Justice Roberts turns

Justice Roberts turns
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There has been much gossip and speculation written over the last 48 hours about Chief Justice John Roberts’ unexpected decision to cast the tie-breaking 5-4 vote to uphold the constitutionality of President Obama’s Affordable Care Act. In these polarized times, for such a reliably conservative judge to act in such an ideologically unorthodox manner almost certainly has to imply something weird or conspiratorial was afoot; the deep textual analysis has been particularly entertaining.

In any case, in casting the deciding vote and approving the opinion of the court’s liberal wing, Roberts held that the iconic core of “Obamacare” — the federal mandate decreeing that every American must either own health insurance or suffer a fine — was a lawful exercise of the federal government’s taxation powers. Under the Constitution’s so-called commerce clause, the U.S. Congress holds virtually unlimited powers to dream up new and exotic taxes, and, despite the White House’s instance to the contrary, that’s basically all the new “fine” on uninsured Americans was, in Roberts’ mind.

Congress holds no authority to simply demand people buy things and financially reprimand them if they disobey, wrote the Chief Justice; that would be “a new and potentially vast domain” of government authority over the lives of individuals. The feds do, however, have the authority to social engineer public spending habits indirectly through punitive taxes. Taxes on cigarettes are very high, the Chief Justice noted, simply because the government believes this added expense will make people less likely to buy them. A tax on uninsured Americans is basically the same principle, aside from the fact that you avoid this hit to your wallet by purchasing.

In this sense, I think Roberts made the right decision, and a very conservative decision at that.

These days we have an unfortunate tenancy to believe every law passed by the legislature exists on a rigid dichotomy of either being entirely good, or entirely unconstitutional, with the vast middle ground of “bad, but legal” being largely ignored. I do think Obamacare went about fixing America’s health care woes in all the wrong ways — like Canada, I think the United States would be best suited to  embrace some manner of two-tier system, where public and privately-run health care providers and insurance companies can exist and compete in a shared marketplace  — but I also don’t think the immediate cries that the legislation was unconstitutional were provoked by any legal principle higher than sour grapes from the losing side. While the Constitution may guarantee a right to protection from tyranny, there exists no inalienable right to protection from big-government busy-bodying. Simply describing the latter as the former does not make it legally so.

Most laws — and almost all fines and taxes — do restrict personal freedom in some way, but we also live in a system where the creation of taxes, fines, and laws are legitimate power of our democratically-constructed governments. Tea Party rhetoric aside, anyone who defines the concept of individual liberty so broadly as to be at odds with taxation or social policy itself is bound to be disappointed by the American Constitution, considering the clear prominence of phrases like “Congress shall have Power To lay and collect Taxes” and “general welfare of the United States” within it. The document may very well be a charter of freedom, but it is also a charter of government. Roberts’ ruling was a firm reminder that bad policy is very much an inevitable byproduct of constitutional government, not something it exists to protect us from.

The silver lining, of course, is that constitutional policy is not automatically permanent or inalterable policy — another lazy conclusion that has become far too mainstream. Though we all love to denounce the activist judiciary for “legislating from the bench” and so forth, overtly legislative, impenetrable Roe v. Wade-type rulings from the Supreme Court are actually quite rare; far more often the high court simply confirms the validity or invalidity of legislation on the broadest of grounds, leaving considerable room for revision around the edges. As a positive finding, the Obamacare ruling is the most generous version of this — no fundamental rights were found to be stake, so the act simply sits in the enormous pile of constitutionally allowable law that can be easily be revised or discarded according to political whim.

The ball is firmly in the politicians’ court, in other words, and the onus is now on the Republican Party and Mitt Romney to win a democratic mandate for the repeal of Obamacare — a gesture that would be every bit as fair and constitutional as its original passage.

In ruling the way he did, Roberts not only helped break down the myth (often spouted by yours truly) that the Supreme Court is this rigidly political institution of predetermined conclusions dictated by partisan interest, but also reminded that the Constitution is a complex document that demands an equally complex loyalty. In short, he demonstrated that being a good conservative — in the sense of defending the fundamental legitimacy of the legal process and the American system of constitutional government —is not always the same as being a good Republican, and that being a being a man of principle can sometimes be a radical stance in an increasingly unprincipled world.


