If they're running against the Popular Peoples Revolutionary Fascist-Maoists, of course.

SPLITTERS!

On a unrelated note, what is with the current trend of people seeking the nomination of their party when they're not even liked by their home state or people?

Texans can't stand Rick Perry, Mass. doesn't even remember that Mitt Romney was their governor, and Santorum was sent on the last train to hicksville by the people of Penn.

Wait, what about bikes? Bike shares?

My bad, I forgot to include them. Bikes and public transportation.

It's fun to watch the crazy over-reactions, and then it gets kind of sad when you realize that those kinds of over-reactions have helped put us in the soup we're in now. I am looking forward to the return of the death panels, though. Those were good times. Also, the rebranding of Obamacare as anti-person-fetus legislation that mandates third trimester abortions for women whom God blessed with child despite their government-issued condoms (which failed because they were made by illegal immigrants).

I think Obama could invent a machine that turned poop into gold, then use that gold to pay off the national debt and give everyone a few million bucks to boot, and the Republican response would be to blame him for the resultant job losses in the sewer and toilet industries.

I think Obama could invent a machine that turned poop into gold, then use that gold to pay off the national debt and give everyone a few million bucks to boot, and the Republican response would be to blame him for the resultant job losses in the sewer and toilet industries.

Also, hyperinflation. I'd love to see the look on Ron Paul's face, though.

I'm not denying that there are plants, but in this instance I don't believe he was. I wish I could find the article.

There were at least two stories floating around. One was a photo of a Tea Party rally, where someone was holding a sign like that. Assuming it wasn't photoshopped, there was no way to tell from the photo whether the statement was ironic, from a counterprotester, or serious.

The other was a member of Congress who claimed he heard someone say that at one his town hall meetings. Once again, no way to tell whether it was serious.

Yeah, totally going to lose the bet on the over. Didn't realize how fast things would drop off. I guess it's not worth getting banned for spamming to win an internet bet :P

I will now go to celebrate my bourgeois victory over the lovers of freedom with a decadant $12 round of golf.

I assume that within a year we will be forced to purchase an electric car.

Wait, what about bikes? Bike shares?

Or the Copenhagen wheel.

People bought MRIs and cancer operations in ancient Rome?Something about fascist PACs instead.

Sign. Me. Up.

EDIT: stupid copy and paste.

There were at least two stories floating around.

There are plenty of stories floating around of people supposedly saying it. This one I read about from a town hall meeting in the Atlanta Journal-Constitution of someone actually saying it. I'm sure there are a few other instances where someone seriously said it, along with the people who were trolling.

However now that I consider the source, I may have to revisit how strongly I believed this actually happened.

Late to the party, but I think the talk of the decision favoring Romney is silly. Yes it is a base election, but the low information independent voters still matter. All they will hear is "Obamacare is constitutional."

And hey winners are good right? Everyone loves a winner. One of the reasons (second to the crappy economy of course) the President is not popular with those low info types is he is not getting stuff done. That is is largely Republican interference is irrelevant. They want effective presidents that get stuff done, not losers that have their laws overturned.

So it is a win for him. But the economy (and effectiveness of the campaigns) that matter more.

I think Obama could invent a machine that turned poop into gold, then use that gold to pay off the national debt and give everyone a few million bucks to boot, and the Republican response would be to blame him for the resultant job losses in the sewer and toilet industries.

And the resulting inflation ...

[Edit] Doh! Large glass of a fine Arbor red to Scott.

People bought MRIs and cancer operations in ancient Rome?

Sign. Me. Up.

I think in ancient Rome, an MRI required the removal of your skin so that they could see what was underneath. Very few people probably survived the skin reattachment surgery.

The other was a member of Congress who claimed he heard someone say that at one his town hall meetings. Once again, no way to tell whether it was serious.

Was the member of Congress repeating it in support, or as mockery? Don't recall.

Haven't had a chance to read the last couple of pages, but did anyone post this yet?

Rumors had been circulating in legal circles for weeks that Chief Justice Roberts in particular was under enormous political pressure not to be the vote that would overturn the most significant piece of social legislation passed by Congress in decades. Indeed, in April President Obama took the unusual step of issuing something of a public warning on the subject, saying that he was “confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

It is impossible for a lawyer to read even the first few pages of the dissent without coming away with the impression that this is a majority opinion that at the last moment lost its fifth vote. Its structure and tone are those of a winning coalition, not that of the losing side in the most controversial Supreme Court case in many years. But when we get to Page 13, far more conclusive evidence appears: No less than 15 times in the space of the next few pages, the dissent refers to Ruth Bader Ginsburg’s concurring opinion as “Justice Ginsburg’s dissent.”


