Contributor Post Created with Sketch. Four Sentences From the Dissent

 

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing.

Compelling–utterly compelling–and true.

Oh, how, how could Chief Justice John Roberts have refused to sign that opinion?

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  1. Mel Foil Inactive

    When he fell off that boat, and onto the dock, he maybe fell on his head.

    • #1
    • June 28, 2012, at 10:04 AM PDT
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  2. Shiney Inactive

    Peter, he did sign on to this part of the dissent the mandate was upheld as part of the taxing power not the commerce power. 

    • #2
    • June 28, 2012, at 10:06 AM PDT
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  3. The New Clear Option Inactive
    Peter Robinson
    Oh, how, how could Chief Justice John Roberts have refused to signthatopinion?

    Because he is a member of the least accountable, and most over-relied-upon branch of the United States government. Because he enjoys the exemption of answering to the American people for his actions every 2, 4, or 6 years. Because it was left up to him by We the People when we elected the Current Occupier of the White House and Current Occupiers of the Congress.

    • #3
    • June 28, 2012, at 10:10 AM PDT
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  4. das_motorhead Inactive
    Shiney: Peter, he did sign on to this part of the dissent the mandate was upheld as part of the taxing power not the commerce power. · 0 minutes ago

    Yes, but as has been pointed out on some of the other feeds, in practice doesn’t this simply mean congress can do anything it wants, as long as it calls the “it” a tax? I’m seeing a lot of explanations to Roberts’ opinion, but to my completely non-legal-trained mind none make sense without a lot of gymnastics. The passage Peter quotes, on the other hand, is clear and concise. A is A, if you will.

    • #4
    • June 28, 2012, at 10:11 AM PDT
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  5. No Caesar Thatcher
    No Caesar Joined in the first year of Ricochet Ricochet Charter Member

    Hmm, since our Lords have decided to go down this path let’s have some fun in the next Congress. How about the Self-Defense Act? This is quick, so go with the concept, given the Federal government’s finances and decision to cut the Pentagon budget all adults under the age of (say) 56 must own a high caliber weapon and maintain regularly demonstrated proficiency there with. Failure to do either will result in them having to pay a tax to the Federal government to cover the Pentagon’s increased need to train soldiers. Switzerland has the precedent. 

    • #5
    • June 28, 2012, at 10:12 AM PDT
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  6. Peter Robinson Founder
    Peter Robinson
    Shiney: Peter, he did sign on to this part of the dissent the mandate was upheld as part of the taxing power not the commerce power. · 3 minutes ago

    Yes, the majority opinion upheld ObamaCare as a tax, refraining from upholding it under the Commerce Clause–an important point, as you quite rightly note. But, a) the Chief Justice did not sign the dissent, and, b) as Richard Epstein pointed out on the podcast just now, the Chief Justice’s opinion amounts to opening the same door under the taxing power that the administration had asked to have opened under the commerce clause.

    • #6
    • June 28, 2012, at 10:14 AM PDT
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  7. Albert Arthur Coolidge

    Some conservatives are trying to put a bold face on and say that Roberts at least limited the scope of the commerce clause. That is ridiculous and graspign at straws. If Roberts wanted to limit the commerce clause, he could have joined Kennedy, Thomas, Scalia, and Alito to make a majority ruling that the commerce clause did not allow Obamacare. Clearly, limiting the commerce clause was not the reason Roberts voted with the liberals. 

    • #7
    • June 28, 2012, at 10:18 AM PDT
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  8. Duane Oyen Member
    Duane Oyen Joined in the first year of Ricochet Ricochet Charter Member
    Peter Robinson

    Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing.

    Compelling–utterly compelling–andtrue.

    Oh, how, how could Chief Justice John Roberts have refused to sign thatopinion? · · 19 minutes ago

    He pretty clearly agreed with that finding, which is why he indeed did not accept the Commerce Clause as the relevant enumerated power. He just apparently wasn’t ready to invalidate all of LBJ’s legislation, figuring it would be too unsettling in the body politic.

    • #8
    • June 28, 2012, at 10:23 AM PDT
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  9. Leigh Member
    Peter Robinson

    …as Richard Epstein pointed out on the podcast just now, the Chief Justice’s opinion amounts to opening the same door under the taxing power that the administration had asked to have opened under the commerce clause. · 9 minutes ago

    I see how this is equally bad constitutionally. But is it not, possibly, something of an improvement? Would Obamacare have passed if it had been called a tax, and might that justification make it at least somewhat harder to pass similar laws in future? I really don’t know, but I’m seeing the argument.

    Not a “win” but maybe a “silver lining”?

