Monthly Archives: June 2012

No, Conservatives Did Not “Win” Anything In The ObamaCare Decision

Once the initial shock of Chief Justice John Roberts’ decision to uphold the Patient Protection and Affordable Care Act (ObamaCare) began to wear off, many conservatives and non-conservatives began to spin the decision as victory for conservatives.

Allah has a good round up of this “the operation was a success but the patient died” line of thinking.

Let me take a couple of examples.

Writing in Slate, Tom Scocca makes the unsupported assertion that Roberts and the dissenters “gutted” the Commerce Clause.

Roberts was smarter than that. 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).

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.

All I can say to that is, if only!

Sadly, this “gutting” and “substantial rollback” is only in the minds of people who don’t seem to notice not a single Commerce Clause case was overturned yesterday. Wickard v. Filburn and its progeny still live.

What the Court said yesterday was the Commerce Clause may not be stretch beyond any limit at all and that Congress’ novel attempt to create commerce in order to regulate is may not stand. Keep in mind this was not a power anyone thought the Congress had since it’s not something that had been tried before in the entire history of the United States.

Calling this a “victory” or “a gutting” is like saying someone who was mugged “won” because they were only beaten to a bloody pulp instead of killed. Well, OK but in the real world the proper outcome is not to be assaulted at all. That’s the true victory.

Of course this also ignores two minor details, the mandate stands and now Congress may impose a penalty, er tax, on economic inactivity, something no one thought they could do before yesterday. Do you really think there aren’t liberal policy gnomes in Congress, think tanks and universities already hard at work coming up with new and exciting ways to make mischief with the tool Roberts just handed them? If you don’t, you’ve missed the last 80 or so years of the Democratic (and sadly, all too often the Republican) party’s history.

George Will makes a similar argument but from a conservative point of view.

By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”

Pardon me if I’m not impressed.

We’ve been down this “the court is reining in the Commerce Clause!” road before. The last time the Court tried to place limitations on the use of the Commerce Clause were in the Lopez and Morrison cases. Sadly this laudatory trend was killed in the cradle by the noxious Raich decision (authored by conservative hero Antonin Scalia of all people).

Why would anyone think that this ObamaCare decision (which dealt with a unprecedented assertion of congressional power) will have a more lasting impact that Lopez and Morrison (which dealt with more mundane exercises of Commerce Clause authority)?

It’s far more likely that future Courts and Congresses will simply look at the rejection of this unique theory as a one-time occurrence (which Roberts provided a work around to anyway via the Taxing Power).

The bottom line is that no other law or Congressional theory of Commerce Clause power was impacted by yesterday’s decision. Congress still can make as much mischief as they had from the New Deal.

Same Trende agrees that Roberts handed conservatives an important victory while preventing a showdown with the President over the Court’s legitimacy.  He analogizes yesterday’s decision to the seminal case on judicial review, Marbury v. Madison.

One of those who was to receive a commission, William Marbury, filed a petition directly in the Supreme Court under a provision of the Judiciary Act of 1789. He requested a writ ordering the secretary of state to deliver his commission.

But Chief Justice John Marshall was a staunch Federalist. The republic was young, the court’s legitimacy fragile, and the ability of the nation to endure the peaceful transfer of power between parties uncertain. It was also unclear how Marshall’s ordering the newly installed Jeffersonian Republican secretary of state to do something would go over.

So the chief justice did something very clever. He found that Marbury was entitled to his commission, bestowing legitimacy on those Midnight Judges who had received theirs. But he didn’t stop there — to Marbury’s detriment. He then ruled that the Constitution only gave the court so-called “original jurisdiction” over a small number of cases. The provision of the Judiciary Act of 1789 bestowing the court with original jurisdiction over writs of the type Marbury sought was therefore unconstitutional.

But I think if you scratch the surface here, Roberts embarked upon a gambit much like Marshall did 200 years ago. For the results-oriented — which is to say, most observers on both sides who have been ranting about the Constitution for the past few months — this is a clear win for the Obama administration, at least in the short term. By removing most legal impediments to the implementation of the law, the odds that the president’s signature legislation will eventually be implemented have risen.

