The Big Decision

You better not pout, you better not cry, you better not shout I’m telling you why. The Commerce Clause is coming to town….
Here’s my writeup on what happened. More to follow on other days, I’m sure.
A few other observations:
-In the long run, I’d rather lose the ones we can fix democratically than the ones we can’t.
-If Congress starts justifying every new regulation as a tax, Grover Norquist is going to be a very busy man.
-Romney has raised a vast amount of money from a lot of new donors today. Even more than energizing and galvanizing the base in the presidential race, focusing on repeal as a political goal should help down-ticket Republicans in Senate races (in states like Missouri, Ohio, Virginia and Florida) who lack Romney’s baggage on the issue.
-Both the Roberts and Scalia opinions are very explicit about the fact that Obamacare puts “massive new costs on insurers” and is essentially collectivist in using the mandate to force young people to subsidize the care of others by buying policies that will deliver them less benefits than the premiums they pay.
-I don’t know that anybody predicted a lineup of 5-4 for the mandate under the taxing power but 7-2 against the withholding of Medicaid funds from states that refuse to join the expansion of the program. It’s remarkable that Obama’s own Solicitor General at the time Obamacare was written joined an opinion calling it “a gun to the head” of the states.
-For all the flap before the decision about Justice Scalia rethinking Wickard v Filburn in his new book, neither his opinion nor Roberts’ actually argues for overturning Wickard or Gonzales v. Raich. That may come another day, but for now the Court simply distinguished them.
-I see in some quarters the notion that Scalia was wrong somehow to refer to Ginsburg’s opinion as “the dissent,” but her opinion is 4 Justices dissenting from the Court’s conclusion that the mandate wasn’t supported by the Commerce power. That is, technically, a dissent on that issue.
-Justice Thomas’ pithy 2-page opinion basically says that Congress is a spoiled child the Court didn’t say no to often enough & now it’s grown into an idiot teenager that does stupid things like try to force people to buy insurance policies. I paraphrase, but not by much.
-Characterizing the mandate as a tax may make it easier for Republicans, procedurally, to justify using the reconciliation process to repeal the bill with 51 votes instead of 60 in the Senate.
-This morning’s result will make Obama look even more ridiculous the next time he frames Citizens United as the work of a runaway right-wing Court.
-A prediction: the centerpiece of Chief Justice Roberts’ legacy on the court will be a case that hasn’t arisen yet.
Other commentary around the web worth reading:
Erick Erickson on why he’s not that down on John Roberts.
Krauthammer explains the institutional reasons that may have motivated Chief Justice Roberts to uphold the law.
Sean Trende compares Roberts’ decision to Marbury v Madison, which was my first thought as well.
Avik Roy looks at how the Medicaid decision could explode the federal deficit.
Tom Scocca looks further down the road at the impact of the Commerce Clause decision.
-In case you missed it, why IPAB is unconstitutional in at least two ways.

5 thoughts on “The Big Decision”

  1. I find articles like Sean Trende’s arguing that the ACA decision is a long-run win for the right to be highly unpersuasive. It is very unlikely that the basis on which the Court decided the Commerce Clause issue – activity/inactivity – to be applicable to many future cases. There is a reason, after all, that this was a case of first impression. Moreover, it seems to me likely that the rule will only stand for so long as conservatives have a majority on the Court. When liberals regain a majority, we go back to a Commerce Clause interpretation of “anything goes”. Indeed, even if conservatives retain a majority for a long time, it seems to me likely that the case will be read narrowly – after all, Lopez and Morrison were very narrowly interpretted and didn’t lead to a conservative victory in Raich.
    I do think the Medicaid decision could be important, given that it seems likely, given budget constraints, that Congress will want to increasingly coerce the states to do things and spend money. But, even in that case, it seems to me likely that this case will be an outlier, to be used simply as a distinguished case while upholding a Federal law.

  2. Thomas didn’t need to write much because he was referring back to long opinions he had written previously.
    I was recently plowing through his scholarly and original 31-page dissent in the Camps Newfound/Owatonna case, which is a tour de force on the Dormant Commerce Clause and its relationship to the obscure Export-Import Clause; it’s hardly the only such opinion of his, but perhaps the one that best captures his unique approach. Only ignorance or worse can justify characterizing Thomas as an intellectually subpar Justice.

  3. With Thomas it’s less his intellectual chops than his corrupt-ish behavior that’s disquieting.

  4. Ah. The racism card. Isn’t it odd that the right bristles so quickly at the innumerable examples of oits own racism and squeals like a stuck pig and yet lays that very card on the table when the perjuring sphinx is attacked?

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