The Radicalism (And Hackery) of the Health Care Cases Dissenters

As mentioned below, the four dissenters to today’s health care ruling issued an unusual jointly signed opinion of quite remarkable radicalism. It would have radically re-shaped the constitutional order by not merely ruling the individual mandate as beyond the power of the federal government to regulate interstate commerce, but taken the even more radical step of limiting the federal government’s spending powers by preventing it from expanding Medicaid. Taken together, this would constitute a radical transformation of the American constitutional order. And because of these defects, the dissenters would have ruled the PPACA “invalid in its entirety.” Here is their justification for finding that the allegedly invalid sections could not be severed from the rest of the bill:

Major provisions of the Affordable Care Act—i.e., the insurance regulations and taxes, the reductions in federal reimbursements to hospitals and other Medicare spend- ing reductions, the exchanges and their federal subsidies,and the employer responsibility assessment—cannot remain once the Individual Mandate and Medicaid Expansion are invalid. That result follows from the undoubted inability of the other major provisions to operate as Congress intended without the Individual Mandate and Medicaid Expansion. Absent the invalid portions, the other major provisions could impose enormous risks of unexpected bur- dens on patients, the health-care community, and the federal budget. That consequence would be in absolute conflict with the ACA’s design of “shared responsibility,” and would pose a threat to the Nation that Congress did not intend.

This is, taken in isolation, true. But it also renders the logic of the dissent a complete shambles. The argument is that the mandate and the Medicaid expansion are not valid regulations of interstate commerce, but that they are also so essential to a broader regulatory scheme that the entire act must fall. As long as McCulloch v. Maryland remains good law, this argument is transparently wrong. If regulating “inactivity” is necessary to legislation addressing a problem that (as the dissent concedes in its first paragraph) Congress is empowered to address, then it is therefore constitutional.

And in addition to the internal incoherence of the opinion, it’s worth noting as well that Kennedy and Scalia both approved of the application of criminal sanctions to people growing medical marijuana for their own use. The positions of Thomas and Alito are radical, but are at least consistent. Kennedy and Scalia had no problem with a far more dubious use of federal power as long as it was being exercised by a Republican administration. This dissent is a particular embarrassment to both.

…I would also like to note that Ruth Bader Ginsburg is awesome:

The Necessary and Proper Clause “empowers Congress to enact laws in effectuation of its [commerce] powe[r] that are not within its authority to enact in isolation.” Raich, 545 U. S., at 39 (Scalia, J., concurring in judgment). Hence, “[a] complex regulatory program . . . can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal.” Indiana, 452 U. S., at 329, n. 17. “It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.” Ibid. (collecting cases). See also Raich, 545 U. S., at 24–25 (A challenged statutory provision fits within Congress’ commerce authority if it is an “essential par[t] of a larger regulation of economic activity,” such that, in the absence of the provision, “the regulatory scheme could be undercut.” (quoting Lopez, 514 U. S., at 561)); Raich, 545 U. S., at 37 (Scalia, J., concurring in judgment) (“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power.”

140 comments on this post.
  1. David Kaib:

    Anyone know how much of the predicted increase in insurance coverage is from the Medicaid expansion?

  2. tonycpsu:

    15 million or so.

  3. Jameson Quinn:

    Which is approximately half.

  4. rea:

    The Roberts vote on the issue is dicta, I think, but its clear that there are 5 votes on the Court for a major change in Commerce Clause jursiprudence.

    The old rule was, “a law passed pursuant to the commerce clause is constitutional if Justice Scalia likes the law and unconstitutional if he does not.”

    The new rule is,”a law passed pursuant to the commerce clause is constitutional if Justice Roberts likes the law and unconstitutional if he does not.”

  5. UberMitch:

    I don’t see anything in the opinion to state that they are reporting it styled as The Health Care Cases. Did someone say that is how they are reporting it, or is it going to be Nat’l Fed. of Indep. Business v. Sebelius as the first listed case in the opinion?

    Not to say I don’t like your term, but have any cases been styled like that since the 19th century?

  6. Davis X. Machina:

    Depends on the relative distribution of poor people and states with dickhead governors and/or legislatures.

  7. Jonas:

    Wait, so if the mandate and medicare expansion needed to be struck down, they believe the rest of the law was unconstitutional because it might possibly cause federal deficit spending? Really? That’s the reasoning? I don’t know whether to be happy for the actual outcome or scared that 4 members of the supreme court are unhinged.

  8. firefall:

    So to be fair, only Kennedy and Scalia are shameless hacks. Thomas and Alito are merely unrecondite fascist monsters.

  9. dp:

    As a citizen of Louisiana, I fully expect Bobby Jindal to announce that we will not be expanding Medicaid, thankyouverymuch.

    He’s not just a twit; he’s an asshole as well.

  10. Glenn:

    Roberts says his commerce clause opinion is not dicta, that it was necessary to determine the scope of the commerce power before reaching the tax question. (I think that’s highly dubious reasoning, but that’s what he says.)

    The really interesting question to me is, why didn’t the 4 dissenters join Roberts’ opinion on the commerce clause, even if they wrote on their own as well, and thus make Roberts’ opinion clearly for the Court? Is it just spite? Only thing I can figure.

