We’re all over The Decision today and we’ve brought out the big guns: LawTalk’s John Yoo and Richard Epstein. Also, the political implications of the decision, and of course Rob addresses “The Apology” as it’s now known on Ricochet.

Because we missed one last week and we’re taking next week off, we awarded away two Ricochet Member Posts of the Weeks on this show. Who won? Ah, you’ll just have to listen to find out. 

Music from this week’s episode:

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There are 23 comments.

  1. Cylon Inactive

    I really hope that tomorrow Profs. Yoo and Epstein will explore the general welfare provision and the history of how the federal government has used that provision to levy taxes throughout history. The general welfare provision is after all what Roberts is basing his ruling on and it does seem to me that there is a plausible argument that making sure citizens have access to healthcare that they can afford is a matter of the general welfare that justifies some sort of action on the part of Congress. I’m disappointed that what we got in the analysis today sounded simply like knee jerk despair that Roberts has just given Congress unlimited power under the taxing power. I imagine there is more to it than that.

    • #1
    • June 29, 2012, at 1:24 AM PDT
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  2. Ecdysis Inactive

    Great discussion. Thomas does say to limit the Commerce Clause further in his individual dissent, reaffirming his position that the Substantial Effects test is baloney. 

    I am curious about the implications of using the functionality test to determine the difference from a tax and a penalty. Roberts seems to imply that it could be considered a tax because it is not that expensive, and less so than buying insurance. By making the threshold the amount of the fee, could it be a mandate for poor people (and thus unconstitutional), and merely a tax for rich people? Does it become a mandate and not a tax if HHS takes on the burden of collecting the fees? And to the scienter requirement, if a rule was implemented stating that someone who “without intention fails to purchase insurance” is it now suddenly a mandate?

    If Congress decides to raise the tax/penalty would it cross that threshold and then become a penalty? 

    Finally, how can Congress have the power to tax something it does not have the power to regulate, baring an explicit constitutional provision?

    • #2
    • June 29, 2012, at 1:25 AM PDT
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  3. Profile Photo Member
    Cylon: I’m disappointed that what we got in the analysis today sounded simply like knee jerk despair that Roberts has just given Congress unlimited power under the taxing power. I imagine there is more to it than that. · 6 minutes ago

    They had less than an hour to read and think about the decision when we started to record this show. They’ll do more in depth analysis on the tomorrow’s Law Talk. 

    • #3
    • June 29, 2012, at 1:40 AM PDT
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  4. EJHill Podcaster

    Nora!

    • #4
    • June 29, 2012, at 1:49 AM PDT
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  5. Jimmy Carter Member

    It’s official: the federal government admits taxes are penalties/punishments.

    • #5
    • June 29, 2012, at 2:36 AM PDT
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  6. The (apathetic) King Prawn Inactive
    Jimmy Carter: It’s official: the federal government admits taxes are penalties/punishments. · 12 minutes ago

    Good point. Taxation has historically been understood as the necessary means of funding proper government actions. Some time in the last century we tossed the word “proper” out. Today we added coercion of the subjects as another part of the definition of taxation. Funny that I’m reading a Robin Hood series right now…

    • #6
    • June 29, 2012, at 2:50 AM PDT
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  7. Boymoose Inactive

    Does Roberts action make him “Activist”? and the worst kind ( what ever that means) 

    • #7
    • June 29, 2012, at 2:54 AM PDT
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  8. GirlWithAPearl Inactive

    Thanks to Yoo & Epstein I was somewhat prepared for a mixed, at best, outcome and even a total disaster like we got… having heard their lively conversation with Peter Robinson back in January.

    Even though The Decision is overwhelmingly bad/horrible news, I very much appreciated the calm, exceptionally sharp and clear analysis and opinion. ‘The “non-experts” also did a great job venting and helping take the edge off this baaaaaad hangover.

    • #8
    • June 29, 2012, at 3:25 AM PDT
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  9. I. raptus Member

    This is truly a shocking day. Peter Robinson said a bad word!