  1. MegaByte

    JJ, in reference to your second paragraph, the "commerce clause" is not the same as the "taxation and spending clause," and in fact, the argument regarding that clause was held as untenable in the majority opinion.

  2. ThePsudo

    Yep. It was ruled constitutional to tax inactivity (under the 16th Amendment and elsewhere), but unconstitutional to criminalize it (under the Commerce Clause).

  3. Virgil

    I don't even know that it went as far as to say inactivity could be taxed. I think it was more a matter of a tax may be imposed for health care and you may receive a credit if you purchase insurance.

  4. Damian Geminder

    I found Roberts' reasoning to justify the mandate ludicrous. The Constitution gives Congress the power to tax, not private entities (i.e. insurance companies). The only Congressional "tax" here is the penalty for not engaging in a particular behaviour, and I fail to see where in the Constitution Congress has the power to force citizens to purchase a good or service. Roberts done effed up.

  5. taospark

    We have the same thing for car insurance. Homeowner's insurance while not compulsory is also linked to property value and other inducements.

  6. ThePsudo

    Car insurance is mandated at the state level; states have more power to interfere with individuals' lives than the Federal Government does due to the 10th Amendment to the US Constitution.

  7. @MHR_Topher

    Also with car insurance you are buying a product and that's a choice, the insurance is added to a purchase, if you don't want car insurance don't buy a car. Just a note, though I'm not sure how it fits with the general thought, but felt it should be said.

  8. ThePsudo

    True. You can opt out of car insurance by not owning a car. There's no way to opt out of having a medical status.

  9. Jake_Ackers

    Or drive the car in a private property.

  10. waxhawguy

    If you don't have kids (i.e. dependents) you are taxed more. Might just be my opinion, but if it's legal for the U.S. government to charge me (a single male) more than those people with one or more children (with whatever moral argument you may use) you are still TECHNICALLY taxing me more because I'm not raising a small "me". So if you are saying I can be taxed more because of a condition (which I can freely change mind you, this works in both scenarios) I have, then the argument stands that it's legal. But I may be wrong on the interpretation all together, so take my word with a grain of salt.

  11. taospark

    It's a fair argument and Roberts did use the (somewhat) more apt analogy of cigarette taxes. I agree that the penalty should not have been the cornerstone of the act but the health care market has certainly gone from being in danger to appallingly bad compared to other nations' level of cost and care.

    The often misunderstood problem is that health care is not "us vs. them", it's a pool of 6 players: larger hospital organizations, doctors, insurance carriers, pharmaceuticals, employers, and federal regulators.

    The past 50 years has been a war between all six to extract as much revenue as possible out of each other in turn, then from the patient using co-pays, commercials, speeches, layoffs, and every other possible instrument. Very rarely will all six act in concert and when they do, it's rarely to the benefit of the American patient.

  12. Jake_Ackers

    To be honest the problem is health payment not healthcare. There is universal healthcare in the US, just not universal payment. That's what needs to be addressed. Which could of easily been done by increasing the Medicare/Medicaid tax and just expanding those programs to the "uninsureable" and very poor.

  13. @Kisai

    You're going to expand taxes until they exceed revenues that way.

    If the US and other countries want to see a quick end to skyrocketing medical costs they need to change their ways of auditing performance metrics. Every business seems to align themselves with the mantra of "quantity, not quality" so the result is lots of repeat half-assed work instead of quality work, and bureaucratic overhead for risk management . In the medicine field this shows up as little to no proactive preventative health care and health education. People die by using quantity and risk metrics.

    Costs can be controlled by singling out the factors leading to most health care costs.

  14. Jake_Ackers

    Lawsuits and lack of competition. Solution: Tort reform, buy insurance across state lines, and allow people to buy more experimental drugs.

