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June 28, 2012

Early SCOTUSblog report on ACA ruling: "It's very complicated"

I am very much enjoying this morning watching SCOTUSblog and Fox News trying to figure out what the heck is going on.

Here is Tom Goldstein's first-cut assessment: "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read.... Chief Justice Roberts' vote saved the ACA."

Amy Howe adds: "The money quote from the section on the mandate: 'Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.' "

Notable early summary of Fox News spin: Chief Justice John Roberts: George W. Bush = Justice David Souter: George H.W. Bush

June 28, 2012 at 10:11 AM | Permalink


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ABC (6/26/12):
It's unconstitutional to force everyone to purchase health care, but it's constitutional to tax (punish) those who do not.

ABC (11/20/09):
|| Obama: Mandate is Not a Tax ||

STEPHANOPOULOS: That may be, but it's still a tax increase.

OBAMA: No. That's not true, George. The — for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase.

Posted by: Adamakis | Jun 28, 2012 10:25:44 AM

Will this opinion damage Obama politically since calling the mandate a tax will allow Repubs to claim that Obama orchestrated the largest tax increase in the history of this country?

Posted by: justice seeker | Jun 28, 2012 10:44:19 AM

I refuse to go over to Volokh and gloat. Let them lick their wounds in peace.

This is a major and significant long-term strategic loss for the Republican party. They invested a great deal of time, energy, and intellectual capital on this fight and they lost it. The went "all in" and now what. The problem for them...especially the libertarian wing...is that they have no credibility. The next time these people are itching for a fight the donors are going to think long and hard about whether it a wise use of their resources rahther than piling on the bandwagon.

Sure the Republicans are going to brand it a tax. It was a tax. But the truth is that (a) they got nailed with it and (b) they still don't have a viable alternative. So now screaming about the tax just looks like whining which is not a way to grab power; it rarely goes to losers and whiners.

Posted by: Daniel | Jun 28, 2012 11:13:54 AM

This looks like a really bad decision for those of us who are wary of expansive, intrusive government.

I haven't looked yet (through all 193 pages of the multiple opinioins), but I'm curious to see how Scalia reconciles his dissent in this case with his opinion in Raich.

Posted by: Calif. Capital Defense Counsel | Jun 28, 2012 11:47:51 AM

MSNBC: Cheerleading and heedless excitement
FOX: Spin to the point of failing to really report the huge news that just happened
CNN: In the middle, except that for the first 10 minutes they reported that the mandate was *struck down*

Nice choices (although CNN did have some insightful coverage, after they figured out their big screw up)

Many people have been saying this is a major Commerce Clause precedent -- I don't see how. The only majority/controlling/opinion of the court sections on the mandate are the introductory sections and III-C which simply upholds it as a tax. I get that *CJ Roberts* thinks that his commerce clause analysis was a necessary precursor to that holding. And if that had attracted 5 votes, it might make the Commerce Clause analysis precedential. But as it is, the argument that a rejection of the commerce clause was necessary to the result attracted only one vote -- Roberts'.

I do think, though, that the Spending Clause holding may end up being somewhat consequential.

Posted by: Anon | Jun 28, 2012 11:48:45 AM

Will the (apparent) narrowing of the Commerce Clause have any impact on any federal prosecutions? Any suggestions regarding the best on-line resource that might discuss that issue?

Posted by: Ryan S | Jun 28, 2012 12:16:14 PM

It's remarkable how close the conservatives came. In his six years on the Court, Roberts had never sided 5-4 with the liberals. (There was one comparatively obscure case settled 5-3.) To say Obamacare survived by a whisker is an understatement. I was surprised that Kennedy came down as far to the right as he did, given that at oral argument he portrayed it as a close call.

But although they didn't win in Court, the conservatives have won in another sense: most of the public opposes the act, even though, paradoxically, they support most of its provisions when they are polled individually. Obamacare probably cost Democrats the House in 2010, and although I don't think Romney can win on health care alone, the issue may help him more than it does Obama.

So the liberals have a long slog ahead of them, to persuade the public that this is actually a good law, and in the meantime conservatives will have plenty of opportunities to keep taking whacks at it. It really is amazing how badly liberals have lost the messaging game, when so much of the law actually does things that most people want. But they are not going to turn that around overnight.

And remember, conservatives are notoriiously patient. Look at how many years it took for them to finally prevail on issues like Citizens United and the Second Amendment. They lost this round, but they aren't finished by a long shot.

