The Supreme Court, Obamacare, and the Future

Official 2005 photo of Chief Justice John G. R...

Official 2005 photo of Chief Justice John G. Roberts (Photo credit: Wikipedia)

Ok, I’ve had a bit of time to reflect (and read) on the decision now. I figured out quite a while ago that lawyers use words in such strange ways that you need one to translate, so I was waiting for Dan Miller, and I’m nobodies political strategist, so I lean on others.

If I’m reading this right, The Court put a limit on the Commerce clause today, that’s good, not as good as overturning Wickard, but good. In addition they told the administration that if they want to raise taxes for healthcare they could but, it would be explicity be a tax, one of the largest tax increases in history.

From Dan Miller in Panama

Supreme Court Holds ObamaCare Individual Mandate Unconstitutional.

BUT unexpectedly upholds ObamaCare 5:4 as permissible under the taxing authority granted to the Congress by the Constitution. Chief Justice Roberts sided with the librul wing of the Court and wrote the majority opinion. Justices Kennedy, Thomas, Scalia and Alito dissented,
opining that the entire law should be struck down.

In rejecting the Commerce Clause as a proper predicate for the Individual Mandate, the majority held that

The individual mandate . . . 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. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. 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.

Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure to purchase health insurance, neither can it be upheld as a “necessary and proper” component of the insurance reforms. The commerce power thus does not authorize the mandate.


The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness. (Emphasis added, internal citations omitted.)

My preliminary reaction is that Chief Justice Roberts’ majority opinion is contrived nonsense; my horse indicated that he agrees with my preliminary assessment.

Read the entire article from Danmillerinpanama here.

And that brings us to Justice Roberts motives. The best read I’ve seen so far seems to come from Erik Erickson of RedState.


First, I get the strong sense from a few anecdotal stories about Roberts over the past few months and the way he has written this opinion that he very, very much was concerned about keeping the Supreme Court above the partisan fray and damaging the reputation of the Court long term. It seems to me the left was smart to make a full frontal assault on the Court as it persuaded Roberts.

Second, in writing his case, Roberts forces everyone to deal with the issue as a political, not a legal issue. In the past twenty years, Republicans have punted a number of issues to the Supreme Court asking the Court to save us from ourselves. They can’t do that with Roberts. They tried with McCain-Feingold, which was originally upheld. This case is a timely reminder to the GOP that five votes are not a sure thing.

Third, while Roberts has expanded the taxation power, which I don’t really think is a massive expansion from what it was, Roberts has curtailed the commerce clause as an avenue for Congressional overreach. In so doing, he has affirmed the Democrats are massive taxers. In fact, I would argue that this may prevent future mandates in that no one is going to go around campaigning on new massive tax increases. On the upside, I guess we can tax the hell out of abortion now. Likewise, in a 7 to 2 decision, the Court shows a strong majority still recognize the concept of federalism and the restrains of Congress in forcing states to adhere to the whims of the federal government.

Fourth, in forcing us to deal with this politically, the Democrats are going to have a hard time running to November claiming the American people need to vote for them to preserve Obamacare. It remains deeply, deeply unpopular with the American people. If they want to make a vote for them a vote for keeping a massive tax increase, let them try.

Read the entire RedState Article here.

So there is plenty of fodder here for politics. If Mitt Romney is more than a weathervane he should be able to put up a lot of hay with this. We’ll see.

It needs to be repealed in its entirety but, that’s not going to happen in this Congress, so start working on it.

If you are interested, here is the direction I think we should proceed in. Repeal and Deregulate


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16 Responses to The Supreme Court, Obamacare, and the Future

  1. giliar says:

    Excellent analysis,NEO! Once the dust settles on this and conservatives get over being angry with John Roberts, they will realize he handed them (and Romney) a big fat gift all tied up with a bow.


  2. Freedom, by the way says:

    I find it very troubling if Roberts allowed the image of the supreme court to be a factor in this ruling. They are supposed to be ruling on the constitutionality of cases brought before them, not worried about the court’s public image. He’s not there for PR.


    • I don’t disagree, Freedom, but, I think it might be more than PR. Look how the regime has sidestepped Congress at every turn. I think he’s trying to protect his institution,


      • Freedom, by the way says:

        well, Roberts picked a very bad case to excert his power–if that was part of what he was doing.


        • Maybe, but the more I think about it, the more I think Roberts just elected Romney, and possibly appointed up to 3 Conservative Justices.

          I, like you, think this law was patently unconstitutional but finding it so could have made the biggest mess on the Court since 1936 when Roosevelt threatened to pack the Court.

          All in all, the Commerce clause is limited and the power to tax is expanded only marginally. This throws it back into the political arena where it belongs. if we can’t win with this huge tax increase on Obama’s doorstep, we don’t deserve to.

          Full repeal is the real answer.


      • In addition, since it a tax, repeal is now subject to reconciliation and not subject to filibuster. There are some silver linings in there, Freedom, all is not lost, just yet.


  3. JessicaHof says:

    As an observer from the UK, this seems so politically-motivated a decision that only lawyer-speak could hide it. If Obama gets in again and controls nominations to the Supreme Court, there’s surely very real danger?


    • I think there’s a lot of that in this matter. The administration has obviously been playing politics with it from day 1, Our republican are only marginally better.

      In some ways I think the Court is trying to protect itself while making a decision that throws it back to Congress.

      This should, I think, give Romney the issue for the election, and the election, but its such a mess, and so partisan that its hard to predict.

      Thanks for dropping by, I like your site and find your comments on “Public Catholic” very apt.


      • JessicaHof says:

        Thank you. I do feel for American Catholics so much. This is such a direct challenge to the beliefs of the Church, and even those who most want to compromise and find a consensus are finding this administration won’t do that.


        • I completely agree. The Bishop’s (and others) lawsuits on that assault continue, overturn could have stopped them.

          This administration idea of compromise seems to be “Do what your told”

          Well, as you guys found out a couple of centuries ago, Americans are a fractious and stubborn lot, it in our genes, inherited from England (especially the Dissenters).

          We’ll win through, I think but, it’ll take a while and distract us from other things.


        • JessicaHof says:

          Yes, I love that American ‘can do’ spirit, it is what has made your country so great. Anyone who thinks Americans can be pushed about is in for trouble anyway, and anyone who thinks American Catholics can be pushed around deserves the trouble they are buying. My prayers are with you.


      • Thanks,we always need them. If there’s anyone more unwilling to compromise than a Catholic, it’s a Lutheran (like me) and that person is also an American, well, you’ll find out, quickly.

        It’s funny, an old world is starting to gain currency amongst us with regards to this fight. That word is Christendom, the administration has managed to unite almost all of our various sects, congregations, and whatnot, except for the ones that believe that Christianity is an hour a week proposition.


  4. Pingback: SCOTUS: ObamaCare Decision is Not a Victory for Obama! – Patriot Warrior

  5. JessicaHof says:

    Yes, some good comes from this evil – faithful Christians come together to fight for what is right and true. Sometimes Satan can be too clever for himself.


  6. Pingback: The Supreme Court, Watchtowers, and Anniversaries | nebraskaenergyobserver

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