Writing in National Review this week Ramush Ponnuru has a few insights to make about the SCOTUS “Obamacare” decision; aka “NFIB;” aka ACA decision, but a less than memorable main point, or one lost on us anyway. However the comments section produced some more definitive legal insight. There are sixty-three or more comments at this writing. We repeat parts of a few of them here and this one in its entirety.
From EZCH2013 07/09/12 08:12, available in full context here .
“A person does not need to engage in such a philosophical analysis of the Roberts opinion on Obamacare. This is a simple breach of contract case. The contract is the US Constitution. The provision breached is the Commerce Clause because Roberts agreed that those words do not grant to Congress the power to compel a person to engage in interstate commerce.”
“If the mandate is unconstitutional because it breaches the Commerce Clause, the tax on an individual’s constitutional choice not to engage in the interstate commerce of health insurance is also unconstitutional because the “tax” is not necessary and proper for the constitutional exercise of Congress’ taxing power. The “tax” is not necessary because Congress has the power to levy an excise tax on health care goods and services in order to fund its insurance scheme. The “tax” is not proper because it is a direct tax that is not properly apportioned among the States and because it is levied only against those who choose to engage in otherwise constitutionally protected behavior. The “tax” is also not proper because it is not directed towards raising revenue for the federal government; rather, it is directed towards compelling people to engage in a certain type of interstate commerce.”
“Roberts’ major error consisted of severing the mandate from the “tax.” The only fair reading of the law was that the mandate and the “tax” were inseparable. Tacitly, he made that finding when he found that the Anti-Injunction Act does not bar consideration of the cases because the “tax” was called a “penalty” in the words of act. This reasoning was correctly branded as sophism by the joint dissenters.”
“In other words, a functional approach to the law required that the ACA be struck and the issue sent back to Congress for a political solution that does not violate any provision of the social contract that exists between the federal government as one party and the People and the States as the other party.”
From Mustang Fan, 07/09/12 09:37, available in full context here .
“Never before in the history of the US has the concept of ‘tax’ and ‘penalty’ been co-mingled like this. The two have nothing to do with each other, they serve completely different purposes. Roberts has basically rewritten this law from his bench. This is original and unique, as far as I can tell anyway, for a judiciary to levy a tax. . . .”
From Palin Fan, 07/09/12 19:21, available in full context here .
“Yes yes yes, we all know that Heritage and Romney and a host of other publicly conservative people and groups proposed a health care mandate. Does that make it conservative? No. Conservatism is a philosophy oriented around conserving the founding principals of this nation as expressed in the Constitution and Declaration of Independence. In no way is the mandate conservative or Conservative. The imprimatur of the Heritage foundation notwithstanding. And by the way, what do they say today? Why do you focus on their position from the past when their present position is so clearly opposed to the mandate?
If liberatarianism is the ideology of college sophomores, then liberalsim is clearly the ideology of two year olds. Give me what I want and give it to me now because I want it and if you don’t I will throw a tantrum….that is liberalism and it is indistinguishable from a two year old child. Of course some children are adorable. Liberals aren’t .
Be an adult and pay your own bills. You want to pay someone else’s freight, go with God. No one will stop you. But you have no moral right to spend other people’s money. You and your mob may have the power to do so, but then the same can be said about….well, you know.”
From JackC, 07/09/12 20:19, this suggestive analysis, available in full context here. “The tax idea was likely conjured up by great legal minds associated with a private interest supporting Obamacare. They likely knew Roberts would not buy the Commerce Clause argument, so they gave him a new one. The contacts and their purpose might have been illegal, or improper otherwise. Yes, and the lobbying through the press played a role too. But I think the later arguing with justices is just smoke. He wanted to get the “tax” idea through with minimum of strife. Heck, even the “liberals” might have laughed at it.”
“If you want to know “why” this happened, it is all about contacts with Roberts in March or earlier. That’s when the tax angle had to have been selected. Anything transpiring after that is just smoke, and should absolutely not be the center of investigation. Roberts just didn’t wake up some March monring and say, “oh, let’s approint and pay for an attorney to argue a this bizarre argument I dreamed up last night.”
“Also, check out the appointed lawyer and anyone who helped him or supplied him with briefinngs.”
And finally for this briefing, this from hokkoda, 07/10/12 00:52, available in full context here . “Summing up: Roberts did what a lot of people do when faced with the need to rationalize an irrational choice: Decide what answer you need to arrive at, and then reverse-engineer a bunch of questions necessary to produce the desired result. Roberts did not choose “…to answer the question in precisely the wrong way: a way that guaranteed he would reach the wrong result.” He chose to ask narrow questions in just the right way to guarantee he would reach his desired result.”
“Hence the Rube Goldberg nature of the ruling. It only makes sense if you think an elaborate mouse trap is actually useful. Most people, like the dissent which wrote that the entire law should be nullified, would just buy a simple wooden mouse trap. . . . “