  11. TT:

    If that dissent doesn’t doesn’t grab the Obamney-Gush-Bore crowd on the left by the lapels and repeatedly smack them across the face, then I seriously doubt anything ever will get their attention.

    I agree that Obama’s come up short on some very important stuff. But if you want judges on the Supreme Court who will make Nino Scalia look like Bella Abzug, then by all means vote against him.

  12. Glenn:

    I believe that was Jack Balkin’s proposal.

  13. Ken:

    This dissent is a particular embarrassment to both.

    That assumes they possess the ability to be embarrassed. I believe lawyers call this “facts not in evidence.”

  14. David Kaib:

    That is pretty significant.

  15. Joe:

    As to rea/Glenn above, here’s some text from a comment at PrawfsBlawg:

    Roberts writes the following in response to the question about whether the Commerce Clause holding is dicta:

    “JUSTICE GINSBURG questions the necessity of rejectingthe Government’s commerce power argument, given that §5000A can be upheld under the taxing power. Post, at 37. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.”

    I find that rather persuasive.

    Me too, but I’m willing to remain agnostic. It sounds like some act of constitutional doubt required a reading that otherwise might not have been made.

  16. DrDick:

    Especially since the states with dickhead governors have the highest rates of uninsured.

  17. DrDick:

    True.

  18. Anon21:

    I can’t believe John Roberts just saved the Republic… for now. There’s really no telling what harm the Commerce Clause junk is going to do in the future.* But the principle of political action that these dissents embody–that the Supreme Court is literally just an adjunct to a political movement, that you can discard 70 years of settled Commerce Clause precedent and then, for good measure, maybe a century of severability law in order to strike down a duly-enacted federal statute because you don’t think its supporters have the votes to pass it again… amazing.

    This is just no way to run a country. And I’m relieved that Roberts apparently recognized that while also terrified to learn that Tony Kennedy just doesn’t see it. I’m really trying not to be hyperbolic here, but the nation is not in safe hands so long as this group of radicals is within striking distance of a majority. As Scott said: these four were attempting to put over “a radical transformation of the American constitutional order.”

    I think I need to go make a donation to Obama now. A Romney Court could easily send us back to 1935.

    *On that note: I haven’t even finished Roberts’ opinion, but I’m loving how, on page 30, as he describes the individual mandate as a necessary but not “proper” means of effectuating the insurance reforms, he has no case to cite. Hey, we all remember the “proper” component of Necessary and Proper analysis from 1L Con Law, right? I mean, there must be a Marshall opinion or three on this important limitation on one of Congress’s most important powers… right? Nope! It’s just some junk that Ilya Somin made up last year.

  19. efgoldman:

    …I would also like to note that Ruth Bader Ginsburg is awesome:

    Man, she stuck that shiv in so cleanly, she didn’t even nick a rib!

  20. rea:

    I guess, if there are 5 votes on the Court for the proposition that it isn’t dicta, then it isn’t. But of course, it’s rather like there being 5 votes on the Court for a geocentric universe. Eppur si muove.

  21. Sherm:

    Nice catch on Ginsberg’s citations. But her concurring opinion was awesome in numerous ways.

  22. Bexley:

    So who is lined up to make a killing off the wingnuts by selling impeach John Roberts signs?

  23. Anon21:

    To your question: I think (and someone can correct me if I’m wrong) that when one dissents from the judgment, one just never joins any part of the lead opinion (the one announcing the judgment). I don’t know if there’s a logical reason for the practice, but I believe it’s consistently observed.

  24. Both Sides Do It:

    A line from Sin City seems apropos:

    “He wouldn’t feel a thing if she didn’t want him to . . . he feels it”

  25. IM:

    Quick or Red State will grab the market.

  26. notjonathon:

    Perhaps it’s the hackery that reminded John Roberts that history will call it “The Roberts Court.” To know that it contained some of the weakest legal opinions in a century might have moved him to try to distance himself in a small way from Scalia and Thomas.

    Of course, retaining this law is of no consequence to the corporate overlords, our betters and masters.

    I can’t even return home from Japan, because I pay about $1500 a year (now that I’m retired) for health insurance here. My wife’s doctor visits cost about $30 a month for her hypertension and cholesterol medications. I have a thyroid deficiency, but now that I’m over 70, visits to my doctor cost me about $8 a month.

    For those who worry about choice, I live in a medium-sized city (pop. 700k), and there are at least seven doctors and two hospitals within a 15 minute walking radius. Not to mention even more dentists (dental is also covered). I may visit any one of them if I wish. Or I could go to Osaka or Tokyo (if I were so inclined) and see virtually any doctor there.

    Doctors here are still listed among the highest taxpayers every year. They might not usually make millions, but they are still near the top of the working class.

  27. Brien Jackson:

    So what you’re saying is that the fate of the 20th century rested squarely in the hands of John Roberts?

    Of all the days to be out of liquor.

  28. Scott Lemieux:

    Yes, I don’t mean to imply that the whole thing wasn’t awesome.