There is one likely explanation for this: The dissent was the majority opinion when those who voted to overturn the entire ACA signed off on sending their text to the printer. In other words, Chief Justice Roberts changed his vote at the very last possible moment.

It is inconceivable that the dissent reads as it does by inadvertence. We can be sure every word of it was proofread countless times by the dissenters’ 16 clerks, all of whom know how to make a global change on a word processing program.

Another unavoidable conclusion seems to be that the dissenters intentionally left the parts of their text referring to Ginsburg’s “dissent” unchanged. This was a symbolic gesture, intended to reveal, without formally breaking the justices’ code of silence, what the Chief Justice did to them — and, as they no doubt see it, to the country and the Constitution — through his last-moment reversal.

From Salon.

I'm not buying it. Especially the "dissent" Kremlinology. Is it more or less likely that Scalia was referring to Ginsburg's argument for the dissenting 4 justices who didn't buy the activity/inactivity distinction or that the dissenting Justices of the Supreme Court didn't proofread and edit their decision for a month after the switched vote?

Yeah, totally going to lose the bet on the over. Didn't realize how fast things would drop off. I guess it's not worth getting banned for spamming to win an internet bet :P

Victory is mine. Unless somebody mentions steroids or Ichiro soon.

Steroids, and then Ichiro. Also, Stan Van Gundy.

@716 lends a whole 'nother level of awesome to this sauce.

BTW, not that it matters to the outcome, but how crazy is the whole "we'd strike down the mandate and limit the medicaid section, so toss all the other changes too" part of the dissent? I mean, those Justices are basically saying that they are expert enough at legislation that the unconnected Medicare and Medicaid reforms must fall if the mandate does. I mean, the insurance reforms not being severable sure, but the medicare reforms? I've gotten deep in the weeds on this bill, the mandate has NOTHING to do with the vast majority of them!

eta: Just as a comparison, McCain-Feingold has been the subject of a number of judicial challenges and has been seriously reduced over the course of them. But in none of the decisions did the court throw out the entire law because they found large parts of it unconstitutional. Jesus Christ is that whole section intellectually lazy.

Victory is mine. Unless somebody mentions steroids or Ichiro soon.

Unless this thread gets closed and a new July "OT-P" thread pops up, you'll win your bet.

He had the under. My thoughts that I'm going to lose are premised upon a new OT-P popping up.

He had the under. My thoughts that I'm going to lose are premised upon a new OT-P popping up.

Just make the claim that zip codes represent an actual geographic area. You'll win by tomorrow.

Steroids, and then Ichiro. Also, Stan Van Gundy.

If Ichiro! took steroids, he could be Stan Van Gundy. If he wanted to.

He had the under. My thoughts that I'm going to lose are premised upon a new OT-P popping up.

I blame ObamaCare.

David, can you please dissuade Ray of this insane claim?

Ray's nuts here. There's a Kool-Aid flavor for everyone, even Grapeasaurus Rex.

Dan/MCoA: Can we agree that:

a) the commerce clause was already grotesquely distorted by Supreme Court precedent to provide Congress with unduly expanded power; and

b) upholding Obamacare under the commerce clause would have amounted to an unprecendented expansion of their power under this clause?

I was holding out some hope that this thread goes nuclear and that I can scrape something from it before it gets erased, but so far you people are sorely disappointing.

are you the biggest idiot ever?

The Affordable Care Act seeks to achieve “near-universal” health insurance coverage. §18091(2)(D) (2006 ed., Supp. IV). The two pillars of the Act are the Individual Mandate and the expansion of coverage under Medicaid. In our view, both these central provisions of the Act—the Individual Mandate and Medicaid Expansion—are invalid. It follows, as some of the parties urge, that all other provisions of the Act must fall as well.

The next time someone tells me that Scalia, Alito, and Thomas are in any way minimalists I'm going to make them eat a copy of this dissent. Holy #### is this a horrific misreading of severability doctrine. All for the purpose of sweeping judicial activism against a political action they disagree with. Hot #### what hacks.

Just make the claim that zip codes represent an actual geographic area.

They don't?

I mean, those Justices are basically saying that they are expert enough at legislation that the unconnected Medicare and Medicaid reforms must fall if the mandate does.

The only people who still think the Supreme decides the truly major issues based on the application of legal principles to facts are five years old.

The Supreme Court is a political body, and there is no more partisan a politico in DC than Scalia. It does not matter whose name is on the dissent -- the more political it is, the more he had a hand in it.

a) the commerce clause was already grotesquely distorted by Supreme Court precedent to provide Congress with unduly expanded power; and

b) upholding Obamacare under the commerce clause would have amounted to an unprecendented expansion of their power under this clause?

