Tag Archives: Commerce Clause


Why?  That’s the question now, Why?

(CBS News) Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

It gets even more bizarre.  It was Justice Kennedy who fought the hardest to bring Roberts back to his original stance but it was to no avail.  Roberts couldn’t be persuaded to change his second opinion.

The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent.  They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.

We must keep in mind that the scenario CBS describes is hearsay and will likely remain as such.  Nevertheless, it’s plausible.  If Roberts did come down on one side then switch to the other it was because his first thought was, as a Supreme Court Judge, to protect the integrity of the Constitution.  Then later, as the Chief Justice he decided to protect the integrity of the Court by not miring it in the controversy.  As I speculated in an earlier post he passed the buck to the voters.  In so doing, he harmed the Court because now the controversy is the Court.

Read more…


Justice Roberts’ decision is not controversial only because it let Obamacare stand, there is also controversy about the consequences of the decision going forward.  Some good arguments have been given claiming at least partial victory or defeat for both the left and the right in the near and in the long term.  There is also a logical opinion that the court has passed the buck by returning the decision to the voters.

One common line of thought is that the decision put a cap on the lefts widespread abuse of the Interstate Commerce Clause to justify all manner of expansion of federal powers.  Mark, an attorney commenting on our earlier post takes a contrary view.  In his opinion an even wider door was opened to Constitutional erosion by finding the Affordable Care Act can stand on the basis of the federal governments unquestioned right to tax.

Justice Ginsburg adds to the ‘we won but we lost’ confusion by taking the unusual, albeit not unprecedented step of writing a dissent against a decision she voted in favor of.

Charles Krauthammer declares Justice Roberts’ action was brilliant.  Rush Limbaugh swears it was stupid.  Mitt Romney vows to make the repeal of Obama care the immediate focus of his presidency and he may have the House and the Senate with him to do it.  Nancy Pelosi says now it’s cinched; the Affordable Care Act is here to stay.

If it turns out that Obamacare is repealed in the next Congress, it will mean the right was the ultimate winner of the Supreme Court’s decision.  If Obama is re-elected it will mean the left was the winner.  If Obamacare is repealed and replaced by health care reform that preserves choice and quality and broadens demographic coverage at an honestly affordable price, the people and the right will have won.  The left will have lost because health care users will have maintained control of their own destiny and not surrendered to the specter of socialized medicine.

We just have to wait.


The libs get excited, rightly so.  Obama’s ratings get a blip up, but will they hold?  The House will vote on a bill to repeal Obamacare, but it won’t pass the Senate.  Karl Rove takes his wife out for a beer —  no champagne and caviar tonight.

Now the ball is in Romney’s court.  On the Tuesday before Thursday’s announcement of the Supreme Court’s decision Romney said “If it is deemed to stand, then I’ll tell you one thing: We’re going to have to have a president, and I’m that one, that’s going to get rid of Obamacare.  We’re going to stop it on Day 1.”  To accomplish that Republicans will need to win control of the Senate as well as the presidency.  If they do, then expect some form of repeal and replacement.

The Supreme Court’s decision that the law is constitutional is not an endorsement of its advisability, only a decision that it is legal.  Chief Justice Robert’s opinion was explicit about that.  Obamacare will rival jobs and the economy as the number one issue between now and November.  That is not a plus for Republicans.

On a brighter note a greater threat was averted.  During the debate prior to the Bill becoming law, the President emphatically denied the mandate was a tax.  Coming before the court, however, the administration’s attorneys argued the opposite; that the mandate is a tax.  The court agreed, more or less, more more than less.  The opinion read that the mandate ‘could be’ seen as a tax, in which case it ‘would be’ constitutional.  If the court had ruled that Obamacare could stand under Commerce Clause, such a decision would have gutted the Constitution setting a precedent that almost anything would be allowed under the clause.

Rumors are abounding that a deal was made or that Roberts bent to intimidation.  I don’t think we have sunk that low.