  29. Joe:

    given the rulings today, that really isn’t that off

  30. Hogan:

    It’s objective embarrassment. Doesn’t matter whether they experience it or not.

  31. actor212:

    Did Ginsburg really lay the smackdown directly on Scalia? Really?

  32. dp:

    He might say it’s not dicta, but it’s not necessary to his conclusion, so it is dicta.

  33. NonyNony:

    Doctors here are still listed among the highest taxpayers every year. They might not usually make millions, but they are still near the top of the working class.

    Ah but in the USA how many doctors would consider themselves “working class”? Sadly in the US “working class” doesn’t actually mean “works for a paycheck”, it means something else entirely.

  34. dp:

    She’s the bestest Supreme Court justice we have; I pray for her continued health daily.

  35. NonyNony:

    Why does that surprise you? Somehow I’ve gotten the impression that Ginsberg has been tired of Scalia’s bullshit for a long time. For some reason I was thinking she’d done this to him before.

  36. Anon21:

    Nah. Passive aggressive quoting of another Justice’s prior statement that flies in the face of their latest opinion is a time-honored SCOTUS tradition. If you confine yourself to weight of authority parentheticals, you’re keeping the kid gloves firmly on.

  37. David M. Nieporent:

    You are confusing politically necessary with regulatorily necessary. The fact that Congress would never have been politically willing to pass A without B does not mean that B is constitutionally necessary in order to accomplish A.

  38. Glenn:

    Hm, interesting. Never actually noticed that practice before.

  39. Eli Rabett:

    Remind Eli again how beating the crap out of the hacks has no effect. They ducked (or at least two of them did)

  40. The Tragically Flip:

    IANAL, but this doesn’t appear correct. Pretty sure I have seen opinions listed as “concurring in part, dissenting in part” and so forth. That’s where we get strange plurality court opinions, because there was no majority opinion.

  41. Richard:

    But it is exceedingly likely that the almost all of the states will sign up for the expansion even if they don’t use all their Medicaid funding

  42. mark f:

    Jonah Goldberg’s Twitter feed is hilarious right now.

    Jonah thinks Roberts just invented Congress’s power to tax, and he’s going to listen to talk radio for a while before he writes a column on the decision.

  43. Richard:

    But dicta in a Supreme Court decision is still a ruling and cannot be ignored. More importantly, I dont think that this part of the decision matters much. Assuming that Congress wants to regulate inactivity (wants you to eat broccoli or join a gym), it can enact a tax against you if you dont engage in the activity they want you to engage in.

  44. John:

    “Working class” has never meant “works for a paycheck” in any country. It might mean “works for hourly wages,” I guess, but obviously doctors are either salaried or small business owners.

  45. Anon21:

    Remedial assignment: go back and read Comstock and McCulloch. Congress decides the means.

  46. joe from Lowell:

    The “mandate” wasn’t passed for political necessity, but to address the free-rider problem.

    I think you’re misreading Scott’s phrase “necessary to legislation.” He is talking about regulatory necessity.

  47. dave:

    You are also confusing the necessity of the entire regulatory scheme with the necessity of the mandate. Everyone (but you apparently) believes the overall scheme is constitutional. The question was whether the mandate was necessary to the actual scheme implemented. The question was not, as you suggest, whether there was a more permissible overall scheme.

    You are confusing “necessary means” with “only possible means” or “perfect means” or “best possible means” Congress does not have to establish a perfect or “best possible” regulatory scheme. It need only establish a constitutional one and if it does it is entitled to include any otherwise unconstitutional provision that is necessary to effectuate its constitutional scheme.

    Please identify an alternative to the mandate that would keep the rest of the scheme intact and functioning.

  48. joe from Lowell:

    Eli, I would like to buy your tiger-repelling rock.

  49. David Kaib:

    What makes you say that?

    As a program that targets the poor, Medicaid expansion isn’t terribly strong politically, and the Republicans seem committed to stopping implementation at all costs. And breaking budgets seems to be a conscious strategy. (I’m not certain – this are my initial thoughts).

  50. Davis X. Machina:

    Arizona didn’t even join Medicaid till ’82….

  51. notjonathon:

    Exactly. One way the overlords have extended their rule is to create a divide between the slaves at the top (the house slaves) and the field slaves. Little do the doctors know that their interests are really closer to the workers than to the masters. And of course the field slaves are kept in a state of ignorance that prevents them from seeing how exploited they are.

    I’m using somewhat inflammatory terms for effect, of course, but the average doctor has a lot more in common with the mechanic than he does with Larry Ellison (who just purchased an entire Hawaiian island) or the Koch brothers.

    Even Mittens is only worth a baronetcy in the New World Order. Notice how he name drops–”I have good friends who are NASCAR owners.” Suffice it to say, he’ll never be sole owner of a major league sports franchise with his puny $200M. Sure, they’ll let him in on the fringes of the club, but unless he can collect some serious presidential swag, third-world style (I’m not talking the 10′s of millions a Clinton can grab, but something on the order of a hundred times higher), he’ll always be a bit player in the new aristocracy.

