Monthly Archives: June 2012

Did Justice Roberts Help Romney and Provide a Path to Repeal ObamaCare?

Over at Red State, Erick Ericson theorizes that Chief Justice John Roberts joined the majority opinion as a way to put ObamaCare back into the hands of the political branches to decide the law’s fate:

The Democrats have been saying for a while that individual pieces of Obamacare are quite popular. With John Roberts’ opinion, the repeal fight takes place on GOP turf, not Democrat turf. The all or nothing repeal has always been better ground for the GOP and now John Roberts has forced everyone onto that ground. Oh, and as I mentioned earlier, because John Roberts concluded it [the individual mandate] was a tax, the Democrats cannot filibuster its repeal because of the same reconciliation procedure the Democrats used to pass it.

It seems very, very clear to me in reviewing John Roberts’ decision that he is playing a much longer game than us and can afford to with a life tenure. And he probably just handed Mitt Romney the White House.

Our own Doug Mataconis said he “would not be surprised to see it be a 6-3 decision” way back in April for the following reason:

Ordinarily, the most senior Justice in the majority gets to decide who writes the majority opinion. However, if the Chief Justice is in the majority he gets to make that decision. If Kennedy ends up voting to uphold the mandate then I could see Chief Justice Roberts joining him so that he can write the opinion himself and make the precedential value of the decision as limited as possible.

Erick Erickson also mentioned on his radio program that many conservatives and libertarians who aren’t thrilled with Romney as the nominee will put aside their objections and vote for him if it means repealing ObamaCare.

I hate to say it but I think Erickson has a point. ObamaCare being upheld is a game changer. Prior to this decision that was supposed to strike down all or part of ObamaCare, I was absolutely certain that I would enthusiastically vote for the Libertarian nominee Gary Johnson rather than settle for the lesser of the two evils. With ObamaCare being upheld, now I have to say I’m not so sure. I’m not normally a single issue voter but if ObamaCare isn’t stopped and soon, we will be stuck with it for at least a generation.

The problem is though, it might already be too late. Several things have to happen just right. First Romney must be elected and the GOP must take control of the Senate and hold the House. Second, we have to trust that Romney and the Republicans in congress will actually follow through. We’ve been disappointed before.

Supreme Court Upholds Affordable Care Act

As Quincy notes below, the Supreme Court upheld the Constitutionality of the Affordable Care Act today by relying upon an argument that most people had not been paying attention to:

WASHINGTON — The Supreme Court on Thursday left standing the basic provisions of the health care overhaul, ruling that the government may use its taxation powers to push people to buy health insurance.

The narrowly delineated decision was a victory for President Obama and Congressional Democrats, with a 5-to-4 majority, including the conservative chief justice, John G. Roberts Jr., affirming the central legislative pillar of Mr. Obama’s presidency.

Chief Justice Roberts, the author of the majority opinion, surprised observers by joining the court’s four more liberal members in the key finding and becoming the swing vote. Justices Anthony Kennedy, frequently the swing vote, joined three more conservative members in a dissent and read a statement in court that the minority viewed the law as “invalid in its entirety.”

The decision did significantly restrict one major portion of the law: the expansion of Medicaid, the government health-insurance program for low-income and sick people, giving states more flexibility.

The case is seen as the most significant before the court since Bush v. Gore ruling, which decided the 2000 presidential election.

In addition to its political reverberations, the decision allows sweeping policy changes affecting one of the largest and fastest-growing sectors of the economy, touching nearly everyone from the cradle to the grave.

The political fight over health care remains far from over, with Republicans campaigning on a promise to repeal the law, which they see as an unaffordable infringement on the rights of individuals. The presumptive Republican presidential nominee, Mitt Romney, has promised to undo it if elected.

Chief Justice Roberts wrote that the decision offers no endorsement of the law’s wisdom, and that letting it survive reflects “a general reticence to invalidate the acts of the nation’s elected leaders.”

“It is not our job to protect the people from the consequences of their political choices,” he wrote.

The court’s ruling is a crucial milestone for the law, allowing almost all of its far-reaching changes to roll forward. Several of its notable provisions have already taken hold in the past two years, and more are imminent. Ultimately, it is intended to end the United States’ status as the only rich country with large numbers of uninsured people, by expanding both the private market and Medicaid.

The key provision that 26 states opposing the law had challenged – popularly known as the individual mandate – requires virtually all citizens to buy health insurance meeting minimum federal standards, or to pay a penalty if they refuse.

Many conservatives considered the mandate unconstitutional under the commerce clause, arguing that if the federal government could compel people to buy health insurance, it could compel them to buy almost anything — even broccoli, the archetypal example debated during the oral arguments three months ago.