That's not why I thought you were nuts there (I meant it as a gentle ribbing only). You said that even the Democrats don't believe that the Commerce Clause is Stretch Armstrong - I insist that many actually do believe that.

a) the commerce clause was already grotesquely distorted by Supreme Court precedent to provide Congress with unduly expanded power;

How so?

One wonders if Roberts was motivated by concerns unique to a Chief Justice (comity, legacy, etc.), and thus whether if GWB had chosen Scalia (who likely wouldn't have cared how his opponents felt about the decision) to replace Rehnquist as Chief Justice, this case would have gone 5-4 the other way.

Obviously both impossible to predict from the point of view of seven years ago when Roberts was nominated, and ultimately unknowable in any event, but it's an interesting hypothetical...

Just make the claim that zip codes represent an actual geographic area.

They don't?

Apparently they don't, but for the love of god please do not go here.

I insist that many actually do believe that.

Nah, that's the necessary and proper clause. The commerce clause is the cool friend we hang around with to get into all the best parties so Stretch can do his thing.

The only people who still think the Supreme decides the truly major issues based on the application of legal principles to facts are five years old.

Oh, they still apply legal principles. They just make sure the ones they adhere to align generally with their preferred outcome.

Oh, they still apply legal principles. They just make sure the ones they adhere to align generally with their preferred outcome.

The apply the principles, not to reach their conclusion, but to rationalize them.

Which gives us a baseball/sabermetric tie in: They use legal principles the way some reporters use statistics and the way a drunk uses a lamp post -- for support, not illumination.

You said that even the Democrats don't believe that the Commerce Clause is Stretch Armstrong - I insist that many actually do believe that.

Only the ones who read the Supreme Court decisions like Wickard v. Filburn, 317 U.S. 111 (1942).

Only the ones who read the Supreme Court decisions like Wickard v. Filburn, 317 U.S. 111 (1942)

Clearly that opinion was written after 1937, and David has already informed us that all opinions since 1937 are invalid.

Apparently they don't, but for the love of god please do not go here.

That thread was awesome and you know it.

Also (and I've posted this before) apparently ZIP Codes are fractals.

Sophistry is good. It allows you to engage in deception and dishonesty on a grand scale with a sense of supreme righteousness. That's the Supreme Court's MO since Marbury v. Madison.

We the People deserve an explanation as to why the Supreme Court has reinstituted SLAVERY again in America.

You forgot BTF's own

It is a terrible day for freedom

Not to mention the countless times we've heard our local libertarians compare taxes to slavery. That argument alone tells you all you really need to know about that sort of ideologue.

The next time someone tells me that Scalia, Alito, and Thomas are in any way minimalists

Just dipping into this thread for two seconds, but...

I don't think anyone claims those three are minimalists. Roberts is the faux-minimalist. Scalia and Thomas are originalists, which is extremely antithetical to minimalism. It's aggressively unconcerned with reducing the judicial role for this sort of decision. Alito is Alito. He's minimalist if that is strategically useful and not if it's not.

Not to mention the countless times we've heard our local libertarians compare taxes to slavery.

It depends which part of slavery you mean -- trade and commerce in human beings, or compelled labor. The income tax does represent compelled labor.

I haven't seen anyone here equate the institution of the income tax and the institution of slavery.

I don't think anyone claims those three are minimalists.

I'd beg to differ on that one, just judging from the amount of caterwauling about the lack of "judicial restraint" that goes on in some conservative circles. But you're right as to their true stripes.

a) the commerce clause was already grotesquely distorted by Supreme Court precedent to provide Congress with unduly expanded power;

How so?

In the 1890s-1930s, legislatures (and Congress) began passing reforms and regulations governing things like workplace safety, the Gilded age judges went nuts, they disliked the new reforms and regulations and relied on two primary tactics:

1: Congress had no power under the Commerce Clause because...manufacturing is not interstate commerce even though the manufactured item may pass state lines later, because it hadn't yet... because MLB is a game.... because- oh after awhile they were just making stuff up, but near the end they had narrowed the commerce clause to something absurd

2: State Legislatures- now here was a problem- you couldn't say they had power under the commerce clause, but they kept passing these invidious laws banning child labor, mandating shortened working hours, safety devices, what to do? INVENT a right, the right to contract, where is it? It's in the constitution, it's inherent and emanates from the other rights (this type of reasoning would come to bite the conservatives on the ass a few generations later).

Then in the 1930s commerce clause law did a 180, not only were things that were obviously related to interstate commerce (well obvious to everyone except DMN and fellow travelers)- but to non-commercial activities that conceivably impacted interstate commerce...

after that Congress got lazy and basically put into every law (I exaggerate slightly) that it was pursuant to Congress's authority to regulate interstate commerce.