  52. catclub:

    Medicaid also pays for nursing home care of parents of the white middle class.
    There is some clout there.

  53. Anon21:

    Flip: Correct, but those concurring in part, dissenting in part opinions end with “concurring in the judgment,” if there was any joining of the lead opinion at all (again, I think). Bakke is maybe a good example, although it had the weird feature of the two blocs each concurring in the judgment in part. But since the liberals got more of the judgment they wanted, you see White (one of the libs, on this issue) joining part of the opinion, and the cons joining none of it, even though they agreed with about half of it.

    Open to a counterexample of a Justice dissenting from the judgment in full but explicitly joining some part of the lead opinion.

  54. Both Sides Do It:

    I don’t think your argument does justice (heh get it) to the inanity of the actual logic used in the dissent.

    Because their argument specifically anticipates the objection you make. “The necessary and proper clause can’t be used in an area outside the scope of the enumerated power it’s derived from. There are several recent cases policing the outer edge of the scope of the Commerce Clause and striking down laws which don’t fall under the necessary and proper clause on that basis: Printz, Lopez, Morrison. Obamacare is unconstitutional in the same way.” This is not obviously insane.

    But what is, objectively, is their argument for why the activity/inactivity distinction falls outside the scope of the Commerce Clause: that it would create the thing that it wants to regulate, and so would result in unlimited federal power. State sovereignty, federal police power, all that shit. The stuff Thomas used as part of the basis for a dissent in Raich, but which Scalia didn’t even address in his concurrence.

    So you’re both giving them not enough and way too much credit, I think.

  55. Joe:

    Orin Kerr at Volokh Conspiracy summarizes the tax v. commerce / “mandate” reasoning of Roberts.

    There is a sorta logic there: the government can tax to encourage behavior while is limited in advancing the same ends in various other ways. It is a limited means of use of power.

    But, even if you accept the overall idea, this specific use of the CC power remains proper, even if some other one (e.g., requiring a person to buy broccoli since it promotes health) might not be. Anyway, whatever.

  56. Richard:

    They dont get any of the new Medicaid funding if they dont expand. So that money will go to other states. I’m no expert but it looks like signing up for the expansion doesn’t cost the states any money so there is only a financial loss if they dont sign up (at least, thats the way I heard it described on the radio this morning). Probably best to get more info before making any definitive conclusion about the impact of this part of the ruling.

    Main thing doesn’t change however – this is a good day for liberals and for reelection chances

  57. Rick Venema:

    This is a sad day for our nation and our Constitutional Republic.

    John Roberts has betrayed his supporters. Not since Benedict Arnold has our Republic seen such a dastardly act of backstabbing.

    Perhaps now it is time for the state governments to effectively nullify this federal intrusion by refusing to implement any of the ObamaCare provisions.

    In not, our nation may be lost to the bureaucrats, federal agents, and poverty pimps.

    As Sir Alex Fraser Tyler said about the fate of a democracy:

    “”A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidate promising the most benefits from the public treasury, with the result that a democracy always collapses over loose fiscal policy, and is always followed by a dictatorship. The average of the world’s great civilizations has been 200 years. These nations have progressed through this sequence: from bondage to spiritual faith; from spiritual faith to great courage; from courage to liberty; from liberty to abundance; from abundance to selfishness; from selfishness to complacency; from complacency to apathy; from apathy to dependency; from dependency back again to bondage.”

    Our Republic was founded over 200 years ago. I cannot help but think how chilling these words are in light of this tyrannical decision.

    If this law is not repealed through the election of a new President and a conservative Congress, we will no longer be a free people.

    Rick Venema
    COLONIAL HEIGHTS, VIRGINIA

  58. rea:

    It’s the 21st Century, now.

  59. rea:

    Remind me, which of the 4 semi-liberals is among the 2 hacks that ducked?

  60. IM:

    Nullification, what? How did this turn out the last time?

    (I will start to sing Marching through Georgia any moment now)

  61. mark f:

    tyrannical decision

    A law passed by a majority in the democratically elected House, a supermajority in the democratically elected Senate, signed by the democratically elected president, and affirmed by five justices appointed with the approval of the Senate by three separate presidents representing both major parties, subject to any repeal a future set of elected legislators may choose to take? Tyranny indeed.

  62. Craigo:

    1. It’s Alex Fraser Tytler.
    2. He never said that.
    3. Supremacy Clause.

    Craigo,
    RIGHT BEHIND YOU

  63. Joshua:

    u mad?

  64. Boudleaux:

    At least you said “buy” broccoli so that I didn’t have to encounter the drooling inanity of the “eat” broccoli analogy again. And for this I thank you.

  65. Anonymous:

    Not since The Hindenberg has this website seen such a dastardly act of gas-baggery.

    (Pretty sure this guy is a parody troll. )

  66. NBarnes:

    You don’t understand Raich any better than Scalia does.

  67. MAJeff:

    http://farm6.static.flickr.com/5044/5278562309_0ec26a0c0d.jpg

  68. Aaron:

    We’re dealing with portions of the majority opinion, but with portions that the concurring justices did not join. It’s not enough for Roberts to say “This is necessary to my conclusion” – it’s necessary for five justices to say that.