    • #9
    • June 28, 2012, at 10:38 AM PDT
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  10. Valiuth Member
    Valiuth Joined in the first year of Ricochet Ricochet Charter Member

    I won’t feel this thing is a a silver lining until I see a Republican House and Senate pass a repeal signed by President Romney. This is a loss, period. We can still get back up and keep fighting, it is our only option. Maybe we need to start doing more than just giving money to Romney and Republicans maybe we need to start actually going out there and convincing people…

    • #10
    • June 28, 2012, at 10:49 AM PDT
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  11. Cylon Inactive

    I think conservatives need to be honest and concede that Congress has the power to levy taxes in the interest of the general welfare. It just does and crying about it after talking so much about respecting the wisdom of the founders in designing the constitution smacks of wanting to have it both ways. The only arguments against this ruling as far as I can see are that the Congress and President lied while trying to pass the law, explicitly claiming this wasn’t a tax and then arguing before the courts that it was, or that the AHA doesn’t promote the general welfare. I don’t see anyone making the latter argument. If we want to complain about how Congress doesn’t have the power to tax in this way, I think it needs to be made explicitly citing how this isn’t tied to general welfare. Otherwise, stop whining.

    • #11
    • June 28, 2012, at 11:06 AM PDT
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  12. Duane Oyen Member
    Duane Oyen Joined in the first year of Ricochet Ricochet Charter Member
    Peter Robinson
    Shiney: Peter, he did sign on to this part of the dissent the mandate was upheld as part of the taxing power not the commerce power. · 3 minutes ago

    Yes, the majority opinion upheld ObamaCare as a tax, refraining from upholding it under the Commerce Clause–an important point, as you quite rightly note. But, a) the Chief Justice did not sign the dissent, and, b) as Richard Epstein pointed out on the podcast just now, the Chief Justice’s opinion amounts to opening the same door under the taxing power that the administration had asked to have opened under the commerce clause. · 9 minutes ago

    That door has been wide open for 70 years. No one seriously argued that this would have been unconstitutional under the taxing power. 

    Look, are Silberman and Sutton turncoat liberals too? There is no substitute for doing the dirty work littler by little all along. Only liberals have ever gotten the courts to give them what they couldn’t get by winning the battle of politics. We have to win this the hard way the way we always needed to- by persuasion.

    • #12
    • June 28, 2012, at 11:09 AM PDT
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  13. Bryan G. Stephens Thatcher
    Bryan G. Stephens Joined in the first year of Ricochet Ricochet Charter Member

    Because he is pro-tyranny and against liberty. There is no other view that is possible. To vote to support this law in any capacity is a vote for unlimited government power. Can anyone show me where the Federal Government now has any limits at all? If they want me to do anything, all they have to do is propose a tax to make me do it. If I don’t pay the tax, they throw me in prison.

    Liberty is dead. Even Romney elected does not undo this, it just leaves open this abuse of power for the next set of tyrants to take over. And remember, Romney has not one problem with the concept of the mandate.

    They are all tyrants that feel the rest of of should shut up and do what we are told.

    We don’t need another Reagan. we need another Washington. We need another Patrick Henry. We need another Madison, another Jefferson and Adams.

    What hope there is is so limited I cannot see it. We are doomed to fall into tyranny in our lifetimes.

    • #13
    • June 29, 2012, at 1:01 AM PDT
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  14. Guruforhire Member

    Roberts isn’t a root-and-branch kind of guy. He had a gang of precedent on the broad tax power for ‘nudging’ and whether we like it or not the mandate/penalty does behave as that tax. He likes narrow decisions, and upholding it as a tax, while rebuking the commerce clause arguement is the most narrow sound arguement that could be made.

    If you want to argue that a tax cant be used for coercive purposes outside of revenue generation, that is a different war than the one we just waged.

    • #14
    • June 29, 2012, at 3:36 AM PDT
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  15. Duane Oyen Member
    Duane Oyen Joined in the first year of Ricochet Ricochet Charter Member
    Bryan G. Stephens: Because he is pro-tyranny and against liberty. There is no other view that is possible. To vote to support this law in any capacity is a vote for unlimited government power. Can anyone show me where the Federal Government now has any limits at all? If they want me to do anything, all they have to do is propose a tax to make me do it. If I don’t pay the tax, they throw me in prison.

    Liberty is dead. Even Romney elected does not undo this, it just leaves open this abuse of power for the next set of tyrants to take over. And remember, Romney has not one problem with the concept of the mandate.

    They are all tyrants that feel the rest of of should shut up and do what we are told.

    We don’t need another Reagan. we need another Washington. We need another Patrick Henry. We need another Madison, another Jefferson and Adams.

    What hope there is is so limited I cannot see it. We are doomed to fall into tyranny in our lifetimes. · 3 hours ago

    Wow! Everybody turn on the gas, life is over.

    • #15
    • June 29, 2012, at 3:58 AM PDT
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  16. Diogenes Member

    [Edited by author]

    • #16
    • June 29, 2012, at 12:39 PM PDT
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