  15. S.S.

    The ruling is that Congress does not have the power to force people to buy a particular good or service. They do, however, have the power to tax people for whatever. In other words, you can choose not to pay insurance, and simply pay the no insurance tax. You're not breaking the law by doing so.

  16. @Cristiona

    You can also refuse to buy healthy food and pay the Didn't Buy Healthy Food Tax. Or refuse to buy a gun and pay the Didn't Buy A Gun Tax. Or refuse to buy a cat and pay the Didn't Buy A Cat Tax.

    Instead of unlimited power via the Commerce Clause, the government has unlimited power via taxation. 60 of one, 5 dozen of the other.

  17. spaaaaaaaaan

    The US has for some time had essentially a "Not a homeowner tax" by taxing people who weren't paying a mortgage more than those who did. If you look at it from the one side it's a 'deduction', but it's essentially saying "We tax people more who don't buy a house."

    I don't see how it's any different with health care. It's a value judgement saying "We tax people who don't have insurance more" just like the current tax code says "We tax people who don't have a mortgage more".

  18. Jake_Ackers

    Then give a deductions for those who buy healthcare instead of taxing those who don't buy it. Now that would make a lot more sense. See how now it doesn't sound as bad? It does make a difference from which side of the tax code it is coming from.

  19. spaaaaaaaaan

    It comes to the same thing though.

    Raise taxes on everyone with a 'health tax'. Give deductions to people already with health insurance. Costs exactly the same and operates exactly the same as it would now.

    That's why the court essentially calls it a tax.

  20. Jake_Ackers

    Actually no. Because under the deduction plan there is a way for me to avoid it altogether. Simply don't work, or simply don't earn enough to pay taxes. Under Obama's plan I have to pay or get insurance no matter what I do.

  21. Jake_Ackers

    No. You have to tax everyone equally. You can't pick and choose who get taxed. Surprised it wasn't viewed as discrimination.

  22. Colin Minich

    First off let me say that this ruling was a complete surprise from Roberts. Now then, there are a few issues to discuss:

    1. This is going to set off a bit of a firestorm within American politics, GOP politics, and the Supreme Court itself. It was interesting to see Roberts, a Bush select if I recall correctly, have such a change of thought with this. Of course the fact the mandate was struck down in the sense as a commerce clause by Roberts and others comes as no surprise, but when ruled as a tax measure…that made my head scratch. When you said it looked more like sour grapes, I think that's what Roberts felt too and it will be a firestorm because so few others will see it like that or just not admit it. Some newspapers have been reporting that this also gives Romney a more defined platform against the PPACA, so it makes it interesting how he'll handle it.

    2. The overreaction from the GOP is already going to cost them some credibility points come November. Romney has kept a cool head but the comparisons from other GOP members of this ruling to Hugo Chavez, Islamic law, socialism, etc., has been utterly laugh-worthy and has further solidified my base in voting Democrat in November. The Supreme Court stands as the definitive statement over the Constitution and Roberts made the right move as iffy the "victory" claim could be to a degree. Now he'll stand as a villain by the Super PACs and the Bachmann Brigades for some time, but he did the right thing. The GOP is standing as pseudo-Libertarian/Grover Norquist as possible while hypocritically wanting some spending high simply for defense to maintain their hawkish "cool." I'm all for defense and international alliances but if you're really going to screw over your own people while screaming for spending cuts, please be considerate.

    3. The ruling had, unfortunately for some, destroyed an extension of Medicaid. So all in all this isn't a full victory for the Democrats. If they were wise they wouldn't proclaim it to be. Obama has to play it cool, and ugh…for the sake of November credibility not act high and mighty with this.

    Overall this made me happy. It was good to finally see some judicial progression.

  23. taospark

    I think the fact that some of our most key questions of constitutionality depends essentially on one swing vote in the entire nation should be disturbing to citizens of all stripes. That there may be no easy Constitutional way to resolve that kind of near ideological gridlock is too chillingly reminiscent of the corrupt judicial systems we Americans so love to deride.