    Had the four dissenting justices joined the “activity/inactivity” portion of the opinion you would have a clear 5 justice majority upholding that analysis. Instead you have to take Roberts’ analysis, and see if you can cobble together four more supporting votes out of the separate opinions and analyses of the dissenters – you need to search out the plurality.

    On the whole, though, it’s a something of a moot point. Congress has been warned by the court that it may put form over substance on Commerce Clause issues, and as a result it will choose its words carefully such that it its laws regulating interstate commerce – whatever their actual effect – meet that standard. (“We’re not saying you have to buy feed grain from somebody else – we’re only saying you can’t grow your own.”) I’m alluding right there to Wickard v. Filburn – it’s not a difficult game for Congress to play. More than that, there are no similar issues on the horizon – it’s not a game Congress needs to play.

  69. Anonymous:

    Of course this was a reply to the gentleman from VIRGINIA.

  70. Boudleaux:

    Wha? A Supreme Court justice is beholden to his “supporters?” So that whole “lifetime tenure / insulation from poltical pressures” thing . . .

    I think you’ve said too much, Rick of COLONIAL HEIGHTS, VIRGINIA.

  71. Cheap Wino:

    Yes, I’m sure you’re familiar with Alex Fraser Tytler and his body of work since you cannot accurately quote him or spell his name right.

  72. IM:

    Nullification

    The party of Calhoun indeed.

  73. Anon21:

    he mad, bro

  74. Aaron:

    The problem with the idea that a Supreme Court opinion will wake people up is that… nobody cares. Oh, right, about 5% of the public follows this type of issue and cares about the outcome, and thus understands the importance of who picks Supreme Court Justices – but that’s not enough to convince the other 95% of people that they should consider the Supreme Court when choosing a president. (Yes, I’m making up that statistic, but I think it’s in the right ballpark.) Also, of the 5% or so who do follow the court and do care about the selection of justices, those with the most influence seem to come from the political right.

  75. Boudleaux:

    How does the poverty pimping work, exactly? Do I line up a stable of “poverty whores,” who then go out and turn poverty tricks and give me my mofucking money?

    Is someone who uses the phrase “poverty pimps” and lives in COLONIAL HEIGHTS, VIRGINIA, automatically a racist?

  76. liberal:

    “It can only exist until the voters discover that they can vote themselves largesse from the public treasury.”

    Yawn. Landowners reap 10-20% of GDP, in exchange for nothing, yet I don’t see anyone whining about it.

  77. NonyNony:

    This actually isn’t really true. There hasn’t been an effort to “create” a divide – it’s just that doctors and other professionals used to have more in common with landowners and factory owners than they did with hourly wage earners or salaried employees (like bookkeepers).

    Over the last century that has shifted – the large business owners have outsized money and power in such a way that the professional classes have far more in common with the wage earners and salaried employees than they do with the business owners. Including the fact that a lot of doctors have found themselves unable to operate as small business owners anymore and have become employees of hospitals and other health care companies to make a living.

    Perception lags reality though. Hell small business owners have a hell of a lot more in common with their salaried and hourly employees than they do with the large business owners. The guy who owns and operates the Italian restaurant with 4 employees down from my house probably doesn’t make much more than I do in a year from his business and probably has shittier insurance than I do. But I know that he identifies more with other business owners – or even guys like Mitt Romney – than he does with his wait staff despite being closer in income and lifestyle to them than to the Romneys.

  78. Brien Jackson:

    Yeah, this is what I was thinking. Aside from the fact that Roberts creates a fairly important out via the taxation power, one of the whole points of the anti-broccoli mandate nonsense is that Congress wouldn’t actually do that, so I don’t know that there’s a whole lot of reason to worry about Roberts’ opinion of the comerce clause as it relates to this.

  79. Brien Jackson:

    Exactly.

  80. NonyNony:

    The mortgage exemption is different from the health insurance penalty because SHUT UP THAT’S WHY!!!!

    Or perhaps to be more charitable: The mortgage exemption is different from the health insurance penalty because it is only by arguing semantics that I can pretend to even have a point.

  81. Brien Jackson:

    Five Republicans voting to overturn a duly enacted statute of the other two branches, on the other hand, would have been a veritable orgy of FREEDUM!

  82. guthrie:

    David Brin had a challenge up on his blog a while back, asking whether anyone could give any examples of the people voting themselves a free lunch and bringing down a society as per the quote above. Oddly enough nobody could come up with any examples.
    There were however many examples of corruption, centralisation of money and power leading to an oligarchy and tyrranny.

  83. Colin:

    Wow – John Roberts is TEH WORST since Benedict Arnold? That’s some impressive hyperbole.

    [Also, I can't be the first to notice you can't spell "Venema" without "enema."]

  84. L2P:

    “Dicta” isn’t really a word with any value anymore. For the lower courts, one judge’s “dicta” is another judge’s “controlling ruling.” For the Supreme Courts, a line is “dicta” if the justice doesn’t want to follow precedent, and “essential to the holding” if the justice does want to follow precedent. (c.f any goddamn thing Scalia or Kennedy ever wrote.)