Posted by: Marc Shepherd | Jun 28, 2012 12:36:52 PM

'They lost this round, but they aren't finished by a long shot.'

hopefully this is just the beginning round of what will be a continuing loosing battle for the demi-gods of the rightwing and the dogma they promote

Posted by: Frank Carpata | Jun 28, 2012 12:53:06 PM

"The Gallup survey found that 40 percent of Americans consider themselves conservative...21 percent see themselves as liberal. The figures did not change from 2010." (1/12/12)

|| most of the public opposes the act...so much of the law actually does things that most people want ||

How it's paid for, how it was passed (reconciliation, end of December, etc.), and that the federal government will force people to pay for it or pay the penalty, are among the reasons "most oppos[e] the act".

Of course individual goodies are appealing. Why do people refuse to work when the benefits are better not to do so?

Posted by: Adamakis | Jun 28, 2012 1:03:29 PM


Cut the spin and bullshit, please. CU is only a 5-4 vote so that is a triumph for conservatives while the 5-4 win here is losing by a whisker. Please, that's the tripe I would have expected out of Bill Otis.

Posted by: Daniel | Jun 28, 2012 1:10:14 PM

@Daniel: I am merely pointing out that conservatives still have powder in the chamber, and they have frequently won their battles gradually, rather than all at once. I don't think they are finished yet. (As a supporter of the Act, I want them to fail, but I'm willing to call a spade a spade.)

Naturally, conservatives are dismayed that they didn't get the home run, but they nevertheless got a ruling that is useful in a number of respects. For instance, they got a partial victory on the Medicare issue, on a theory none of the Courts of Appeals had endorsed, and that most people considered a big stretch.

@Adamakis: The polling makes rather clear that most people who oppose Obamacare don't even realize what's in it. Conservatives have overwhelmingly won the messaging, in that respect, by successfully characterizing the law as something other than what it is.

Now, I realize that some people would still oppose the law even if it were characterized accurately, but it would be a smaller number than those who oppose it today. The liberals will never persuade everybody, but they've done a startlingly poor job of making the favorable arguments for the law that could be made.

Posted by: Marc Shepherd | Jun 28, 2012 1:35:56 PM

I am shocked that, on this blog, one particular point has yet to be made about the Health Care Act case and Booker's role in its outcome.

After holding the Medicaid expansion unconstitutional, the Court had to decide the remedy for violating the Spending Clause: Must the entire expansion fall or does it remain in some form?

And how, exactly, did the plurality come to its remedy? By looking to the Booker remedy opinion: "In considering that question, '[w]e seek to determine what Congress would have intended in light of the Court’s constitutional holding.' United States v. Booker, 543 U. S. 220, 246 (2005)."

Booker is twice cited by the plurality to support its remedy.

Posted by: DEJ | Jun 28, 2012 2:35:38 PM

"Notable early summary of Fox News spin: Chief Justice John Roberts: George W. Bush = Justice David Souter: George H.W. Bush"

This is just funny. John Roberts the closet liberal--who also gave us 5-4 decisions in Citizens United, Heller/MacDonald, Gonzales v. Carhart, and Parents Involved in Community Schools.

Yep...David Souter would DEFINITELY have voted the same way in all of those decisions.

Posted by: Res ipsa | Jun 28, 2012 3:04:51 PM

"but they've done a startlingly poor job of making the favorable arguments for the law that could be made."

That's because they continue to run scared, which is largely a class issue. One of my fainter but fonder hopes is that this ruling will help to rehabilitate the word tax in our political discourse.

I'll also add the while Roberts may be a lonely voice on this issue on SCOTUS he is not in real life. I defended the law on just those grounds in my remarks in this thread back in March.


The problem is that a great deal of effort has been wasted precisely because no one is willing to call a spade a spade. This law is a tax. It has been a tax all along. But liberals run scared of taxes and so they bought into a political mechanic that played right into the Libertarians judicial hands. Thank goodness Roberts at least had the sense to see the truth for what it is and call it the correct way.

Posted by: Daniel | Jun 28, 2012 3:19:48 PM

Marc Shepherd --

Marc Shepherd | Jun 28, 2012 12:36:52 PM = Bingo.

This is, for the moment, a bitter pill. Adults, however, learn that the moment passes.

I remember Goldwater's blowout loss, which was heralded by the MSNBC's of the day as the end of the Republican Party and/or the conservative movement. And for a few days, that's how it felt to me.

Sixteen years later, Reagan crushed Carter, bringing in a Republican Senate as well.

This is going to be a close election. Romney now has one arrow he didn't have yesterday: "If you want to get rid of Obamacare, the only way to do it is to get rid of Obama."