The loss is especially galling for conservatives because they were extremely close to having the whole thing struck down in its entirety, immediately. That’s what Justices Scalia, Kennedy, Thomas and Alito would have done, and there’s some pretty good evidence that Scalia’s dissent was the majority opinion until fairly late in the day.

But Roberts is only a few years further into his chief justice-ship than Marshall was at the time of the Marbury decision. His tenure is likely to be equally as lengthy, if not more so. I think the forest for him is quite a bit different than the trees that people are focusing on.

Comparing the ACA to Marbury strikes me as a bridge too far.

First of all, this isn’t 1803 (less than 20 years into the republic) nor is the idea of judicial review a novel new theory being tried out for the first time. The Supreme Court has a long history of decisions and it’s role in the American political system, while often controversial and divisive, is well established.

On a practical level Marshall gave up something small, original jurisdiction over Writs of Mandamus, in exchange for something huge…the power of judicial review. Roberts traded an outer marker on the Commerce Clause that no one had ever considered reaching until two years ago for…well, nothing. The statute stands. He even threw in “a player to be named later” with his unique idea that Congress may tax economic inactivity.

What did Roberts get? Institutional respect for the Court from people who have no respect for the Courts unless they win? That’s not a prize one can count on to last long. If you think liberals we say, “we’ll let it slide next time we lose a 5-4 decision and promise to never again push the boundaries of the Commerce Clause because Roberts gave us ObamaCare” you’ve missed the last 80 or 90 years of liberalism and the courts.  Maybe I missed something but the New Deal and Warren courts* were happy to overturn decades and decades of law and never felt the need to “throw a bone” to conservatives (or people who thought the words of the Constitution had some set meanings).

In fact, Roberts has actually lost something very important (if this theory is right)…he’s shown that with enough bullying and threats against the legitimacy of his Court, he’ll give in.

The only people who ever insist a loss is actually a win are people who just lost. We need to fact that there is no pony underneath all of this, there’s simply a giant pile of manure.



*That’s not to say all the contentious decisions of those courts were wrong (Brown v. Board of Ed comes to mind as a precedent busting case that was most certainly correctly decided) just that the liberal forefathers of the people Roberts supposedly wants to keep the respect of, never showed that respect to others.


The Breathtaking Lawlessness Of Chief Justice Roberts’ ObamaCare Decision

This is from the ObamaCare SCOTUS syllabus (pdf) which technically isn’t part of the opinion but a summation of the holdings that the justices approve before it’s included in decision.

1. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit.  The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11–

3. CHIEF JUSTICE ROBERTS concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.
The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power.It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155
U. S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285
U. S. 22, 62. Pp. 31–32.

Got that? In Part II of the decision, it’s not a tax so the case can go forward but by Part II, it’s magically OK under the taxing power.

I guess the Taxing Power is so awesome it empowers things that aren’t taxes.

There May Well Be Good Arguments In Favor Of Same Sex Marriage But David Blankenhorn Doesn’t Get Around To Making Them

Apparently David Blankenhorn is (now was) a big deal in the anti-same sex marriage movement so his defection to supporting  it has garnered quite a bit of attention. Sadly, the reasons he gives for his dramatic change of mind are flimsy at best.

Let me run through them one at a time.

For me, the most important is the equal dignity of homosexual love. I don’t believe that opposite-sex and same-sex relationships are the same, but I do believe, with growing numbers of Americans, that the time for denigrating or stigmatizing same-sex relationships is over. Whatever one’s definition of marriage, legally recognizing gay and lesbian couples and their children is a victory for basic fairness.

This is probably the strongest of his reasons but it’s not quite consistent, is it? If traditional marriages aren’t the same as same-sex relationships why should they be treated the same by society in its laws? The law isn’t a giant self-esteem project, Oprah writ large, it’s how society as a whole codifies it’s values. Not treating things that aren’t the same differently doesn’t “denigrate” or stigmatize one or the other, it’s simply a reflection of values. Sparing some people from having their feelings hurt isn’t a reason to alter a fundamental institution.