  85. joe from Lowell:

    Like Dad yelling down the basement stairs when the kids get too loud:

    “Don’t MAKE me come down there!”

  86. Scott Lemieux:

    Yes, I have never head of a worse tyranny than democratically accountable majorities and supermajorites passing legislation exercising long-recognized federal powers. It’s worse than Hitler and Stalin put together.

    SCOTT LEMIEUX
    ALBANY, NY

  87. Dean:

    *clapping*

  88. DrDick:

    Perhaps now it is time for the state governments to effectively nullify this federal intrusion by refusing to implement any of the ObamaCare provisions.

    Perhaps, it is time for you to go read the actual Constitution instead of the imaginary one in your head, cracker.

    DrDicK
    PEOPLES REPUBLIC OF MOTHERFUCKING MONTANA
    US of FUCKING A

  89. Jeff Morgan:

    You might make more money with impeach Kagan signs. from Politico

  90. Bobh:

    At the beginning of the dissent’s discussion of the tax rationale for the mandate, the author calls Roberts’s argument “feeble.” Is that level of condescension customary, or is it a breach of decorum?

  91. Boudleaux:

    I think it’s like any other aspect of any opinion. You argue it’s “the law” in your brief, and the judge, whatever the forum, disagrees and says it’s dicta and counts for squat.

    Parties argue all the time about what a case means, whether it is limited to its facts, etc. I’m not sure why John Roberts’ stamping his feet and saying “it’s not dicta!” in an opinion woule be controlling.

  92. Hogan:

    You don’t understand! We voted ourselves largesse from the public treasury by requiring ourselves to buy health insurance or pay a tax penalty! Our doom is inevitable!

  93. olexicon:

    “PEOPLES REPUBLIC OF MOTHERFUCKING MONTANA
    US of FUCKING A”

    This alone adds to your winning the internets streak

  94. Ginsburg’s Concurrence: The Gift that Keeps Giving - Lawyers, Guns & Money : Lawyers, Guns & Money:

    [...] (typeof(addthis_share) == "undefined"){ addthis_share = [];}Even beyond the delightful, subtle skewering of Scalia’s hackery, Ginsburg’s dissent is a tour de force. Among many other great [...]

  95. dl:

    But clearly Scalia et al endorsed Roberts’ inactivity/activity distinction, albeit in a separate opinion.

  96. Cameron:

    I feel obliged to point out that our Republic wasn’t founded until 9 years after Arnold was commissioned into the British Army.

    As for nullification, my family lost enough blood and treasure fighting that the first time around. Nullification lost, Federal power is supreme, and there’s a good documentary about it, available at the public library in COLONIAL HEIGHTS, VIRGINIA
    Enjoy.

  97. NBarnes:

    The mortgage exemption is different from the health insurance penalty because the mortgage exemption gives taxpayer money to people who own property and assets and thus nearly definitionally excludes people that don’t already have money. The structure of the ACA’s coverage mandate suggests that poor people deserve insurance, too. This makes the ACA’s policy approach to the has / has not distinction completely unacceptable to 4 of the 9 members of the SCOTUS.

  98. (the other) Davis:

    I’m not convinced that the whole dicta/holding dichotomy is especially meaningful outside of law school class discussions, aside from the odd obvious examples (e.g., “we hold that” is clearly a holding, and “we don’t reach this issue” clearly indicates dicta). “Dicta” is basically any reasoning you can convince lower courts that they’re not bound by.

  99. (the other) Davis:

    Aaaand I should have read the entire thread before composing my response.

  100. Uncle Kvetch:

    Craigo,
    RIGHT BEHIND YOU

    Delurking just long enough to thank Craigo for a bona fide belly laugh. (I’m easy that way.)

    Now back to my lair to resume plotting the destruction of the traditional family and the usurpation of parental responsibilities by faceless bureaucrats. Hey, it’s a living.

    Uncle Kvetch
    GOMORRAH NY 10036

  101. dl:

    Scalia and RBG are actually great friends, believe it or not. Check out this picture of them on an elephant together.

    http://www.oyez.org/tour/rbg-room/rbg_elephant/

  102. commie atheist:

    I thought you were going to say “who will make Nino Scalia look like Bella Lugosi,” which would be absolutely awesome. Would love to see Scalia turn into a bat and fly away.

  103. actor212:

    This is a sad day for our nation and our Constitutional Republic.

    You keep saying that, but I don’t think those words mean what you think they mean.

  104. actor212:

    On a minor decision, I could see her taking a few slices out of him but this is a decision that will be studied for decades. That’s why it sort of surprises me that she’d rub his nose in it.

  105. actor212:

    Yea, except the decision moves us squarely into the 1920s

  106. Cody:

    He has achieved a new wonderful blog tradition.

    Cody,
    DREAMLAND CALIFORNIA

  107. L2P:

    To be fair, he’s only agreeing with the Supreme Court on what “Necessary and Proper” means as of June 29, 2012.

  108. Colin:

    Yeah, that was my (tacit) point – John Roberts: biggest traitor in the history of the United States [as they exist]. As I said – a bit hyperbolic.