In a complex decision, the court found that Congress’ powers to regulate commerce did not justify the mandate. But it reasoned that the penalty, to be collected by the Internal Revenue Service starting in 2015, is a tax and is not unconstitutional.

Chief Justice Roberts, in the majority, said that the mandate was unconstitutional under the Constitution’s commerce clause. But that did not matter if the penalty that enforces it was constitutional on other grounds.

The court’s four liberals made it clear that they disagreed with the Chief Justice’s view of the commerce clause, but joined him because the effect of his ruling was to let the law stand.

The Obama administration had said in court in 2010 that the mandate could be upheld under the taxation powers, which they called even more sweeping than the federal power to regulate interstate commerce.

The outcome, I think, is striking many people as a surprise for two reasons.

First of all, if there was any Justice on the Court who seemed likely to be the fifth vote along with the Court’s four liberal members to uphold the ACA, it would be Justice Kennedy. Indeed, after the end of three days of oral argument in March it had seemed as though Roberts was largely in line with Justices Scalia and Alito (and Thomas) in being skeptical of the mandate’s Constitutionality while Justice Kennedy was the one who seemed to be trying to find way to uphold the mandate. One thing this teaches us is that most predictions you hear about the Supreme Court are usually just wild guesses, and that you can’t always determine how a case is going to turn out based on the oral arguments. In the end, rather than Kennedy being the deciding vote in this case, it was Chief Justice Roberts who sided with the Justices Ginsburg, Breyer, Sotomayor, and Kagan to uphold the signature domestic legislation of a Democratic President who has, in the past been critical of many of the Court’s rulings under Roberts.

The second reason this is a surprise is the fact that it was the tax argument that ended up being the basis upon which the law was upheld. For the past two years, nearly all the discussion about the legal merits of the ACA have centered around the question of whether it could stand as a proper application of Congress’s power under the Interstate Commerce Clause. There was a side argument being advanced on behalf of the government in the ensuing litigation that argued that the mandate could also be upheld under the taxing power, but it generally didn’t get much attention from the media or those who were actively engaged in the fight against the law. More importantly, none of the Federal Courts that heard the challenges to the law before it got to the Supreme Court adopted the tax argument as a reason for sustaining the law. Some of those Courts explicitly rejected the argument, while others simply stated that they did not need to rule on the arguments because they found the mandate constitutional under the Commerce Clause. Additionally, at the Supreme Court arguments in March, the lawyers and Justices spent far more time talking about the Commerce Clause arguments than the tax argument. To a large degree, that argument had been filed away and largely forgotten. But, as we see today, not completely forgotten.

It was Law Professor Jack Balkin who first advanced the  argument that the mandate was Constitutional precisely because it was a tax:

he individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance.


The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional.

The mandate is also not a “direct” tax which must be apportioned among the states by population. Direct taxes are taxes on land or “head” taxes on the general population. The individual mandate does not tax land. It is not assessed on the population generally but only on people who don’t buy insurance and aren’t otherwise exempt. It is a tax on behavior, like a tax on businesses that don’t install anti-pollution equipment.

Many important and popular government programs are based Congress’s ability to give incentives through taxation and redistribute tax revenues for public purposes. To strike down the individual mandate the Supreme Court would have to undermine many years of precedents justifying these programs that stretch back to the New Deal (and in the case of the rules for direct taxes, to the very founding of the country).

Many dismissed Balkin’s argument but it was clear even when he wrote that back in March 2010, shortly after the law had been passed by Congress, that if the Court accepted it then the entire argument against the mandate specifically and the law in general would crumble into dust. And, that is exactly what has happened today.

We’ll be spending much time arguing the political ramifications of this decision, but it’s fair to see that this is now what most people were expecting. For the past two weeks or so, and indeed ever since the arguments in March, the left has seemingly been preparing itself for the likelihood that they would lose the mandate, if not the entire law. I didn’t see very much of this on the right, but now they’ll have to deal with the fact that they legal arguments they had been rallying around for two years have been rejected, and that if the ACA is going to be repealed it will have to be done by Congress. Given the fact that it’s very unlikely that Republicans will get 60 votes in the Senate any time soon, it strikes me that this is quite unlikely to happen.

Individual Mandate Upheld as Tax

The Supreme Court has upheld the individual mandate as valid under the Congress’ taxing power in the Constitution. Disappointing, but not surprising.

