his judicial career, and could actually be the optimal outcome for Republicans.

To explain -- and I promise this historical detour will be worth it -- we should note unexpected parallels to Marbury v. Madison, the 1803 case in which the Supreme Court, in an opinion by Chief Justice Marshall, established that it had the power of judicial review: i.e. to declare federal laws unconstitutional. The very simplified background is this: The petitioner, William Marbury, had been nominated as a justice of the peace by President John Adams at the very end of Adams's term, right before Thomas Jefferson took office. The Senate confirmed the nomination.

Unfortunately for Marbury, he never got his hands on his commission. Marbury's nominations had been part of a large slew of judicial nominations pursuant to the Judiciary Act of 1801 -- a statute passed by the Federalists after the 1800 election as a last minute attempt to stack the bench with Federalist judges before Jefferson and his party took office. Once Jefferson was sworn in, his secretary of state, James Madison, refused to deliver the undelivered commissions and the new Congress got to work repealing the Judiciary Act of 1802.

the remainder is at the link...

 

[Damocles]

It also, being a tax, makes it so the 60 vote limit doesn't count. It will now take only 51 votes in the Senate to repeal the bill... no worries on the filibuster thing.

Here's another article along the same lines.

http://whitehouse12.com/2012/06/28/chief-justice-roberts-is-a-genius/

It doesn't mention the 51 votes thing, but it mentions some interesting things. It took away government power to require the states to participate. How many states do you think will simply not participate now that he cannot pull funding from Medicaid as a penalty to the State?

I'm wondering if the ruling will have ramifications on laws like refusal to give funding to states for highways if they don't pass DUI limits they want... It is now unconstitutional to yank the funding of one thing to force states to comply with another...

 

[Damocles]

The more I read this thing, the more I'm intrigued. It takes a whole bunch of power away from the Federal government...

They can't claim Commerce Clause to force people to buy stuff. They can't force states to do something by threatening funding from another program. It makes it so that it will not be filibustered and if republicans hold a majority it can be repealed much easier.

Did he come up with this himself? I'm stunned...

 

[Bonestorm]

The more I read this thing, the more I'm intrigued. It takes a whole bunch of power away from the Federal government...

They can't claim Commerce Clause to force people to buy stuff. They can't force states to do something by threatening funding from another program. It makes it so that it will not be filibustered and if republicans hold a majority it can be repealed much easier.

Did he come up with this himself? I'm stunned...

I like Dixie's knee-jerk version better than the "considered" version. Obama won. Deal with it. This silver lining searching is cute, but let's not pretend the decision did things that it didn't do.

The opinion doesn't take squat away from anyone. The commerce clause stands on the same footing it stood on before this decision. All that was clarified is that Congress can't force you to buy something, which isn't really a big deal since this was, like, the third time Congress has done that in 200+ years. And the state funding stuff is somewhat surprising, but I'm willing to bet that its application is quite limited on a going forward basis.

Oh, and the whole thing about the mandate being repealed by reconciliation -- this decision doesn't change anything about that.

 

[anatta]

I like Dixie's knee-jerk version better than the "considered" version. Obama won. Deal with it. This silver lining searching is cute, but let's not pretend the decision did things that it didn't do.

The opinion doesn't take squat away from anyone. The commerce clause stands on the same footing it stood on before this decision. All that was clarified is that Congress can't force you to buy something, which isn't really a big deal since this was, like, the third time Congress has done that in 200+ years. And the state funding stuff is somewhat surprising, but I'm willing to bet that its application is quite limited on a going forward basis.

Oh, and the whole thing about the mandate being repealed by reconciliation -- this decision doesn't change anything about that.

did some research on the reconcilliation - apparently since it passed, and since Roberts decided it was a tax, the proceedure on HOW it was passed is indeed moot.

You were right about that - i was wrong. point 1.
Re: Commerce Clause- are you familiar with Gonzalez v Raich? that still stands, Obama's war on medical marijuana still stands, but it IS a significant clipping of fed'l powers to reach into state law. (federalism) -yes it does limit going forward *happy dance*

I don't know if you follow the historical expansion of the Commerce Clause - but it wqa being stretched to he point on unlimited useage.
It was more then about "forcing to buy", but you have to be familiar with Wikard v Filburn, and Gonzalez v Raich - which used the commerce clause to reach into state law. They stand, but no more hyperextension, this is the first time in 200 years the Commerce Clause was disallowed to expand.
Making this a tax, AND curbing the Commere Clause should please everyone - federalist like myself, who despise the use of the Commerce Clause to expand UNENEMERATED POWERS / that's GONE! *happy dance*

We're using enumerated powers to tax instead - this brings fed'l powers back in line with the 10th. It's a constitutional victory for everyone, if you look at it this way/

 

[Cancel 2016.2]

I like Dixie's knee-jerk version better than the "considered" version. Obama won. Deal with it. This silver lining searching is cute, but let's not pretend the decision did things that it didn't do.