  109. Glenn:

    Oh, so you’re heading up the Traditional Family Destruction Committee. When’s the next meeting?

  110. stratplayer:

    Hyperbolize much?

  111. Darkrose:

    If you’re a poverty pimp, I think the point is they don’t give you your mofucking money.

  112. Uncle Kvetch:

    I’m shooting for next month, Glenn — I’m still putting the agenda together and we have ever so much to get done. That “Fisting 101″ class for the NYC public pre-schools is turning out to be an absolute bear — I’ve been working on the syllabus for weeks now!

  113. Eli Rabett:

    Just need one

  114. mds:

    As long as McCulloch v. Maryland remains good law, this argument is transparently wrong.

    Exactly. This is what many of us jurisprudes refer to as a “tell.”

  115. Chief Justice Roberts May Have Switched Health Care Vote at Last Minute | OccuWorld:

    [...] that shift – if there was one – the entire Affordable Care Act would have been struck down, based on a reading that the individual mandate was both not a valid regulation of interstate [...]

  116. DrDick:

    Words never do.

  117. Malaclypse:

    Recently, I was pleasantly surprised during my trip to the worlds biggest Arby’s in COLONIAL HEIGHTS, VIRGINIA. I couldn’t get over the fact that there was no difference between this Arby’s restaurant and any restaurant anywhere not in that shithole. I mean, it was exactly the same, even though it’s run by crackers, primarily cracker patronship. There wasn’t one person in the worlds biggest Arby’s in COLONIAL HEIGHTS, VIRGINIA who was screaming, ‘M-Fer, I want more iced tea.’

  118. Bill Murray:

    too true

    Bill Murray

    Delamater v., South Dakota

  119. Roger Ailes:

    “As Sir Alex Fraser Tyler said about the fate of a democracy….”

    What, no quote from Lord and Lady Douchebag?

    If you’re going to quote aristo Scots tossers, you might want to use real quotes. And spell the tosser’s name correctly:

    http://en.wikipedia.org/wiki/Alexander_Fraser_Tytler

  120. firefall:

    I seem to remember stumbling across the first half of that quote in one of Heinlein’s more turgid works

  121. firefall:

    Mal, that may be due to your particular ethnic persuasion*

    *’yeah, he talked me into being Inuit’

  122. firefall:

    Pah, easy, those clowns in Assyria voted themselves free lunches under Tiglath Pileser III and look what happened! (a country where head-count has a fairly different meaning)

  123. dan:

    I’m happy about the outcome, don’t get me wrong, but I really don’t like the decision, largely because I don’t think Roberts’ opinion is significantly better than the dissenters. To get to the point of invalidating the PPACA, the dissenters have to believe an awful lot of things that just aren’t true. And, it turns out, Roberts believes ALMOST all of this.

    So, basically, we will have universal health care in this country because John Roberts was so unimaginative that he was only able to believe five impossible things before breakfast. Given the damage the court can do if five judges believe only one impossible thing, this isn’t something to cheer.

    And I don’t think you can ignore the awfulness of Roberts’ Commerce Clause opinion just because he got the tax analysis right. We now have a federal government that has the power to regulate what plants you grow in your closet, but not to regulate whether or not you pay for the health care you receive if that regulation isn’t put into the form of a tax. Leave aside the absurdity of calling the plant problem “commerce” and the free emergency care problem “not commerce”. I can understand a system of government that makes both of them national problems, I can understand a system of government that makes both of them local problems, and I can understand a system of government that assigns the “plants growing in closets” problem to the local government and the “vast amount of unpaid-for emergency care” problem to the national government. I can’t understand why anyone would think it’s a good idea to make the “plants growing in closets” problem a national problem and the “extraordinarily expensive unpaid-for emergency care” problem a local-problem-unless-the-remedy-is-a-tax-in-which-case-its-a-national-problem problem, even if that person did have the mental dexterity to somehow think that such a distribution was reconcilable with language in a governing document designating “interstate commerce” or “active interstate commerce” national and “non-commerce” or “inactivity” local.

    The other thing John Marshall said in McCulloch, apart from the stuff it has been cited to for months, was that “we must never forget, that it is a constitution we are expounding.” All this really means is that, in interpreting the often vague language of the Constitution, the court needs to take care that it is interpreting it in a way that make sense in determining the powers and operation of a government. It seems indisputable now that a decisive faction on the court have forgotten this and have taken up interpretive methodologies that are not designed to lead to outcomes consistent with anyone’s conception, not even their own, of a construction of an effective government, but rather are the product of results-oriented judging, politicized decision making, or overly technical analysis leading to random allocations of power that make no sense as a matter of policy or logic even if they weren’t irreconcilable with text, history or precedent.

  124. Richard:

    And she and her husband and Nino and his wife spend every New Year’s Eve together. But Scalia has mocked her decisions before and is thick skinned enough to take any jabs she throws at him.