    • #9
    • June 29, 2012, at 4:00 AM PDT
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  10. GirlWithAPearl Inactive

    I’m listening again, in an effort to avoid the cable news circus.

    If Yoo says it once, he must say it four times:

    ‘the dissent is a great decision… it actually reads like the majority opinion should have read…’

    • #10
    • June 29, 2012, at 4:15 AM PDT
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  11. Profile Photo Member
    I. raptus: This is truly a shocking day. Peter Robinson said a bad word! · 26 minutes ago

    That was Rob. 

    • #11
    • June 29, 2012, at 4:27 AM PDT
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  12. Peter Robinson Founder
    I. raptus: This is truly a shocking day. Peter Robinson said a bad word! · 1 hour ago

    Sorry. But you’ll agree that John Roberts provoked Rob and me very, very sorely.

    • #12
    • June 29, 2012, at 5:25 AM PDT
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  13. ChristmasBeard Inactive
    Peter Robinson
    I. raptus: This is truly a shocking day. Peter Robinson said a bad word! · 1 hour ago

    Sorry. But you’ll agree that John Roberts provoked Rob and me very, very sorely. · 31 minutes ago

    I didn’t think that Peter even knew any bad words!

    • #13
    • June 29, 2012, at 6:09 AM PDT
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  14. ChristmasBeard Inactive

    Nooo! The Big Story sounder endures!

    By the way, I’ve been looking for something like Square Space. I’ll give it a shot. The way things are going with web design my Flash skills (which are my best/only coding skills) are becoming obsolete and I don’t have enough hours in the day to learn a new language right now. Thanks!

    • #14
    • June 29, 2012, at 6:16 AM PDT
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  15. KaneCountyFarmboy Member

    John Roberts is the Bob Dole / Bob Michel of the Supreme Court–the judicial tax collector for the welfare state, more enamored with the status of his particular institution than of the Constitution and the Republic as a whole.

    • #15
    • June 29, 2012, at 6:22 AM PDT
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  16. Goddess of Discord Member

    Now I have to get a Kindle so I can read Mr. Lileks’s book. Some humor is much needed.

    • #16
    • June 29, 2012, at 6:44 AM PDT
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  17. Stephen Dawson Inactive

    As EJHill said, ‘Nora!’

    Was it a test to make sure that we really, really did listen all the way to the end?

    Problem is, I’m feeling like an idiot for not getting how it relates to the body of the podcast. Or is that part of the plot?

    • #17
    • June 29, 2012, at 8:51 AM PDT
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  18. Profile Photo Member

    It didn’t relate to the podcast. It was just a small tribute to the passing of a talented woman.

    • #18
    • June 29, 2012, at 9:10 AM PDT
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  19. Israel P. Inactive

    John, “rear tuches” is redundant. There is no “front tuches.”

    • #19
    • June 29, 2012, at 12:03 PM PDT
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  20. James Lileks Contributor

    Thank you, Felicia! I was wondering if anyone caught that.

    • #20
    • June 30, 2012, at 1:39 AM PDT
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  21. Stephen Dawson Inactive
    Blue Yeti: It didn’t relate to the podcast. It was just a small tribute to the passing of a talented woman. · 9 hours ago

    Oh, of course! I’m an idiot. She made millions happy for ninety minutes at a time. I for one applaud her.

    • #21
    • June 30, 2012, at 5:01 AM PDT
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  22. FeliciaB Inactive

    Favorite lines from this podcast:

    Lileks: The Dread Pirate Roberts (“Princess Bride” fans unite!)

    Long: …they put on their black negligees…

    • #22
    • June 30, 2012, at 12:37 PM PDT
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  23. FeliciaB Inactive
    Goddess of Discord: Now I have to get a Kindle so I can read Mr. Lileks’s book. Some humor is much needed. · 18 hours ago

    I’ll pay for your book myself if he doesn’t make you laugh out loud at least once.

    • #23
    • June 30, 2012, at 12:38 PM PDT
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