StrangeSox

QUOTE (Cknolls @ Jun 28, 2012 -> 01:50 PM) So Romney wins and tells HHS fuggedaboudit. Tells IRS not to collect the "penalty". He has some ability to that, yes. It's essentially what happened with the EPA under Bush.

QUOTE (Balta1701 @ Jun 28, 2012 -> 01:48 PM) The word choices in Kennedy's dissent suggests that it might well have been written as a majority opinion prior to a flip by Roberts. It even refers to the arguments of Justice Ginsberg as being from "The dissent". David Bernstein on Volokh was conspiracy-mongering on that early on. Two problems. First, Ginsberg's opinion is a partial concurrence and partial dissent and is listed as such. She dissented from Roberts on the Commerce Clause section while the STAK dissent agreed with him. Second, were the STAK staffers too incompetent to do a "find and replace?" This is just being used to feed the "Obama bullied Roberts into this decision" narrative.

QUOTE (southsider2k5 @ Jun 28, 2012 -> 01:44 PM) I have to laugh at this keeping coming up, when Obama was given universal praise by the left for switching positions on gay marriage. Romney has obviously switched positions here, just like Obama did. Universal praise, except the criticism by me and others on this board for taking so god damned long to come to this position. Romney has also not disowned Romneycare, he's making a federalism argument. It's not exactly analogous.

QUOTE (Balta1701 @ Jun 28, 2012 -> 01:41 PM) Bah, no one's going to pay that much attention unless Obama makes that a feature of his debate defense. Romney still felt it fully appropriate to go out today and reiterate that on day 1 he'll repeal the full bill without saying what he would do instead, which is all he's said for the last year. He'd also make the most popular components, guaranteed issue, community rating and elimination of lifetime caps, part of his solution. But without a mandate. And less government involvement.

QUOTE (Alpha Dog @ Jun 28, 2012 -> 01:29 PM) Kinda like him telling Justice what laws NOT to enforce. Still no outcry there either. The federal executive has leeway in that regard, as the majority in Monday's AZ immigration ruling points out. States, however, do not have the authority to nullify federal laws. Nor does this explain or excuse DeMint's attacks on the court, calling the bill unconstitutional in spite of their ruling and advocating for actions that SC's in the past have ruled unconstitutional. edit: or Rand Paul's attack on the legitimacy of the courts:

Absolutely nothing wrong with disagreeing with it and fighting it policy-wise. The court "called balls and strikes," as Roberts said in his confirmation hearings, but did not interject into policy. Republicans are free to continue to press for the law to be repealed via the legislature. But that's not what DeMint is saying. He's saying the law is still unconstitutional regardless of this ruling. He's specifically disregarding what this ruling has said; the analog would be that it was struck down but Obama still pressed forward on implementation anyway. And he's calling on governors of states to simply refuse to enact the policies proscribed by this law. State nullification sorta died out after 13A, but he wants to bring it back.

Instead they're coming out, saying the bill is still unconstitutional and calling for state-level nullification: http://livewire.talkingpointsmemo.com/entr...se-to?ref=fpblg I anticipate the conservative outrage over someone challenging the legitimacy of the court.

QUOTE (southsider2k5 @ Jun 28, 2012 -> 12:28 PM) But many of them wouldn't support Romney. That could change now. But they'll still be motivated by Obama hatred. That's always been cause #1. It's certainly possible, and that was my initial reaction, but I still think this is a net-gain for Obama in November. A loss would have been hugely demoralizing for a lot of dems. Also the irony of a nationalized Romneycare being upheld as motivation to vote for Romney is pretty funny.

QUOTE (Soxbadger @ Jun 28, 2012 -> 12:24 PM) The Supreme Court ruling is merely the status quo. Many believe Congress already had the power under the commerce clause to basically do whatever it wanted. But this ruling does change that since Roberts got to explicitly reject the Commerce Clause justification.

QUOTE (southsider2k5 @ Jun 28, 2012 -> 12:14 PM) I think this could fire up some of the far right wing that was tepid on Romney. Those people were already very anti-Obama, though.

QUOTE (HickoryHuskers @ Jun 28, 2012 -> 11:47 AM) Anybody buy the theory that the "losing" side in this decision will actually get a boost in November? Not really.