    Term limits and a lack of ideological prerequisites would be a great way of deescalating the increasing arms race for the Supreme Court. Unfortunately, it seems to be a problem that may outlast all the other political issues we're dealing with.

  24. Colin Minich

    It's no question it's disturbing to you and I. We've already seen ideological hijacking but I hate to be the guy to say this but I believe that one party, the other, or both may very well have to run themselves into the ground before true reform happens from within. I really don't find the SCOTUS to be that overwhelming of an issue with the constitutionally-designed branches of government. It's Congress that is a lot more suspect.

  25. ThePsudo

    tao: Have you read the various official opinions of the justices, not just press summaries? I find it hard to read their actual arguments and not find comfort. Legal argument, not partisan argument, seems to rule.

  26. taospark

    Certainly. I'd -like- to think that Sotomayor and Kagan have been more reserved and impartial than say, Scalia, Alito, or Thomas. (Scalia directly lodged a dissent at Obama while referencing slavery-era laws during the Arizona SB 1070 case and is married to a lobbyist.)

    However, more liberal nominees certainly come through a system of implied patronage and at least some quid pro quo. I guess I find the Supreme Court's apparent biases more alarming since it may be down to one or two votes for the next few decades while Congress can easily sway every two years.

    I'm not foolish enough to believe that we'll go back to a (fictional) age of past impartiality; things were definitely worse and more biased in the past.

  27. Jake_Ackers

    Kagan wrote the healthcare law. Of course she is going to says its constitutional even if she thought/really isn't. Can't be more bias that writing the law.

  28. JonasB

    Kagan recused herself, I think.

  29. Jake_Ackers

    The decision was 5-4. Last time I checked it was 9 Supreme Court Justices. She actually refused to recuse herself.

  30. SES

    It was the Arizona case that she recused herself from, not the PPACA case.

  31. Pat Gunn

    It's not exactly a vote; justices do need to explain their reasoning.

  32. Jake_Ackers

    I agree. It's scaring how close it is. All Supreme Court decisions should be by a two vote margin at least to be held Constitutional, like 6-4. That would mean making the Supreme Court even numbered. 5-4 is too narrow.

    My point is that a Supreme Court decision is pretty much an amendment to the US Constitution. So how is 5-4 even fair? It should be at least 60% if not 2/3 to uphold the constitutionality of a law. Otherwise if it fails to meet the 60% margin then the law is automatically declare unconstitutional and returned to the Congress to rewrite it until it is or have Congress let it die.

  33. Jake_Ackers

    So someone is going to vote Democrat even if they think Obamacare is constitutional because one person called Obama the next Hugo Chavez. I have yet to hear that kind of rhetoric by the right on this issue (I am sure there is but not to the extent you are saying it is). Plus the outrage is at Roberts more so than anything.

    Plus under your theory Bush should of been reelected by a 90% margin and McCain by even more so. People even made FILMS about killing Bush in additon to the dolls of Bush burning in the streets.

    Btw if the GOP is being libertarian then it would oppose the kind of defense spending it is doing right now. It was the Tea Party who didn't want to go into Libya and people like Ron Paul who want to cut spending. But there are those like Santorum and Bachmann who won't cut a cent. So can't lump all the GOP into one box.

  34. Colin Minich

    That's not the sole example, so please don't make that the case. Also, the Reuters live feed helped when I was paying attention to the ruling. I'm voting Democrat because I cannot agree with anything the GOP is offering be it hypocritical or just plain wrong. It's a party that has fallen sway to people like Bachmann or Norquist. The outrage is NOW at Roberts, but right then and there it was of a different tune. Michael Pence (R-IN) compared the move to the 9/11 attacks.

    He later apologized, but the mark is still there given their rhetoric: http://www.theblaze.com/stories/republican-mike-p
    This is where the Chavez comparison came: http://heartland.org/press-releases/2012/06/28/he

    I apologize though noticing it was the Heartland Institute and not an actual politician, but it sets the tone of some of their thoughts.