Posted by: Bill Otis | Jun 28, 2012 4:05:51 PM

Yeah -- a crooked arrow: denying that he, Mitt Romeny, is the father of Obamacare. Brilliant argument.

Posted by: Shane Stevenson | Jun 28, 2012 4:36:37 PM

'a crooked arrow'


Posted by: Frank Carpata | Jun 28, 2012 5:31:52 PM

Följande gång jag lär en blogg, hoppas jag att det inte besviken mig så mycket som denna. Jag menar, jag vet att det var min möjlighet att lära sig, men jag trodde verkligen youd har något uppseendeväckande att säga. Allt jag hör är ett gäng gnällande om en sak som du kan reparera om du werent för upptagen sökande efter uppmärksamhet.

Posted by: chaussures air max bw | Jun 29, 2012 5:35:15 AM


Yes, it is a "brilliant argument."

The American people are results-oriented. They could care less if Romney is the "father of Obamacare." He will get rid of the largest tax increase in American history on the poor and middle class. Obama will not. To the degree that this issue moves voters, THAT is what will move them.

Harry, Barry, and Scary lied through their teeth when they sold the bill as a penalty, not a tax. Romney did not.

Those arrows shoot true and straight.

There IS another silver lining in all of this. Being officially a "tax" means that repeal can happen in reconciliation and the Senate will need 51, not 60 votes for repeal. Although by no means was yesterday a victory, it did make the legislative process for eliminating the most dishonest bill ever passed easier.

Posted by: TarlsQtr | Jun 29, 2012 8:59:56 AM

Anyone who actually reads John Roberts decision knows that it is full of the type of conservative talking points which Fox News promoted including the stupid broccoli example (which Ginsburg absolutely blew out of the water). Anyone who reads Ginsburg concurring and dissenting opinion knows that Roberts' opinion is in fact quite conservative and while upholding the ACA has basically killed it and possibly many other programs using state grants through a new made up limit on the spending power.

Anyone who thinks that the conservatives lost didn't read this didn't read the opinions - especially Ginsburg's - which shows that while John Roberts retains a veneer of judicial restraint (which the dissenters quite accurate point out amounted to the Chief Justice amending the law that Congress passed and as Ginsburg pointed out was based upon a test which Roberts pretty much made up on the spot) his opinion was actually extremely radical. The fact that Roberts opinion was primarily based upon a case from the Lochner era striking down a tax on companies that use child labor tells you all you need to know about how right wing - with a phony veneer of judicial restraint - Roberts opinion really is.

The irony is that for anyone who supports real health reform, which is to say a single payer system and not this giveaway to private insurance companies (which has been rendered completely unworkable by the Chief Justice) the joint dissent was actually the best opinion - at the end, the four right wing justices practically endorsed a single payer system as the only system which they believe would achieve Congress's goals and pass Constitutional muster.

Both Ginsburg and the disenters accurate point out that Roberts opinion is essentially nonsensical - as the disent points out, Roberts effectively repealed the law by himself since with the Medicaid expansion the law will not work and amended it to the point where it is guaranteed to fail.

And Bill, I can't see Rommey gaining any ground from this ruling - quite simply it was his law (and Nixon's) long before it was Obama's - and once people actually read the opinion (not that most will) they will see how radically right wing it really is. Especially when people start to use the ruling striking down the Medicaid expansion to go after a host of popular federal programs.

Erika :)

Posted by: Erika | Jun 29, 2012 9:16:34 AM

Erika:: "Both Ginsburg and the disenters accurate point out that Roberts opinion is essentially nonsensical"

So why did she not dissent?

Shades of Roe v. Wade, i.e. Machiavellian/dishonest advocacy of the fallacy of amphibology?

Posted by: Adamakis | Jun 29, 2012 9:36:38 AM

Hello Erika,

You suffer from the same eggheadedness as Shane and all of the political prognosticators that are wrong as often as right.

The electorate does not care if Nixon, Romney, or a conservative think tank were the first to conjure up the individual mandate. The people do not like the law and Romney will repeal it. Obama will not. Americans are repulsed by the thought of the largest tax increase in American history (75% of which will fall on the poor and middle class, according to the CBO). Romney will repeal it. Obama will not.

Anything more than that is overthinking it in search of spin.