Schadenfreude is never principled or classy.

Orin Kerr: The Mandate Survives Because It's Not Really a Mandate edit: it appears that Roberts buys into the activity/inactivity distinction, which is why he would not rule this constitutional on Commerce Clause/N&P grounds.

Ginsburg cites Scalia's opinion in Raich (federal overrule of states on marijuana a-ok) in her concurrence: I have no doubt this was done very intentionally.

QUOTE (Y2HH @ Jun 28, 2012 -> 10:38 AM) IMO, Roberts is the only justice on that panel which I believe is actually fair minded versus basing his decisions strictly on his political viewpoints (see the rest of the supreme court for a good example of this). It's why every semi-partisan law automatically goes 4-4 and he's the deciding factor...always. Kennedy's typically the "swing vote" in the Roberts court, not Roberts.

QUOTE (Y2HH @ Jun 28, 2012 -> 10:14 AM) Roberts didn't agree with you. And he was the vote that mattered. Roberts agreed that it wasn't a Commerce Clause "mandate" but a tax.

QUOTE (Y2HH @ Jun 28, 2012 -> 10:09 AM) It's one thing if they call it a tax...it's another entirely if they call it a mandate, which is what they originally attempted to do...which was wrong, and IMO, illegal. If it's a tax, that's fine...but using the word mandate is where they went wrong. Edit: Some will say this is semantics...but it's not. Just call a tax a tax instead of playing word games to skirt around the fact you are taxing people for a service. "Mandate" doesn't appear in the text of the bill.

Tom: Here is the money quote on the fifth vote to hold that the mandate is not justified under the Commerce Clause (recognizing that doesn't matter because there were five votes under the Tax Power): "The power to regulate commerce presupposes the existence of commercial activity to be regulated." That will not affect a lot of statutes going forward.

QUOTE (NorthSideSox72 @ Jun 28, 2012 -> 09:49 AM) My first post in the Buster in months... I've said all along, the nomination of Roberts has never bothered me as much as Alito. I don't agree with all of Roberts' decisions (Citizens United in particular), but Roberts has always been methodical and disciplined in his interperetations (unlike Scalia who is an unabashed partisan, and Alito who has always been a windsock and just takes the Republican view on things). So while this is a surprise, it isn't as big of one for me as it appears to be for others. I was 50/50 on Kennedy and Roberts on this. I still don't agree with the overall wisdom of the law and the way it was engineered - I think there were better ways to handle this and do some good. And I've said all along if this was simply paid for as a tax, it would stand up just fine - as it did. I just wasn't sure the court would see it as a tax, because it sort of is and sort of isn't. That is what made the whole thing a question. I'm glad the parts of PPACA that are positive are upheld, but skeptical of what doors may have been opened for required purchase of a private product. It will be interesting to see if Congress ever tries to push the door open further on that, and how far the court will stretch the limits of what a tax really is, versus required commerce. As for the Presidential election, I think this helps Obama, but only a little. The economy at large is still far and away issue number 1, particularly in the area of jobs (or lack thereof). Obama is in the poll position at this point, but if the economy's growth stops or regresses as the summer and fall go on, I can still see Romney pulling off a victory. Great post.

QUOTE (Athomeboy_2000 @ Jun 28, 2012 -> 09:53 AM) Forgive me, I am neither a legal or health care expert: could this ruling pave the way to a potential single payer system in the future? Not really. An expansion of Medicaid to all would have been pretty unquestionably Constitutional, not counting the fringes who think Social Security and Medicaid themselves are unconstitutional. If anything, this actually makes it less likely in my opinion. We've "reformed" health care now, so no one is going to be picking up the banners for a major fight to get single-payer. Had it been struck down, you'd have a renewed push to do something about it. I don't think that would have happened any time soon, though.

Lyle: The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress's authority to pass social welfare laws. Using the tax code -- especially in the current political environment -- to promote social welfare is going to be a very chancy proposition.

http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

Amy Howe: In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding.

Lyle: In opening his statement in dissent, Kennedy says: "In our view, the entire Act before us is invalid in its entirety." The minority would have struck down the entire thing.

It doesn't matter how you get insurance, just that you get insurance. Employer-provided coverage is ok, as is Medicare/Medicaid or individual plans.