  35. Jake_Ackers

    People compared Bush to the devil. Regardless, my point is that it happens on both sides even from elected officials. Everyone says stupid things. If a person really judged a side based on the craziness said a person would never vote at all ever.

    And it's unfair to say the party has fallen to Bachmann. When she couldn't get passed Iowa. If the party was really reflective of Bachmann she would of gotten a lot more votes and Romney (who is far from a Tea Party guy) wouldn't be the nominee. She is just one of the loudest.

  36. Colin Minich

    It's not just what they say, but how they act. I'm leaning closer to Democrat because in my heart of hearts the GOP has truly become the Party of No.

  37. Jake_Ackers

    My point is not everyone is voting the same way you do. And people are just as likely to vote for the GOP the same reasons you are voting for the Dems. The same way someone could vote for the Dems because of the rhetoric of the right is the same reason someone could vote for the Reps because of the things the left says. The sword cuts both ways.

    And in terms of the Party of No, every party does that when in the opposition. The Dems did that when Bush was in power. It's called politics. And actually the GOP has proposed countless pieces of legislation that the Dems in the Senate shot down or the President vetoed. Ryan Plan being a big one. You may not like the bills but it has been proposed. So I don't think calling either party every the party of no is fair. But again like I said that is the point of the opposition.

    I'm not saying anything you said is wrong. All I'm saying is that the same can be said about both sides.

  38. Colin Minich

    "And in terms of the Party of No, every party does that when in the opposition. The Dems did that when Bush was in power."

    So Iraq was a shining example of that?

  39. Jake_Ackers

    Are you seriously saying Dems never ever just opposed bills? Both sides do it all the time. How many times do you actually see either party vote no on something and at the same time make a huge campaign for their version of it?

    You seem to forget how politics works. The other party will only introduce a counter bill if it makes political sense. The Dems didn't offer an alternative to Bush's push to privatize social security because it's a political minefield. The Republicans aren't going to push anything on healthcare until Obamacare is repealed. Just look at Paul Ryan. His plan actually addressed the bloated Medicare and Medicaid programs and it was shot down by both Dems and Reps. Did the Dems or Reps offer a new bill to fix it? No. Who is going to touch Medicare and Medicaid during an election. No one.

    When the Dems whined about the Bush taxcuts did they offer something new? No because it didn't make political sense to do it. They new they never were going to pass a bill to raise taxes when the Bush taxcuts were expiring. So they rather let them expire and just say "It's an expiration not a tax increase." Than say "let them expire and in addition also increase the taxes even higher" Yah because that would of played out amazingly. Obama waited 2-3 to talk about his minimum tax payment for the rich until the political climate was right. And even then he only talked about it.

    Both sides do it. Politics is a slow beast and for a purpose. If politics moved quicker imagine how many more garbage pieces of legislation would come out of Washington. That's why the founding founders gave us all these stop gaps when writing legislation (bicameral legislature, committees, subcommittees, vetoes etc. etc.). Do you know how many stupid bills (just the dumb ones not even all of them) end in committee? Tons.

  40. Colin Minich

    I know both sides do it, but in a recession I'd love some cooperation and after seeing the GOP, Tea Party, and the rest of the ideologues, I'm going to ally Democratic and I couldn't give a damn what idealistic principle might oppose such a decision.

  41. Colin Minich

    And people made YT videos about assassinating Obama. It happens but I'm betting my bottom dollar that the base that's currently wanting Obama dead also has access to a lot more guns and a patriotic fervor that would encourage such acts. I did not dismiss left-wing terrorism at all and I found a lot of the Occupy/anti-Bush rhetoric about violence upon those utterly distasteful, but the right wing is the soup du jour and it's disturbing because there are more religious and political leaders who might look the other way with it too. And they're still part of the party are they not? Ron Paul is just the libertarian fringe who would cut it too much. It is being libertarian in its regard for businesses and regulation. It is being libertarian in its rather awful stance on insurance and municipalities, eager to cut education and other services that may seem bureaucratic to them.

