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.
Four issues were argued and decisions rendered. The most significant and most controversial provision in Arizona’s law was upheld by the unanimous vote of eight of the nine Justices. Judge Kagan recused herself.
The other three provisions of Arizona’s law were struck down on a 5 to 3 divided vote.
Arizona police may check the immigration status of an individual stopped on reasonable suspicion of having committed a crime.
1. Arizona state law that mirrored existing federal law making it a crime not to complete or carry immigration papers.
2. A provision of Arizona law that made it illegal for an illegal immigrant to apply for or hold a job.
3. A provision of Arizona law allowing police to arrest and detain an illegal alien not yet convicted of a deportable crime. Police must release the individual after telling them to show up later for a hearing.
Justice Scalia wrote the dissent.
Here is the decision.
Here are excerpts from Scalia’s dissent.
Post Script – The case is actually identified as AZ vs. US but I think the United States against Arizona better reflects the reality.
Two highly significant issues are being prepared for presentation before the Supreme Court. One is the United States Government vs. the State of Arizona. The argument put forth by the Obama administration is that the federal government is given exclusive power to regulate immigration. The question then is what power does a state have to protect its own people when the federal government imperils the states citizens by failing to enforce its own laws.
The second significant item is the constitutionality of Obamacare. No case has actually been filed as yet but one is fully expected. At one count, 38 states had joined or were considering joining in a suit to argue the health care plan is unconstitutional. The issue here is the “individual mandate”. The plan requires everyone to carry insurance or pay money to the government for failure to do so. The crux of the argument lies in the characterization of that money. Is it a tax or a penalty?
If it is a tax, Obamacare is more likely to be found constitutional under the clause that gives the federal government to levy tax for the national welfare of the people. However, if it is a penalty, Obamacare is more likely to be found unconstitutional under the interstate commerce provisions which give Congress the power to regulate, but not to mandate interstate commerce.
The states will argue that the money is a penalty. The Obama administration will argue it is a tax. It would be interesting if President Obama were to be called to testify about his assertions to the American people that his plan would actually save money and therefore no new taxes would be required to pay for it. That won’t happen, of course.
Many parallels have drawn between Franklin D. Roosevelt and Barack H. Obama. Now there is another one. Both had key provisions of their transformative programs struck down by the courts. FDR’s National Recovery Act (NRA) was declared unconstitutional by the U.S. Supreme Court. Now the core of Obama’s Patient Protection and Affordable Care Act, aka Obamacare, has been declared unconstitutional by a U.S. District Court.
Of course, a District Court is not the final word and only one provision of the PPACA (Obamacare) is affected. But remember what Obama said when he spoke to labor union members, “single payer is the goal.” The District Court has struck at the heart and shattered Obama’s dream. If it goes to the Supreme Court of the land, the President can count on the ladies to lean his way. The ladies, of course are Ginsburg, Sotomayor and Kagan. (A somewhat motley group, no?)
If Obama gets his way with the ladies and SOTUS reverses TUSDC (The U.S. District Court) there is still 2013. If the courts do not provide relief from Obamacare the legislature can change the law.
Just in the last few days, Obama has lost one to the Democrats, one to the courts and one to Bill Clinton. When we say the “Dude is Done”, the dude is done.