Commerce clause jurisprudence fall into rough phases :

Dormant Phase: Congress wasn't doing much of anything- commerce clause jurisprudence consisted of courts telling states they couldn't have their own tariff systems and such

Active phase- late 19th century- Congress began passing laws that the old coots on the SCOTUS didn't like
New Deal- Congress really began passing laws that the old coots didn't like- and they were striking them down (many 5-4 votes) as fast as they could- until FDR got tired of waiting for one more old coot to kick the bucket... and proposed his court packing plan (the Constitution does not say there should be 9 justices) - and one of the old coots switched teams*

New Deal: Commerce Clause was used to justify every little piece of New Deal legislation

Great Society Phase: commerce Cause was used to justify what was essentially civil rights legislation- does Congress have the power to ban lunchroom discrimination, why sure it doe, that commerce!!! (As to why they didn't use equal protection/privileges and immunities...)

Latent phase: slow whittling of commerce clause- for instance the Federal Law banning guns near schools- overruled as exceeding commerce clause authority


*The switch in time that saved nine- I learned later in HS that FDR's court packing scheme was deeply unpopular and had harmed his presidency- I learned later in college that was untrue- EVERYTHING FDR did upset the righties, but his plan was gonna sail through congress - he had better than 2-1 majorities in each house- he had had it with the SCOTUS, so had most congressmen and so had the public.... Can you imagine that? A US president with a better than 2:1 majority in each house?

Haven't had a chance to read the last couple of pages, but did anyone post this yet?

While it's possible that Roberts changed his opinion at the last minute, the evidence that guy offers up is worthless.

First, Obama saying he's confident that the court wouldn't overturn the law is not evidence of "enormous political pressure" on Roberts. Just like Republicans saying they thought the court would overturn the law is not evidence of "enormous political pressure" on Kagan.

Second, the conservative dissent kept referring to "Ginsburg's dissent" because they were discussing Ginsburg's dissent. Ginsburg concurred in part and dissented in part (on the Commerce Clause and the Spending Clause). Scalia's crew mentioned Ginsburg's dissent when they were disagreeing with her on the Commerce Clause, which makes perfect sense. And it's hardly unusual for Scalia to attack concurrences/dissents in his own dissent.

I'm not sure if anyone's posted this yet, but is this today's version of keep the government out of my medicare?

http://www.buzzfeed.com/daves4/people-moving-to-canada-because-of-obamacare

Just make the claim that zip codes represent an actual geographic area.

They don't?

Apparently they don't, but for the love of god please do not go here.

You know what tastes more delicious than anything? Mayonnaise!

Especially when you wash it down with the best kind of beer, while reading the best science fiction writer. Who wants to guess what those are?

So, Darryl Issa's trolling will apparently continue apace. Nothing shocking there, but worth noting.

Who wants to guess what those are?

Facts.

I've found that the position of the chair in front of me when I'm riding on a plane affects my appreciation for the science fiction novel I'm reading.

That's not why I thought you were nuts there (I meant it as a gentle ribbing only). You said that even the Democrats don't believe that the Commerce Clause is Stretch Armstrong - I insist that many actually do believe that.

Well, this Democrat -- a New Deal Democrat -- does and as such, I guess I'd agree... Many Democrats DO believe that. It's the old FDR coalition. Doesn't mean the stretch is limitless nor does it mean careful consideration of its application isn't due -- but yeah, the door was cracked open a century ago and I think, properly. Now we're arguing about what fits through the cracked door -- but make no mistake, the door was opened and I think there are things that fit through it.

And it's hardly unusual for Scalia to attack concurrences/dissents in his own dissent.

hell he even attacked Thomas a few weeks ago...

For Scalia right and wrong begins and ends with what Scalia thinks is right and wrong- he's not the only one who thinks like that- but the internal censor most people have that tell them its not a good or polite idea to let EVERYONE know, well his is broken (and has been for quite some time)

it's not enough for him that he get his say, he also insists on saying why everyone else else wrong- and wrong means disagreeing with Scalia- even if you agree with the same result- of you get there a different way than him- you are wrong.

So, Darryl Issa's trolling will apparently continue apace. Nothing shocking there, but worth noting.

Absolutely - if there was any chance of the House NOT holding Holder in contempt, it's gone now. SCOTUS' decision is bad news for Eric Holder.