  42. Talor

    I'm open to debate on this, but I don't think the commerce clause aspect of the decision is going to be as important as Will, Krauthammer etc. think it will be. I think the health reform is so sui generis as to make the decision on it difficult to fit into precedent.

  43. Guest

    I find the decision quite heartening in a way – it is a reaffirmation of the notion that you can't take any of the judges for granted and that they will decide based on the arguments, not ideology.
    I also find the decision not terribly surprising. In most of the Western World vice taxes are well established and non-controversial.
    I guess Roberts sees not having health insurance as simply another form of vice.
    Here in Australia we have a medicare levy and a medicare levy surcharge. Everyone who earns over a certain level pays the medicare levy (which pays for our public health system), and everyone who earns over a certain level and chooses not to have private health insurance pays the additional medicare levy surcharge. It is simply levied an an additional tax on personal income.

  44. Jake_Ackers

    But that's a service charge for a government provided product. The Obama tax is not a service charge as you don't get state health insurance. And the fine is less than insurance would cost anyway.

  45. JonasB

    The Supreme Court, despite the political motivations behind its appointees, is meant to be a non-partisan arm of the government (hence the lifetime appointment). Roberts has done nothing more than look at the legislation, looked at the constitution, and applied his judicial knowledge to determine how valid it is. The only reason Roberts's opinion is a big deal is because Republicans thought of him as "their" guy while completely forgetting that his obligation is to jurisprudence and not to a party's ideology. Don't forget that there were four other Justices who came to similar, if not the same, conclusions as Roberts but no one is paying attention to them.

  46. Jake_Ackers

    Valid point. But it just seems worst considering he first was against it before he was for it. He changed his opinion just to keep the law in place. Not because he actually thought it was constitutional. Or at least that's the reports coming out. Hard to know exactly because what happens in the Supreme Court is behind closed doors.

  47. JonasB

    Saying that it's constitutional does not equal agreeing with the law. The Court's ruling ONLY means: "This specific law is a legitimate use of government power". It is not saying "This is a power the gov't has" or "This is a good law" or anything else. If anything, being able to declare it constitutional while simultaneously disliking the law shows how a proper Supreme Court should function.

  48. ThePsudo

    Similar perhaps, but not nearly the same. Only Roberts specifically declared that commercial inactivity cannot be regulated under the commerce clause, for example. That by itself is a huge legal precedent.

  49. Zulu

    Although I'm not a fan of the individual mandate, I was relieved to hear the decision. This will cut government spending by hundreds of billions of dollars in the long term and opens the door to more health care reform that will be necessary if the US' fiscal health is not to languish…

  50. Jake_Ackers

    How is this going to cut spending? Healthcare spending is a state issue. The federal government didn't really fund it. Now the federal govt is going to cover a ton of people. The spending is going to go through the roof. And considering all the taxes, the economy will shrink or have slowed growth. Thus even less revenue.

    But you are right that it is going to open the door for more reforms. If anything, its going to force reforms. Especially if the GOP wins.

  51. Man Guy

    Hospitals often have to cover the costs of caring for those who have no insurance and cannot afford to pay out of pocket, roughly 60% of all ER visits which make up a large bulk of patients, by increasing prices elsewhere so those who can pay will make up for the losses, and even then many hospitals and clinics have folded under the financial strain while many others are struggling to stay afloat. Now, with most people either required to purchase insurance or will be covered by expanded Medicaid and Medicare, this gives hospitals the leeway to no longer take huge financial hits since all of their customers can pay for the care they receive which will lead to prices overall decreasing for care. Once the cost of health care goes down then the price of health insurance, and in turn public insurance such as Medicaid and Medicare, should go down as well.

  52. Jake_Ackers

    Those are all largely run by the states (with federal matching funds for certain things). And again the regulations put in place will cause prices to skyrocket. Every time government gets more involved in healthcare the prices goes up. The states could see some decreases as hospitals won't go belly up (although it might get worse with all the regulations). The federal government's main benefit would be from economic growth which this law completely kills with all the taxes.

