June 28, 2012

Another Sunny View

Our Marbury v Madison? Daniel Epps finds parallels. In Health Care Ruling, Roberts Steals a Move From John Marshall's Playbook

So the president was ready for the Court to break right or break left. But instead, Chief Justice Roberts juked. He agreed with the challengers that the mandate couldn't be justified under the Commerce Clause or even the Necessary and Proper Clause -- thereby reinforcing the narrative that the Democratic Congress overreached in passing the bill. His opinion -- though not the result -- may provide much help in the future to judicial conservatives, as it suggests that, with the dissent, five justices are in favor of a more aggressive role for the Court in policing the bounds of the Commerce Clause (and the Spending Clause, which was at issue in the Medicaid legislation). And while Roberts ultimately voted to uphold the Act, he did so on a ground that, for Obama, plays terribly: that it's a tax.

UPDATE: Taranto: We Blame George W. Bush:
His decision was a disappointment to those, including this columnist, who are anxious to be rid of this monstrous law. That will require legislative action. But on the most important question of constitutional doctrine, Roberts handed a big defeat to the legal left.

UPDATE II: Yet William Jacobson @ Legal Insurrection is not feelin' the love!
To paraphrase Joe Biden, I have just four words for you:


If this were some other more narrow law, if this was not a monumental takeover of the most private aspects of our lives, if this monstrosity would not cause such long term damage to our health care system, if this law was not Obamacare .

I might be inclined to agree with you.

But it is Obamacare, it is the takeover of a substantial portion of our economy which empowers the federal government to write tens of thousands of pages of regulations telling us how to live and how to die.

This was the hill to fight on for any conservative Justice of the Supreme Court.

Yet because the conservative Chief Justice sided with the liberal Justices on the result, we have Obamacare.

Health Care SCOTUS Posted by John Kranz at June 28, 2012 4:51 PM

Ann Althouse sees the sunny side too.


I'm starting to get out of my funk for the day and proactively sent money to the candidate vowing repeal.

Posted by: Terri at June 28, 2012 6:32 PM

The broken-record refrain on talk radio is "they just invented a new government power to tax people for not buying things." I sang from the same echo-chamber this morning but now being enlightened as to what is meant by the phrase "the Constitution is what Supreme Court precedent says it is" I understand we're supposed to rejoice in this ruling because it openly asserts what has been understood only by legal scholars up til now:

"Congress [has] unlimited authority to regulate any activity that was economic in nature."

Any Constitutional restrictions on this existed only in the legal climate that existed prior to 1913, and in the idealistic imaginations of people like myself. But now, thanks to Chief Justice Roberts, even NASCAR retards know this. Finally they may see a real difference between a country governed by Democrats and one governed by Republicans. Electoral politics is not just about guns and abortions anymore. The debate will finally be about whether or not our government can make its citizens do things whether they want to or not.

Thank you Justice Roberts for ripping off the Band-aid of liberty. Our polity may now either heal or bleed to death.

Posted by: johngalt at June 28, 2012 9:36 PM | What do you think? [2]