The opinion doesn't take squat away from anyone. The commerce clause stands on the same footing it stood on before this decision. All that was clarified is that Congress can't force you to buy something, which isn't really a big deal since this was, like, the third time Congress has done that in 200+ years. And the state funding stuff is somewhat surprising, but I'm willing to bet that its application is quite limited on a going forward basis.

Oh, and the whole thing about the mandate being repealed by reconciliation -- this decision doesn't change anything about that.

Riiiiight... and the ACA will reduce the deficit spending.

 

[Onceler]

I lost count of the # of morose-looking conservatives on cable shows last night who said something to the effect of, "Long-term, this is a big victory for conservatives."

 

[Cancel 2016.11]

I lost count of the # of morose-looking conservatives on cable shows last night who said something to the effect of, "Long-term, this is a big victory for conservatives."

I really enjoyed the teabaggers who were on film watching the breaking news on their tablets and they went nuts when FOX reported (I assume FOX, doubt they were watching CNN) that the mandate had been overturned...and then a moment later it all got very quiet.

To think that something that has no calories, can't get you arrested for a DWI, or give you an STD could feel so delicious.

 

[Bonestorm]

did some research on the reconcilliation - apparently since it passed, and since Roberts decided it was a tax, the proceedure on HOW it was passed is indeed moot.

You were right about that - i was wrong. point 1.
Re: Commerce Clause- are you familiar with Gonzalez v Raich? that still stands, Obama's war on medical marijuana still stands, but it IS a significant clipping of fed'l powers to reach into state law. (federalism) -yes it does limit going forward *happy dance*

I don't know if you follow the historical expansion of the Commerce Clause - but it wqa being stretched to he point on unlimited useage.
It was more then about "forcing to buy", but you have to be familiar with Wikard v Filburn, and Gonzalez v Raich - which used the commerce clause to reach into state law. They stand, but no more hyperextension, this is the first time in 200 years the Commerce Clause was disallowed to expand.
Making this a tax, AND curbing the Commere Clause should please everyone - federalist like myself, who despise the use of the Commerce Clause to expand UNENEMERATED POWERS / that's GONE! *happy dance*

We're using enumerated powers to tax instead - this brings fed'l powers back in line with the 10th. It's a constitutional victory for everyone, if you look at it this way/

Rather than getting into a pissing match about the law, let's just all agree that future supreme court appointments will decide the scope of the commerce clause much much more than this decision will.

 

[anatta]

Rather than getting into a pissing match about the law, let's just all agree that future supreme court appointments will decide the scope of the commerce clause much much more than this decision will.

sure. i'm all pissed out.
Can't agree though, this is the first time EVER the Commerce Clause power was not allowed to expand.

Read more: http://www.post-gazette.com/stories...principles-were-applied-642477/#ixzz1zBqdLWnw
The case challenged the court to fashion a judicially administrable principle that limits Congress' power to act on the mere pretense of regulating interstate commerce. At least Chief Justice Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance:

"The power to regulate commerce presupposes the existence of commercial activity to be regulated. ... The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. 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. ... Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and -- under the government's theory -- empower Congress to make those decisions for him."

If the mandate had been upheld under the Commerce Clause, the court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power -- the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration's Commerce Clause doctrine. The court remains clearly committed to this previous holding: "Under our written Constitution ... the limitation of congressional authority is not solely a matter of legislative grace."(more)

 

[Onceler]

I really enjoyed the teabaggers who were on film watching the breaking news on their tablets and they went nuts when FOX reported (I assume FOX, doubt they were watching CNN) that the mandate had been overturned...and then a moment later it all got very quiet.

To think that something that has no calories, can't get you arrested for a DWI, or give you an STD could feel so delicious.

Oh, man - just the "Et tu, John Roberts" reaction alone is about as enjoyable as anything I've seen in the political arena in years. And they thought he was "theirs"....

 

[cawacko]

Probably the wrong question to ask on a political board but am I the only one who watched the NBA draft and no cable news?

 

[Cancel 2018. 3]

The more I read this thing, the more I'm intrigued. It takes a whole bunch of power away from the Federal government...