For Scalia right and wrong begins and ends with what Scalia thinks is right and wrong- he's not the only one who thinks like that- but the internal censor most people have that tell them its not a good or polite idea to let EVERYONE know, well his is broken (and has been for quite some time)

it's not enough for him that he get his say, he also insists on saying why everyone else else wrong- and wrong means disagreeing with Scalia- even if you agree with the same result- of you get there a different way than him- you are wrong.

What do you expect from a guy raised to worship Mussolini?

/bombthrowing

While it's possible that Roberts changed his opinion at the last minute,

To me, if Roberts changed his mind at the last minute, the the evidence for that would be Scalia's and Alito's demeanor earlier this week (if reports of their demeanor are accurate)

Second, the conservative dissent kept referring to "Ginsburg's dissent" because they were discussing Ginsburg's dissent. Ginsburg concurred in part and dissented in part (on the Commerce Clause and the Spending Clause). Scalia's crew mentioned Ginsburg's dissent when they were disagreeing with her on the Commerce Clause, which makes perfect sense. And it's hardly unusual for Scalia to attack concurrences/dissents in his own dissent.

Spot on. The author of the Salon article may want to pay a little closer attention before saying something so wrong.

Peter Gammons @pgammo

Separated at birth:Jose Canseco and Michelle Bachman

No, I don't know either.

Bad pick. If there's a Bachmann taking injections in a men's room on the down-low, it's not Michele.

Then in the 1930s commerce clause law did a 180, not only were things that were obviously related to interstate commerce (well obvious to everyone except DMN and fellow travelers)- but to non-commercial activities that conceivably impacted interstate commerce...

I think most of us instinctively think that deciding grand issues of liberty and rights based on commerce is absurd, even insulting to our better nature. Just an anecdote to perhaps illuminate that, and inform that mindset. When I was in law school, I remember having a discussion with another law student, an African-American, and I made that exact point. He very calmly told me how in the fifties whenever he and his family would visit their father's brother and his family in Washington DC, it was a pretty big deal. They had to map out their route ahead of time, carefully considering where they could stop to eat, fuel up, use the restroom, motel accommodations, tourist/travelers camps(it may have been like a vacation sight-seeing tour, too) etc. It was not at all a trivial matter to move about the country, especially the deep south if you were black, and such citizens had to very much take into consideration the commerce component as part of that interstate travel.

Absolutely - if there was any chance of the House NOT holding Holder in contempt, it's gone now. SCOTUS' decision is bad news for Eric Holder.

agreed

I think Eric is going to take one for the team now, whether he wants to or not :-)

This should be fun, my understanding is that the House has two procedures they can invoke- one involves turning it over to the US Atty for DC - so they would issue a contempt citation and give it to some one who's boss is Eric Holder... and hijinks ensue

so this would seem to call out for a special prosecutor- is Holder gonna appoint one? Pass a law appointing one?

4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Part of the 14th- what it meant was that if you had bought Confederate War Bonds you were SOL...
This was also violated by more than few ex-Confederate states which later gave pensions to Civil War vets and widows specifically on account of their service in aid of insurrection- but no one did anything about that...

It seems tautological that any 5-4 decision is primarily a political or ideological one as compared to a "pure" legal one.

This was also violated by more than few ex-Confederate states which later gave pensions to Civil War vets and widows specifically on account of their service in aid of insurrection- but no one did anything about that..

Maybe I'm missing something that lawyers get, but how is that a violation? Even if there's no obligation or debt, ostensibly a state could still *choose* to provide the pensions. I mean, Flemming v. Nestor stated that SS payments someone was due weren't actually a debt or obligation, but the government is obviously still able to volunteer paying for it without violating.

The author of the Salon article may want to pay a little closer attention before saying something so wrong.

If he did that sort of thing, he wouldn't be writing for Salon.

Maybe I'm missing something that lawyers get, but how is that a violation?

Not strictly a "violation"- more a loophole- many people who fought for the confederacy or supplied goods to the confederacy were not paid and were "owed" money, but the 14th ruled those debts invalid, the "pensions" were a way around that.

It seems tautological that any 5-4 decision is primarily a political or ideological one as compared to a "pure" legal one.

Not always. There are some nightly badly written statutes out there that need interpreting...

Returning to my post 761- Congress appears to have another route- they can have their Sergeant at arms arrest Holder, drag him to the Congress- and try him right then and there-

hasn't been done for quite awhile (many many years,) but hey it'd make for a great C-Span moment

Not always. There are some nightly badly written statutes out there that need interpreting...

Give Congress some credit; they can write badly written statutes during the day, too...

You are aware that "being quite reasonably suspected of committing massive fraud" is not the same category of crime as "looking Mexican," yes?

You are aware that "fraud" does not mean "things Sam doesn't like," yes?