Posted by: TarlsQtr | Jun 29, 2012 9:59:45 AM

Adamakis, she did - her opinion was concurring in part and dissenting in part - in fact, she dissented very strongly from the Commerce Clause decision and striking down the Medicaid Expansion - she just went along with Roberts on his amendment of the Medicaid Expansion because she effectively had no choice.

and um, its not like Roe v. Wade at all - Roe v. Wade had a whole lot of history (abortion was legal at the time of the founding of the U.S.) on its side and a very solid Constitutional base in the Ninth Amendment and a pre-existing general right to privacy and to be left alone (in fact, Heller probably strengthened the argument that a general right to privacy from the government exists by using a pre-existing right to find an individual right to bare arms aoutside of the plain language of the Constitution)

but speaking of Roe v. Wade, what is Romney's position on abortion today? Has he flopped back to being pro-choice yet?

Erika :)

Posted by: Erika | Jun 29, 2012 10:06:10 AM

TarlsQtr, what you fail to understand is that the law has already been effectively overturned by the Supreme Court - Roberts' amendment to the law makes it completely unworkable.

oh as the opinions very clearly point out, poor people are excempt from the individual mandate - thus, there will be a whole lot of people who are not going to be insured thanks to the Medicaid expansion being struck down.

Not to mention the fact that Congress has not funded it - and likely won't now that it cannot possibly work as intended.

There is no need to kill that which is already dead.

Erika :)

Posted by: Erika | Jun 29, 2012 10:16:06 AM

It is humorous to see people view this as a Republican vs. Democrat thing, and a Romney vs. Obama thing --- like either party or candidate has any real principles that would not be immediately jettisoned for perceived political gain.

Posted by: Calif. Capital Defense Counsel | Jun 29, 2012 11:23:57 AM


Are you a 6-year-old? Do you actually believe anything Romney says?

Do you have a beef that you actually understand in your own mind? Or, do you just spout talking points you hear on the Fox News Channel and the Drudge Report?

If someone puts on a red-colored Republican jersey, is that all it takes for them top win you over?

Posted by: Shave Stevenson | Jun 29, 2012 12:54:25 PM

Shane, CCCP,

Do either of you bother to read or do you only project what you wish people had said?

Did I say anything to the contrary that Romney is a politician who has no core beliefs beyond what will get him elected?

What I DID say is that he will repeal Obamacare, assuming he has the House and Senate. He is running on it, it is good politics, and he will be finished if he does not, in the mold of HW Bush with "Read my lips..."

That you read some deep affinity for Romney in my words only shows that the two of you are the ideologues here (a typical Alinsky ploy, accuse others of what you are guilty of).

A comment was made that Romney would not benefit from this politically because of Mass healthcare. I stated that it was a typical eggheaded comment based on your wishes rather than reality. To the degree that this issue resonates with the voters, all that matters is who will repeal it and who will not. It benefits Romney because he is running on repeal. Whether he would do so if he could not make hay politically is irrelevant.

Now grab your left ear with your right hand, your right ear with your left hand and pull your heads out of your backsides. Perhaps you can then comment on my points rather than your strawman.

And that this is the biggest tax increase in American history with 75% being burdened on the middle class is not a Fox News or Drudge Report talking point. It is from the CBO.

Posted by: TarlsQtr | Jun 29, 2012 2:14:03 PM


Do you think your still fighting the cold war or something?

You're obviously just a hapless member of Team Republican -- a pathetic and nauseating team. Why don't you just admit that to your self?

Are you also one of those frick'n Tea Party nuts?

Posted by: Eric Leslie | Jun 29, 2012 2:58:23 PM

Eric Leslie stated: "Do you think your still fighting the cold war or something?"

Why? Do you have evidence that I do believe that based on any of my statements or do you live in an evidence free zone?

You stated: "You're obviously just a hapless member of Team Republican -- a pathetic and nauseating team. Why don't you just admit that to your self? "

And are we supposed to believe that you are some independent thinker, not a member of any "team?" If not, what "team" do you belong to?

You stated: "Are you also one of those frick'n Tea Party nuts?"

Putting aside your obvious (obvious to anyone with even high school critical thinking skills) genetic fallacy, are you one of those frick'n homeless and unemployed "Occupy" thugs?

I must thank you though. When someone posts nothing but ad hominems, it is a surefire bet that I am on the right track.

Posted by: TarlsQtr | Jun 29, 2012 4:21:43 PM

You try to use "CCCP" as an insult, you dull, noodle-licker.

I'm certainly not on team Obama or team Romney. That is for dolts like you.

Posted by: Eric Leslie | Jun 29, 2012 5:11:06 PM

You stated: "You try to use "CCCP" as an insult...,"

I "try" no such thing. I accomplish it very easily.

You stated: "you dull, noodle-licker."

I am apparently interesting enough to get you to comment at least twice.

You stated: "I'm certainly not on team Obama or team Romney."

You did not answer my question. Other than "Team Obnoxious", what "team" are you on?