  125. Richard:

    Robert’s decision is significantly better than the dissenters because it would only apply to Congressional action to force someone who is inactive in the area of commerce to become active. And that simply isn’t going to happen. Everybody conceded that the mandate provision was unique. Congress had never before passed a bill to force someone to buy something (or to pretty much force someone to do anything) and that isn’t going to happen again. A “you must buy broccoli” bill is not on the horizon.

  126. dan:

    Any distinction in the Commerce Clause analysis between Roberts and the conservative dissenters is essentially insignificant with regard to the question of whether that analysis makes for sound policy in the allocation of power between the states and the federal government. His analysis of the question of what constitutes a tax is an improvement, but that doesn’t make the Commerce Clause analysis, especially when compared to Raisch and other recent CC precedents that Scalia, Kennedy, and apparently Roberts accept as correct any more logical a result of construing any constitution, including the U.S.’s.

  127. Scott Lemieux vs. the Right-Wing Robed Republican Hax of Sol III | FavStocks:

    [...] The Radicalism (And Hackery) of the Health Care Cases Dissenters: The argument is that the mandate and the Medicaid expansion are not valid regulations of interstate commerce, but they are also so essential to a broader regulatory scheme that [if they are invalidated] the entire act must fall. [...]

  128. Eli Rabett:

    Outsourcing to David Bernstein

  129. Fallout From Yesterday’s Decision | Poison Your Mind:

    [...] From Yesterday’s Decision Posted on June 29, 2012 by reflectionephemeral Scott Lemiuex at LGM describes the dissent in yesterday’s ACA case: The argument is that the mandate and the Medicaid expansion are not valid regulations of [...]

  130. Quora:

    Why did Justice Roberts side with the liberal justices in the 5-4 decision supporting Obama Care?…

    The following is, of course, informed speculation – hopefully some clerks will dish and the full story will be revealed before tool long. There are some clues that Roberts initially sided with the conservative wing and then changed his mind. This comes…

  131. Cheis:

    All this talk and no one mentions the fact that the liberally controlled house manipulated the vote by note allowing a reconciliatory vote as prescribed by our constitution? Not really a win when you have to cheat to get it..

    No worries, Roberts gave our side the winning play.. Let the people decide on who gets to make the laws.. And vote out the cockroaches who can’t get the job done as its supposed to be done..

  132. Cheis:

    And before I get railed on for incorrectly stating “house,” I meant senate.. Now bitch about it

  133. NFIB v. Sebelius and Judicial Decision-Making II: The Law Mattered? - Lawyers, Guns & Money : Lawyers, Guns & Money:

    [...] he could have taken his opinion — holding the mandate unconstitutional but rejecting the self-refuting severance argument made by the dissenters — would have been the worst possible outcome for Republican interests. [...]

  134. Don’t Forget the Confederate States of America — It Worked Really Well There Too! - Lawyers, Guns & Money : Lawyers, Guns & Money:

    [...] is pretty much what contemporary Republican constitutionalism consists of. The argument made by the reactionary dissent in NFIB v. Sebelius may seek to effectively overrule McCulloch v. Maryland and contradict the [...]

  135. Scott Lemieux Anathematizes the Health Care Dissenters | Centanium:

    [...] Lemieux reads the dissent in the Health Care Cases, and hears a firebell in the night. Four justices of the [...]

  136. Partisan Asymmetry and the Courts - Lawyers, Guns & Money : Lawyers, Guns & Money:

    [...] As I say, the skepticism about the courts Obama learned from Chicago liberals is in a sense well-founded; the courts do have less ability to produce social change than some progressives assume, and historically have been much more reactionary than is commonly assumed. But the problem is that 1)courts do a great deal to damage progressive victories, and 2)the current partisan asymmetry makes things worse than they have to be. Obviously, Obama isn’t going to need reminding about point #1 anytime soon… [...]

  137. “It’s Like, How Much More Specious Could This Argument Be? And the Answer is None. None More Specious.” - Lawyers, Guns & Money : Lawyers, Guns & Money:

    [...] government has the authority to regulate the national health care market, McCullouch v. Maryland quickly settles the question of whether the mandate is constitutional.   Like Potter’s argument, the argument against [...]

  138. Libertarianism, Neoconfederacy, and McCulloch - Lawyers, Guns & Money : Lawyers, Guns & Money:

    [...] course, Barnett’s analysis (which I would say is an effective overruling of McCulloch, and both he and the Court claim is just a narrower reading of Marhsall’s essential holding) [...]

  139. “No, Mr. uninsured cancer patient, I expect you to die.” - Lawyers, Guns & Money : Lawyers, Guns & Money:

    [...] as I noted at the time, the terribleness of these arguments was implicitly conceded by the Republican appointees when they held that the mandate couldn’t be severed from the rest of the legislation — [...]

  140. Why Judicial Appointments Matter: A Grim Lesson - Lawyers, Guns & Money : Lawyers, Guns & Money:

    [...] Checkmate — these arguments should be dispositive. In theory, these arguments should also be attractive to Scalia, given his preference for clear rules and his much-maligned but wise opinion in Smith. Unfortunately, the “principle” Scalia uses to decide cases dealing with the Affordable Care Act seems to be “Broccoli Cornhusker Kickback Obama stole my car keys!” [...]

Leave a comment