There is one likely explanation for this: The dissent was the majority opinion when those who voted to overturn the entire ACA signed off on sending their text to the printer. In other words, Chief Justice Roberts changed his vote at the very last possible moment.

It is inconceivable that the dissent reads as it does by inadvertence. We can be sure every word of it was proofread countless times by the dissenters’ 16 clerks, all of whom know how to make a global change on a word processing program.

This part is true. While we won't know for sure until a Justice dies and his papers are released, that's the most logical conclusion.

Another unavoidable conclusion seems to be that the dissenters intentionally left the parts of their text referring to Ginsburg’s “dissent” unchanged. This was a symbolic gesture, intended to reveal, without formally breaking the justices’ code of silence, what the Chief Justice did to them — and, as they no doubt see it, to the country and the Constitution — through his last-moment reversal.

This is just nutty, though.

I dont see how the clarity of the statute applies. If its that unclear that 4/9ths of the SCOTUS cant agree on, shouldnt they agree to strike it down on this principle alone?

I mean, those Justices are basically saying that they are expert enough at legislation that the unconnected Medicare and Medicaid reforms must fall if the mandate does.

Actually, a non-severability analysis is basically saying the opposite: that the court is not an expert at legislation, and picking-and-choosing parts of a statute to allow is legislative rather than judicial. In this particular case, they're saying that the reforms are not 'unconnected' because they were all part of the same financial scheme. Obamacare was not a disconnected series of provisions, but an overall attempt to achieve a certain fiscal balance. If you strike down part of the law, you upset that balance.

eta: Just as a comparison, McCain-Feingold has been the subject of a number of judicial challenges and has been seriously reduced over the course of them. But in none of the decisions did the court throw out the entire law because they found large parts of it unconstitutional. Jesus Christ is that whole section intellectually lazy.

McCain-Feingold contained a severability clause. Obamacare did not.

Dan/MCoA: Can we agree that:

a) the commerce clause was already grotesquely distorted by Supreme Court precedent to provide Congress with unduly expanded power; and

b) upholding Obamacare under the commerce clause would have amounted to an unprecendented expansion of their power under this clause?

Conservatives and libertarians can agree on that, but liberals certainly don't agree with either of those.

This part is true. While we won't know for sure until a Justice dies and his papers are released, that's the most logical conclusion.

Sounds awful tinfoil-hat to me, personally.

The suddenly sheik interpretation by liberal analysts is that John Roberts has followed in the footsteps of Rehnquist and Charles Evans Hughes back in FDR's day.... that Roberts had to play a bit of bigger picture thinking here, essentially agreeing with the conservative arguments, but thinking that this was a dangerous case for the court to just outright strike. In other words - Roberts had to referee a "4-1-4" decision.
This is from DailyKos' Adam B (whom I think actually posts here as well), and I think it's a reasonable leftside analysis.

Ezra Klein agrees, but uses Charles Evans Hughes instead of Rehnquist.

I think I'd agree with both of these readings.

It seems tautological that any 5-4 decision is primarily a political or ideological one as compared to a "pure" legal one.

Ezra Klien making a good argument that today's decision should be more rightly considered 4-1-4 than 5-4. Worth the full read.

You are aware that "fraud" does not mean "things Sam doesn't like," yes?

Probably why I merely suggested that they should be investigated, rather than thrown in the pit Darryl Issa has waiting for Eric Holder beneath the Capitol, or a Gitmo cell with no trial or evidence presented.

It must really irk you that I am a better defender of liberty than you, huh?

Just to cap off Romney's great day, the latest Fox poll shows Obama 5 points ahead.

But the funniest thing I've seen today was an old TV spot that Massachusetts ran under Romney----that showed Tim Wakefield touting the benefits of Romneycare. Priceless.

Ezra Klien making a good argument that today's decision should be more rightly considered 4-1-4 than 5-4.

That was my immediate reaction upon reading it.

"Let's talk about [US Supreme Court Chief Justice John] Roberts. I'm going to tell you something that you're not going to hear anywhere else, that you must pay attention to. It's well known that Roberts, unfortunately for him, has suffered from epileptic seizures. Therefore he has been on medication. Therefore neurologists will tell you that medication used for seizure disorders, such as epilepsy, can introduce mental slowing, forgetfulness and other cognitive problems. And if you look at Roberts' writings you can see the cognitive disassociation in what he is saying,"

- Michael Savage.

Posner's take

Sounds awful tinfoil-hat to me, personally.

We're to believe that there were 3 written opinions each over 50 pages, but that there was last minute vote changing to turn a majority opinion to a dissent. That's the sort of crazy #### that happens in a Sorkin script.

We may never know for certain, but I don't for a moment believe that every one of the 9 knew who was writing what opinion weeks ago.