Another good thing is comity. Surely we must live together with some degree of mutual acceptance, even if doing so involves compromise. Sticking to one’s position no matter what can be a virtue. But bending the knee a bit, in the name of comity, is not always the same as weakness. As I look at what our society needs most today, I have no stomach for what we often too glibly call “culture wars.” Especially on this issue, I’m more interested in conciliation than in further fighting.

This is bizarre on its face. Where has the all important “comity” been from the side seeking to change marriage? Where is their respect or compromise for those who only wish to defend what has existed for thousands upon thousands of years? People who simply point out that there may be long term consequences we haven’t considered in over turning the meaning of marriage have been derided as bigots and haters (or H8ters as the kids like to say. More about them in a minute).

Liberals love to condemn conservatives for waging a unending “culture war”. But every war has an aggressor and it’s hard to claim the people defending the traditional definition of marriage as anything but the attacked party in this particular war.

What Blankenhorn is calling for his isn’t “comity” it’s graceful surrender. I’m not sure why many of his former compatriots will join him, especially since they annoyingly keep gaining the support of a majority of voters when the matter is put to a vote.

Ah yes, those pesky voters, Blankenhorn doesn’t think they matter. No he identifies the groups we must heed.

A third good thing is respect for an emerging consensus. The population as a whole remains deeply divided, but most of our national elites, as well as most younger Americans, favor gay marriage. This emerging consensus may be wrong on the merits. But surely it matters.

I’m sure it’s possible to find two groups less worth of respect than “our national elites” and “younger Americans” but you’d be hard pressed to. Who these elites are is never made clear but Blankenhorn insists they know better than all those voters across the country. As for “young Americans”, they do overwhelmingly support same sex marriage now and that may be enough to carry the day in the future but why don’t we let these youngsters grow up a bit, experience the world and perhaps have a family of their own before we take their opinion as the gold standard for society. The reality is, same-sex marriage is a relatively new idea in the history of humanity. Perhaps the accumulated knowledge and experience of countless generations deserves a little more respect. Perhaps this generation of “young Americans” is the wisest generation ever or perhaps they are young and their passions and priorities will change.

For what it’s worth, I’m deeply opposed to same-sex marriage being imposed by courts. I’m more indifferent to it if passed legislatively. I don’t see any real benefits from it but given the debasement of marriage in this country, I don’t see any real harm. As a conservative (not a social conservative) I’m simply temperamentally opposed to doing something, when doing nothing carries no penalty.

Politispin Is At It Again


The Unraveling Of The “Reality Based Community” Continues Apace

Over at Greg “He’ll Print Anything Media Matters Sends Him” Sargent’s blog once of his co-bloggers wrote a post entitled “Don’t give in to the jobs report blues“. I retweeted his link to it with the snark, “Libs: Let a smile be your umbrella”.

Judging by Greg’s response, it just might have hit a nerve.

It’s customary to conceal your excitement about bad news for the country and continued economic misery for fellow Americans

So now pointing out that liberals are lamely trying to cheer themselves up in the face of the disaster they have created is being excited about that disaster? Ok Greg.

Maybe Media Matters can get him some better talking points soon. I think anyone who looked at today’s news and wrote that maybe, just maybe there’s a possible “silver lining” and this month is just “a statistical anomaly” deserves to be mocked. Also, unlike Greg’s co-blogger, I don’t think the big take away items from today’s jobs report is “at least there’s nothing here to change the entire trajectory of the campaign.” against Obama. Well thank God for that, right?

Normally I wouldn’t bother posting about a Twitter pissing match but I think it shows you how desperate the Democrats are. They can’t talk about their policies so they’ll just ignore the damage they’ve created.

Sure Obama is losing Bill Clinton but he’ll always have Greg Sargent.

Obama is quickly getting down to his hardcore dead-enders. It’s not going to be pretty.