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Huh. A ruling that makes sense. I did *not* see that coming.
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jducoeur
Thanks to Aaron for the pointer to this concise and frequently-updated blog entry on this morning's legal decision.

The short version, quite to my surprise, is that Chief Justice Roberts bought into essentially the same logic that I'd been thinking: call it what you will, the "individual mandate" is effectively a tax, and pretty obviously constitutional on that basis. I suspect that that is going to make for all sorts of entertaining politics in the coming months as Romney jumps up and down going, "Hah! See! Taxes!", but I agree with the reasoning, and appreciate the general call-a-spade-a-spade attitude.

Anyway, the article is fascinating, making the point that this is remarkably clever of Roberts politically: instead of the sort of knee-jerk reactionary rhetoric that we've been seeing from most conservatives, he's made the Court look a bit more reasonable and less partisan, while winning a much more important conservative victory by bounding the Commerce Clause a bit.

So overall, a good day for the spirit of compromise. The Administration wins what will probably be its most important political battle, but the conservatives force them to admit that it's a tax. The horrible health care mess takes at least a baby step towards rationality for the first time in decades, and I breathe a quiet sigh of relief. (No, I don't love the Obamacare model, but I think it's still a major improvement over what we've been dealing with heretofore. If we can't get a genuinely sensible single-payer model, at least we can make what we *do* have suck less.)
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This is my favorite line from that blog:
"Justice Roberts is probably somewhere smoking a cigar, feeling like the smartest guy in the room."

I think that saying that Conservatives "won" a victory today, assumes that there was ever a serious possibility that this Court could have possibly promoted a Commerce Cause expansion. The way the ACA's architects set that part of the law up, and the way it was argued by the ACA's defenders before the SCOTUS, I think makes it pretty clear nobody was realistically expecting any one of the five Conservative justices to ever agree to do that. Conservatives didn't really "win" a bound on the Commerce Clause, because I don't think anyone ever seriously expected them to to "lose".

The right-wing wanted the entire concept of the mandate -- by whatever mechanism -- eliminated by the Court. They failed. I imagine a right-winger who tried to put a brave face on it by insisting that they at least won a fight no one ever thought they had a real chance to lose, is going to get a derisive reception from his fellows. As he should.

Now, the Medicare expansion strikedown -- now *that's* some interesting sauce...

I'll have to read more about it, but from what I've read from some people who have more expertise with Supreme Court rulings and the legal system than I have, I don't agree that this decision significantly bounded the Commerce Clause. To quote one, "Once Roberts decided that PPACA was constitutional as a tax, his statements on the Commerce Clause become dicta, i.e., not binding on lower courts." In other words, if the mandate had been overturned because the Commerce Clause was deemed insufficient, it would have significantly altered the legal meaning of the clause, but choosing to uphold the law on other grounds and writing some stuff about the Commerce Clause (which other concurring justices disagreed with) doesn't have a lot of force in the legal system.

They used to say the same thing about Corporate Personhood.

Yeah, that had occurred to me, but you have to admit, that sort of thing isn't common. I don't doubt that there will be those that try to do the same thing with Roberts' pronouncements on the Commerce Clause, but I don't see it as being likely to succeed, and it's certainly not the kind of major result of the decision I've seen declared in some quarters.

(Deleted comment)
Atlantic has an entertaining take on Robert's wily take, and how it escapes the political traps in most of the predicted outcomes. http://www.theatlantic.com/national/archive/2012/06/in-health-care-ruling-roberts-steals-a-move-from-john-marshalls-playbook/259121/

And now that I go to read that blog you reference I see it states much the same thing. Raises the question of independent thought or shared inspiration?

Above the Law has no independent thoughts. Ever.

(I get to say that because I was he one who gave Aaron the link in the first place.)

Then I must concede to your established precedent and conclude that the above blog is repurposing other's ideas, and without adequate citation (per the academic in me).

Obama is smart.
First of all, I am sure he knew it was essentially a tax and needed to find a way to get the bill passed without _calling it a tax_. Brilliant re-framing it. IT's not a tax. It's a "penalty". And. It. Worked.

He has something up his sleeve for how to get out from underneath the accusations he leveled a tax. I can think of at least one, and if you give me 24 hours and a bottle of wine, can probably come up with 2 others.


You have to admit, it's a pretty weird tax: in practice, you pay a private company rather than the government, in exchange for services you get from the private company rather than from the government. But that's only if you obey the intent of the law: if you don't, you pay the IRS.

A ruling only a lawyer could love, but the outcome is that we still have expanded-if-not-universal health care, and it'll probably reduce per-capita costs somewhat.

I really don’t understand striking down the Medicare expansion, though! It seems like the conservative justices are saying that if the Federal Government ever gives money for the states for anything, it has to continue to give that money, and never change the conditions or purpose for which its given, which is a very strange approach to “limited government”.

It seems like there has to have been some detail in there that hasn’t been reported in the sources I’ve seen.

(I also wonder whether that reasoning means that the mechanism the federal government used to persuade most of the states to lower their speed limits to 55 — sure, speed limits are not a federal thing, but we’re not going to give you federal highway money unless your state law makes us happy — during the energy crisis would be held unconstitutional now.)

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