The worst thing about it is that the individual mandate is really a one-shot delaying tactic. The law can only mandate people into the insurance market once. When health care spending continues to rise after the mandate, insurance premiums are going to have to rise along with it. So, really, the Supreme Court has upheld Congress’ ability to use its taxing power as a punitive measure in the service of a cheap trick.

Two predictions:

1. Health care premiums initially hold flat in 2014 as insurers get more customers via the mandate, then start rising faster than they were before.
2. Congress finds more ways to exercise its taxing power as punishment for non-compliance.

Folks, it’s going to get fun.

Fast and Furious was not botched

I’ve officially lost count of the number of times I’ve heard or read a media source assert that Operation Fast and Furious was botched. It wasn’t. It did exactly what it was designed to do: put American guns in the hands of criminals so they could terrorize and kill innocent Mexicans with them and get caught doing so. When they were caught, the guns would be traced back to American gun shops “proving” that smuggling was a huge problem that had to be solved by any means necessary.

Were it not for the whistleblowers, the Obama administration would have built a gun control propaganda campaign upon a pile of dead bodies–exactly has they had planned to. Every single dead body was the result of things going right in the operation, not wrong.

So, why is the media continuing to insist that it was botched? Simple. It allows them to keep the truth of the Republican investigation out of the narrative. They can frame the investigation as looking into a mistake, like so many others. In reality, it’s an investigation looking at the administration’s clear intent to sacrifice innocent and unwilling lives for its own political agenda.

When you hear the word botched, know that it’s an attempt to weave a tale of incompetence when the real story is one of evil.

In the Mailbox Today…

Marco Rubios new bio/memoir “An American Son

Full disclosure, his publisher sent me a review copy (as they did to a number of conservative and libertarian bloggers). I’ll be reading it and posting a review shortly. The book will be publicly available starting tomorrow, and can be pre-ordered from Amazon now (links below).

For those who don’t know, Rubio is the junior senator from Florida, and former speaker of the Florida house (a post he held after only 6 years in the statehouse, having been elected at the age of 29, and elected speaker at only 35). One of the youngest senators at only 41, Rubio is the son of cuban immigrants, a devout catholic, and a solid conservative of the tea party persuasion.

For my own tastes… Rubio is great on economics, generally great on business, great on foreign policy, good on guns (not quite great, but a B+ is good enough for a senator), not so great on personal freedom.

My one big issue with Rubio is that he’s VERY socially conservative, and largely religiously based in that regard. As a philosophical libertarian who happens to be a Republican… I’m not thrilled with folks who think the government should be involved in these areas at all, never mind supporting extension of the governments current reach. Also, specifically, he supports constitutional amendments on social and moral issues… something I STRONGLY oppose.

Other than that though… hey, I like the guy.

Rubio was elected by a 20 point margin of victory over his nearest competitor… and that’s a hell of a story…

His nearest competitor was then sitting Republican governor Charlie Crist; who Rubio first beat in the states Republican primary, largely as a result of Tea Party voters.

Rather than drop out however, Crist decided to run as an independent against Rubio in the general election. This was largely taken poorly by both Tea Party oriented voters, and the majority of the states Republican base. Crist’s strategy was to use his popularity among independents, and centrist republicans and democrats, plus his seeming rebellion against the party and particularly “against the radical right and the Tea Party”, to build a “moderate” coalition for victory.

That strategy backfired BADLY.

Rubio earned 48.9% of the vote, to Crist’s 29.7%… with the democratic competitor Kendrick Meek, coming in a distant third with 20.2% (basically he was a sacrificial lamb, and only the hardcore dems voted for him, with about half the democrats voting for Crist).

This made Rubio the poster boy for the “Tea Party Revolution” of 2010 that the media played up so much, and for a time made him the target of speculation about him pulling a Republican version of the Obama play, and running for president in 2012.

Rubio was very clear that he had no intention of seeking either the presidential or vice presidential nomination in 2012… However, Romneys problems with the conservative and libertarian portions of the Republican and independent electorate, have got speculation among the media running high that Rubio will be chosen as Romneys running mate.

My personal opinion, is that Rubio doesn’t want to be vice president in 2012; he wants to be president in 2016 or 2020 (and he’ll be much more “electable” then, simply by getting to look more like what the electorate expects a president to look like… i.e. “Older than 41”)… but it’s a lot easier to get to the big chair from the little chair, than it is from the senate floor, and somehow, I don’t think he’ll say no if he’s asked. \

As to what this book, being released now, might mean?

I stand behind my previous statement.

At any rate, look for a review in this space in the next few days. In the meantime, here’s the links to buy the book, and for Rubios tour events:


Barnes & Noble:

Rubio’s book tour:

Rubios Twitter feed:

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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