    My point is how this bill is written is the large problem. Even if the theory of Obamacare would work, the problem is how its written. The regulations and taxes are too overreaching. I can see how in theory it could work but that is assuming costs actually come down. The CBO has been saying Obamacare is going to costs tons more than predicted.

  53. Man Guy

    Prices go up when the government gets involved and does nothing to compensate the industry. Prices began spiking when ER care was made mandatory in the Reagan years and the hospitals were not compensated for this. Prices also go up when industries are subsidized (eg. pharmaceuticals) yet the companies are allowed to set their prices as high as they want anyway. Likewise, the health insurance industry was almost completely unregulated and were thus allowed to raise premiums at a moments notice and drop customers once they needed the service for little to no reason. Thus, with just that, the system prior to the ACA was ruthlessly inefficient, bankrupted hospitals and patients, and inflated prices both out of necessity and for the sake of ever greater profit.

    Now, the health insurance industry is regulated, hospitals and clinics will be paid, and people don't have to fear being dropped off their coverage or their premiums raised if they go to be treated for anything. Regulation was desperately needed and though the ACA is not perfect it is a vast, vast improvement over the system before. If opponents of the act would actually provide an alternative then I'll bother to listen to them. Until then, all I hear is repeal, repeal, repeal with no replace.

  54. Jake_Ackers

    Again as I have stated before. Democrats did the same when Bush went after Social Security. They said no and Harry Reid even said, he won't address social security until it is about to go bankrupt.

    In an election year no party is going to step onto the third rail of politics if ever. Dems said no no no when they were in the opposition and Reps are going the same thing. It's typical politics.

    Moreover, whenever Republicans talk about tort reform and buying insurance across state lines the Dem just say no. And what about the Ryan plan, that also address healthcare and insurance, primarily Medicare/Aid ? Both sides said no and didn't address it further.

  55. Nicolasrll

    My favorite ridiculous overreaction to this decision must be Rush Limbaugh wailing “Obamacare is nothing more than the largest tax increase in the history of the world", if only because it's so reminiscent of Bart Simpson's "This is the biggest injustice in the history of the world!"

  56. Virgil

    lol…well it is a big tax hike

  57. ThePsudo

    I liked Rush's "Democrats are still claiming it's not a tax. Of course it's a tax! It shouldn't even be called ObamaCare, it should be called ObamaTax!"

    I disagree with Rush that it is this huge, world-changing tax of epic proportions, but it certainly is a tax and I like the over-the-top rhetoric in support of a simple truth.

  58. Kadin

    "I do think Obamacare went about fixing America’s health care woes in all the wrong ways — like Canada, I think the United States would be best suited to embrace some manner of two-tier system, where public and privately-run health care providers and insurance companies can exist and compete in a shared marketplace"

    So basically a "public option" – expand Medicaid or create some other public insurer to compete with the private ones? The problem with advocating that as a solution is that there wasn't really a majority to pass it in Congress. It was a popular idea among the left wing of the Democrats, and among the general public, but that doesn't mean you can make it law. The question you ought to ask is whether Obamacare is better than the only realistic alternative: the status quo ante.

  59. Virgil

    I'm going to disagree on some historical and constitutional points.

    I once worked for a Constitutional Law professor, who, I suspect thinks very much like Justice Roberts. To begin with, the written constitution of the United States is specifically one of enumerated powers. Its power to collect taxes did not, originally extend to income taxes, and the various social programs that exist are not in the enumerated powers. This has led some constitutional scholars to look to the general welfare "clause" as a means of covering these programs, but that is and always has been a cop out. "General Welfare" appears in the preamble, and is not a clause in its own right. Therefore some better argument had to be made.

    The traditional power for permitting social security, medicare, etc. has therefore been the commerce clause. It is also the basis, not by coincidence, of the Civil Rights Act of 1964 (think like LBJ….when the act is based on a broad reading of the commerce clause, those who benefit…women and minorities will become emotionally and practically attached to the party that advocates a broad reading of the commerce clause….get it?). Since this also permits the regulation of business it has become a major fault line between the parties. Its range has been broad since the Supreme Court reversed itself (on the issue of Social Security) in 1937. One major question here was whether it could tax inactivity. This was a major question since if it could it would effectively be freed from all limits.