Posted by: TarlsQtr | Jun 29, 2012 5:25:26 PM

Eric -- It is highly doubtful that TarlsQtr has any idea that the Cold War is over. You've pretty much described the image I have of TarlsQtr in my mind --- a drooling, tri-cornored-hat-wearing, Fox News Channel watching, thuggish, life-long Republican.

Don't bother TarlsQtr with facts about Romeny's role in creating Obamacare. TarlsQtr now embraces Romney, because Romney says he doesn't like Obamacare, and Fox News Channel and Sarah Palin tell TarlsQtr that Obamacare is bad.

Obamacare does suck. But, TarlsQtr has no idea why.

Posted by: Calif. Capital Defense Counsel | Jun 29, 2012 6:29:15 PM

Cue the captain of "Team Obnoxious" above, right on cue.

Posted by: TarlsQtr | Jun 29, 2012 8:00:36 PM

Erika: : this is why I raise Roe.

Laurence Tribe — Harvard Law School. Attorney for Al Gore in 2000.
“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

Edward Lazarus — Former clerk to Harry Blackmun.
“I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather...”
“[A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible.”

Michael Kinsley -- Editor of The New Republic, formerly of the LA Times.
“Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching.”

Kermit Roosevelt — University of Pennsylvania Law School
“[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result….”

I've got loads more, as well as references, as you wish.

Posted by: Adamakis | Jun 29, 2012 10:49:27 PM

Eric, I'd say his Alinsky reference puts Tar with the Newt Gingrich nuts.

Posted by: John K | Jun 30, 2012 8:08:24 AM

The joy in Thursday's news was seeing the slack jaw, dumbstruck look on conservatives faces. They'd never before seen one of their own break ranks and hadn't a clue as to how to react. No talking points to parrot or anything.

I hope Erica is wrong about the ruling, but if she's right Roberts has outsmarted a lot of really smart people.

Posted by: John K | Jun 30, 2012 8:19:54 AM


Posted by: John K | Jun 30, 2012 8:22:21 AM

John K stated: "Eric, I'd say his Alinsky reference puts Tar with the Newt Gingrich nuts."

Says John as he uses one of Alinsky's "Rules for Radicals." You people are so predictable it is comical. You have Shane, CCCP, Eric, and now you and not one of you have made a single comment regarding if my analysis is right, wrong, or somewhere in between. Just a bunch of ad hominems, the weapon of choice for someone whose quiver is bereft of arrows.

Do you have a substantive comment about MY POINT or are you in the same pathetic mold as our other ad hominem masters?

Would YOU care to show how my comments are a full-throated endorsement of Romney (as your associates claim) or will you just hide behind another ad hominem?

Care to show how y'all are NOT using Alinskyite (whether you know it or not) tactics?

Y'all are as deep as a mud puddle and are too unaware to even know it. Watching MSNBC, listening to NPR, and cheering the criminal "Occupy" leeches while peeing yourselves because someone, somewhere, may be watching Bill O'Reilly.

Sure, John. You have a person in this conversation that previously said Bill Otis is worse than Jerry Sandusky yet you choose to interject and call ME "nuts." Whatever you do, keep on believing that you are some independent and intellectual thinker, one of the "really smart people" that Roberts may have outsmarted.

Posted by: TarlsQtr | Jun 30, 2012 11:06:26 AM

Not interested, Tar. Misspent several hours of my time a coupe of years ago attempting without success to communicate with the regulars at TownHall.com. And my guess is that I don't have to explain to you what TownHall.com is all about.

Posted by: John K | Jun 30, 2012 12:03:23 PM

John K stated: "Not interested, Tar."

So, you interject yourself into a conversation without invitation and then pick up your ball and go home when challenged. How junior high of you.

But you did validate my assumption about you. You are not capable of anything but ad hominems when your comments are challenged. I teach critical thinking to college freshmen who could see that.

Or, again, you could just prove me to be the big Romney supporter you claim I am. (Hint: I could not even vote in the GOP primary in my state.)

Or, you could point to my comment above that is more "nuts" than CCCP's stating that Bill Otis is worse than Sandusky. But again, you will not because you cannot.

And keep trying to convince yourself that only the "other side" is a bunch of mind-numbed Fox News zombies when you are reading the Huff Post, listening to NPR, or watching MSNBC. I'm sure you are dumb enough to buy it. In fact, it is obvious you already have.

Posted by: TarlsQtr | Jun 30, 2012 1:47:42 PM

The breaking news was definitely entertaining to watch and proved to me how both sides jumped on different outcomes early.

Posted by: John S | Jul 6, 2012 11:18:54 AM

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