They can't claim Commerce Clause to force people to buy stuff. They can't force states to do something by threatening funding from another program. It makes it so that it will not be filibustered and if republicans hold a majority it can be repealed much easier.

Did he come up with this himself? I'm stunned...

imo...it grants the government nearly unlimited power. justifying the law and in fact rewriting the law to call it a tax and using the tax power to uphold it, grants the government more power than had they used the CC to uphold it. a few months ago i made arguments on why i thought the law would be struck down under the CC clause and roberts wrote virtually the same thing i argued. the tax power, as used here, is virtually, if not completely, unlimited.

the government can now demand you purchase anything, but "allow" you to not purchase it, if you pay a tax.

 

[Cancel 2018. 3]

Rather than getting into a pissing match about the law, let's just all agree that future supreme court appointments will decide the scope of the commerce clause much much more than this decision will.

that may be, but this decision was yet another, in what is becoming a string of cases, that limited the CC again.

 

[Onceler]

Probably the wrong question to ask on a political board but am I the only one who watched the NBA draft and no cable news?

I was back & forth. The draft was a little boring, though (except for my fave player Dion Waiters jumping to #4)....

 

[Cancel 2016.2]

Probably the wrong question to ask on a political board but am I the only one who watched the NBA draft and no cable news?

No, I did the same... had to see where the Marquette guys would go. Jae Crowder to Dallas, DJO to the Lakers.

 

[Cancel 2018. 3]

I like Dixie's knee-jerk version better than the "considered" version. Obama won. Deal with it. This silver lining searching is cute, but let's not pretend the decision did things that it didn't do.

The opinion doesn't take squat away from anyone. The commerce clause stands on the same footing it stood on before this decision. All that was clarified is that Congress can't force you to buy something, which isn't really a big deal since this was, like, the third time Congress has done that in 200+ years. And the state funding stuff is somewhat surprising, but I'm willing to bet that its application is quite limited on a going forward basis.

Oh, and the whole thing about the mandate being repealed by reconciliation -- this decision doesn't change anything about that.

iirc....you argued against me on the CC and you argued it would be upheld under the CC. this decision IS a big deal for CC and it doesn't stand on the same footing as before.

 

[Bonestorm]

sure. i'm all pissed out.
Can't agree though, this is the first time EVER the Commerce Clause power was not allowed to expand.

Read more: http://www.post-gazette.com/stories...principles-were-applied-642477/#ixzz1zBqdLWnw
The case challenged the court to fashion a judicially administrable principle that limits Congress' power to act on the mere pretense of regulating interstate commerce. At least Chief Justice Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance:

"The power to regulate commerce presupposes the existence of commercial activity to be regulated. ... The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. 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. ... Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and -- under the government's theory -- empower Congress to make those decisions for him."

If the mandate had been upheld under the Commerce Clause, the court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power -- the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration's Commerce Clause doctrine. The court remains clearly committed to this previous holding: "Under our written Constitution ... the limitation of congressional authority is not solely a matter of legislative grace."(more)

But it isn't. Morrison and Lopez both limited the scope of the Commerce Clause in the 90s.

 

[Bonestorm]

iirc....you argued against me on the CC and you argued it would be upheld under the CC. this decision IS a big deal for CC and it doesn't stand on the same footing as before.

In practical terms, it isn't really a big deal at all. After this decision, Congress can't force you to buy stuff. The mandate is the first time in about 200 years that Congress has tried that so I don't really see the issue coming up again any time soon.

 

[anatta]

imo...it grants the government nearly unlimited power. justifying the law and in fact rewriting the law to call it a tax and using the tax power to uphold it, grants the government more power than had they used the CC to uphold it. a few months ago i made arguments on why i thought the law would be struck down under the CC clause and roberts wrote virtually the same thing i argued. the tax power, as used here, is virtually, if not completely, unlimited.

the government can now demand you purchase anything, but "allow" you to not purchase it, if you pay a tax.

Ya but . who's gonna support new taxes?
Not many, this one had to be back doored in , because the Dems PURPOSELY avoided using enumerated powers to tax.

The Commerce Clause was a sneaky way to expand Fed'l power - unless one was familiar with it's history ( federalism), i doubt most Americans even KNEW how it's changed federalism ( Marblecake/Dual/Co-operative/ and the infamous "new federalism") which consistently blurred the lines of co-sovereignity.

So no more sneaky expansionism - that's a win/win for ALL. If the Fed's wanna expand, they can no longer rely on a passive Court to do so.
Now they have to declare a tax -at least on thecommercial aspectof the Commerce Clause. It's usage is stil pernicious, but it finally got "clipped"