I wish I could remember which of my professors told us how SCOTUS works behind the scenes in terms of the arguments/discussions between the 9, and how they divy up opinions, etc; and the details enough to share.

So did anyone anywhere predict this result, a 5-4 decision upholding the mandate as a tax, but not under the commerce clause, with Roberts siding with the liberal justices?

Apparently the right is upset because Obama said this wasn't a tax, but then his administration went out and argued it (in part) as a tax, and then the court upheld it as a tax.

Shrug. John Sterling says "That's baseball!" Well, this is politics.

Whether the Republicans can make any hay with this in the election - who knows.

2: State Legislatures- now here was a problem- you couldn't say they had power under the commerce clause, but they kept passing these invidious laws banning child labor, mandating shortened working hours, safety devices, what to do? INVENT a right, the right to contract, where is it? It's in the constitution, it's inherent and emanates from the other rights (this type of reasoning would come to bite the conservatives on the ass a few generations later).

The Supreme Court of that era upheld state laws against child labor, no matter how many times sanctimonious liberals try to pretend otherwise. To quote Prof. Bernstein:

So let me repeat it one more time. In the middle of the so-called Lochner era, the Supreme Court upheld state regulation of child labor by a 9-0 vote (Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913)). I’ve blogged before that I’m not aware of ANY court in any American jurisdiction ever holding that child labor laws violate a constitutional right to economic freedom or “liberty of contract”, and no one has written in to correct me (for examples of state courts upholding child labor laws within a few years of the Lochner decision, see Ex Parte Weber, 149 Cal. 392 (1906); United Steel Co. v. Yedinak, 87 N.E. 229 (Ind. 1909); Bryan v. Skillman Hardware Co., 76 N.J. 45 (1908); People v. Taylor, 192 N.Y. 398 (1908); State v. Shorey, 86 P. 881 (Ore. 1906)). All fifty (oops, 48) states passed child labor laws before 1937, when Lochner was overruled. Economic liberty concerns were not a barrier to the spread of such legislation.

I have no idea what state law about "safety devices" you're accusing the Supreme Court of striking down.

So did anyone anywhere predict this result, a 5-4 decision upholding the mandate as a tax, but not under the commerce clause, with Roberts siding with the liberal justices?

Tom Goldstein didn't predict the reasoning, but he did peg Roberts as the key to the decision:

In the end

In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow. Far less important, I expect the principal opinion will be written by the Chief Justice; a majority of the Court will find it has jurisdiction; and the challenge to the Medicaid expansion will be rejected.

Most observers disagree. There are certainly good reasons to believe the Court will invalidate the mandate. Most important, at the oral argument, the questions of two critical Justices – Justice Kennedy and the Chief Justice – were on the whole critical of the mandate’s constitutionality.

But in the end, based on the entire mix of information I have, I think the mandate will not be struck down tomorrow. (I don’t have any inside information, nor does anyone else.) My prediction includes the possibility that there will not be a single majority opinion for the theory on which the mandate is upheld, and even the thin possibility that the Court will not have a majority to find the mandate constitutional.

My level of confidence isn’t overwhelming, but it’s good enough to give a concrete prediction. We’ll see.

Man this has been an epic day in internet history and it just shows no signs of stopping.

it's not enough for him that he get his say, he also insists on saying why everyone else else wrong- and wrong means disagreeing with Scalia- even if you agree with the same result- of you get there a different way than him- you are wrong.

This is a rather puzzling criticism. You're pretty much describing judging, and then criticizing Scalia for engaging in it. He's paid to do two things: (1) interpret the law, and (2) explain why his interpretation is correct and other interpretations are wrong.

Scalia makes people on the left crazy.

So did anyone anywhere predict this result, a 5-4 decision upholding the mandate as a tax, but not under the commerce clause, with Roberts siding with the liberal justices?

Laurence Tribe, quoted earlier this week. I didn't laugh when I heard this.
“I do think the court will surprise a lot of people when it probably upholds the Affordable Care Act in an opinion written by another former student of mine, Chief Justice Roberts this Thursday,” Tribe said on MSNBC.”You can be deeply conservative and still believe that the Affordable Care Act is completely consistent with the United States Constitution.”

The Supreme Court of that era upheld state laws against child labor, no matter how many times sanctimonious liberals try to pretend otherwise.

True, but it's somewhat misleading not to mention that the Supreme Court also overturned a federal child labor law in Hammer v. Dagenhart, a 1918 decision that wasn't effectively overturned until the U.S. v Darby Lumber Company case in 1941. It's as if the Supreme Court had upheld state civil rights laws but overturned the 1964 Civil Rights Act, leaving the interests of southern blacks to the whims of the Dixiecrat state legislatures.

it's not enough for him that he get his say, he also insists on saying why everyone else else wrong- and wrong means disagreeing with Scalia- even if you agree with the same result- of you get there a different way than him- you are wrong.