    Conservatives hated this notion. Roberts does as well, hence his first few paragraphs. Roberts though is not a libertarian type conservative like, say Justice Kennedy. He's more of a New Deal justice…the type that governed the Court from 1937-1965 when Felix Frankfurter was replaced by Justice Goldberg. He wanted to separate major political issues from the Court. This left the taxing power. Taxes were originally enumerated as well but the 16th Amendment permitted the income tax. The bottom line is this….no one doubts that the Congress could put a new tax down and then give a tax credit for buying insurance under existing law. Roberts has therefore stated that, since it could be done this way it legally must have been done this way to preserve its constitutionality. What is left is this: The Supreme Court has a duty to let laws stand if possible under any constitutional interpretation, and this stands as a tax increase. I have seen no commentary on this first point. I think that Roberts is specifically attempting to place upon the Court the duty of letting Federal laws stand if possible. If he can, I suspect Roberts would extend this to the states.

    Final point: we are dealing with a New Deal schism. Judge Roberts has stated that the Justice he has most admired is the FDR appointed Robert Jackson. Jackson had a sort of let everything alone jurisprudence, and fought with Hugo Black who advocated a much more activist, individual rights based jurisprudence. FDR promised Jackson the position of Chief, but FDR was dead before he could do that. Black's school of thought eventually carried the day when Earl Warren became Chief in 1954 and started enacting Black's vision of the law. Roberts is probably trying to reverse this.

  60. ThePsudo

    Excellent summary!

    I do not think that "Roberts is specifically attempting to place upon the Court the duty of letting Federal laws stand if possible." He explicitly cited a Supreme Court decision on that point. "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California (1895), 155 U. S. 648, 657

  61. Virgil

    Thanks for the compliment!

    If I may counter your point slightly, the date of the case cited is important. There is a school of thought…and this professor I worked for was a part of it…that the Courts were not really activist until 1905. The theory goes like this: Marshall struck down only two statutes, in Marbury and McCollough. Taney saw activism in the form of the Dred Scott Decision, but that was quickly repudiated by the Civil War and its aftermath. Large scale activism did not begin until Lochner vs. New York when the Supreme Court started striking down legislation willy nilly. This was undone by the New Deal legal revolution in 1937, but activism returned during the Warren Court years during the 60's (it does not include Brown…the charge derives from the enactment of incorporation of the Bill of Rights to the states), and since then the Court has been unnecessarily involved in claiming power it does not necessarily have, particularly regarding social legislation.

    A long story, but the point of it is that even in citing that case Roberts may be trying to reanimate concepts of judicial restraint that have lay dormant since 1963.

  62. prestwickuk

    I think Robert's decision is interesting as it shows that in a positive way the Constitution of the United States is as complex a creature as its un-codified cousin in the UK. It is also a tacit admission that the Supreme Court should not be wielded as a political weapon to strike down legislation. Roberts said “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass on its wisdom or fairness" and that is absolutely right. The role of the Supreme Court is to act as an impartial check on the other two branches of government within the United States and whether you or me agree on "Obamacare" or not (and I will not state my position on this by the way) the Supreme Court acted admirably in this case. As a disclaimer if the Supreme court refused to overturn a law I didn't like, I would still respect their decision.

    My final point is this. In America healthcare costs are going to climb regardless of if Americans opt to continue with the current system, throw their lot in with the administration's law or opt for something more radical. This is a certainty and it is very disingenuous to argue that there is some kind of magic bullet solution to America's healthcare cost crisis.

    The question should be how best to manage this gradual climb in costs so that those worst affected do not suffer. That could be done by private or public means but that is for another debate.

  63. Checkitnow

    The question should be how best to manage this gradual climb in costs so that those worst affected do not suffer. That could be done by private or public means but that is for another debate.
    Good thought http://essays-tips.com/