I'm also confused about this criticism. As the current discussion shows, isn't the reasoning behind a judgment extremely important in terms of setting precedent? It seems like the discussion of the Commerce Clause in this very thread shows why it's important to get to the result the "right way".

Speaking of which, for those who favor an all-expansive view of the Commerce Clause (or simply don't care about the text or intent of the Constitution), do you think there should be any limits on federal government power? If so, what are those limits and how should they be determined?

Speaking of which, for those who favor an all-expansive view of the Commerce Clause (or simply don't care about the text or intent of the Constitution), do you think there should be any limits on federal government power? If so, what are those limits and how should they be determined?

By liberals.

One accurate headline could read: "Roberts, Court, rejects Obama's argument, declares mandate a tax, uphold law."

Nowadays in the legal profession, I spend my time evaluating and analyzing the practical consequences of laws, rulings and interpretations by courts, and mainly regulatory bodies (SEC, FINRA, OCC, DOL, etc.). Con Law bores me to tears. Now, I'm most interested now in how the IRS will be prepared to enforce this tax. Somebody ought to tell them this is a tax.

So did anyone anywhere predict this result, a 5-4 decision upholding the mandate as a tax, but not under the commerce clause, with Roberts siding with the liberal justices?

I forgot who pointed it out, but the one non-substantive thing about this decision that stands out more than anything is that it was a surprise. In a city where everything leaks, even national security information, the court takes secrecy seriously.

Speaking of which, for those who favor an all-expansive view of the Commerce Clause (or simply don't care about the text or intent of the Constitution), do you think there should be any limits on federal government power? If so, what are those limits and how should they be determined?

This is a stupid question. The constitution, it turns out, consists of more than just the Commerce Clause. It consists of a variety of clauses and amendments which in various ways restrict state power. I mean, do you really need me to list the limit on the power of the government to restrict free speech and free association, to perform certain kinds of searches and seizures, to force me to quarter troops in my home, and so on?

Broadly speaking, rights come into conflict. The rights of people to various personal freedoms and the rights of people to baseline welfare, and many others, come into conflict. Constitutional scholarship is one form of the weighing of these rights and the determining, in context, of where different powers begin and end.

it's not enough for him that he get his say, he also insists on saying why everyone else else wrong- and wrong means disagreeing with Scalia- even if you agree with the same result- of you get there a different way than him- you are wrong.

This is a rather puzzling criticism. You're pretty much describing judging, and then criticizing Scalia for engaging in it. He's paid to do two things: (1) interpret the law, and (2) explain why his interpretation is correct and other interpretations are wrong.

Fair enough, but if Scalia can't take the heat (and I'm not saying that he can't), he can always retire to hunt ducks with Dick Chaney. This goes for any Supreme Court justice, but especially those who are as outspokenly political and partisan as Scalia.**

And Romney has it exactly right: The ultimate fate of the ACA will be decided at the polls this November, and also in subsequent elections. Not that any Congress in the foreseeable future is likely to "overturn" the law---that's a right wing fantasy---but a Romney victory could conceivably lock up the Supreme Court for the next 20 years, and a Republican control of Congress could effectively sentence the law to death by a million cuts.

**Or the late Justice William O. Douglas, to cite an only slightly less extreme liberal counterpart.

Broadly speaking, rights come into conflict. The rights of people to various personal freedoms and the rights of people to baseline welfare, and many others, come into conflict. Constitutional scholarship is one form of the weighing of these rights and the determining, in context, of where different powers begin and end.

This doesn't make sense. If one believes in personal freedom, then the so-called "rights" of people to "baseline welfare" can't infringe on that.

---

In any event, Matt, I'm actually interested in your answer to my inquiry in post 727:

Dan/MCoA: Can we agree that:

a) the commerce clause was already grotesquely distorted by Supreme Court precedent to provide Congress with unduly expanded power; and

b) upholding Obamacare under the commerce clause would have amounted to an unprecendented expansion of their power under this clause?

Fair enough, but if Scalia can't take the heat (and I'm not saying that he can't), he can always retire to hunt ducks with Dick Chaney.

Congratulations, Andy. This is the first spelling mistake I've seen you make in half a decade.

This goes for any Supreme Court justice, but especially those who are as outspokenly political and partisan as Scalia.**

How is Scalia any more partisan than Ginsburg or Souter or whoever?

And what justice can't stand criticism?