Reading Roberts II

M2RB:  Led Zepplin, live at Royal Albert Hall

Been Dazed and Confused for so long it's not true.
Wanted a man, never bargained for you.
Lots of people talk and few of them know,
Shrub's Warren was created below.

'Nuff Said.

From Chief Justice Roberts' opinion for the majority:

"If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution. . . . 

The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity.  The Federal Government does not have the power to order people to buy health insurance. . . . The Federal Government does have the power to impose a tax on those without health insurance." (National Federation of Independent Business v. Sebelius, Slip op. at 3, 41-42, 44)  

"Our precedents recognize Congress’s power to regulate “class[es] of activities,” Gonzales v. Raich, 545 U. S. 1, 17 (2005) (emphasis added), NOT CLASSES OF INDIVIDUALS, APART FROM ANY ACTIVITY IN WHICH THEY ARE ENGAGED, see, e.g., Perez, 402 U. S., at 153 (“Petitioner is clearly a member of the class which engages in‘extortionate credit transactions’ . . .” (emphasis deleted)).  THE INDIVIDUAL MANDATE'S REGULATION OF THE UNINSURED AS A CLASS IS, IN FACT, PARTICULARLY DIVORCED FROM ANY LINK TO EXISTING COMMERCIAL ACTIVITY.

"THE PROPOSITION THAT CONGRESS MAY DICTATE THE CONDUCT OF AN INDIVIDUAL TODAY BECAUSE OF PROPHESIED FUTURE ACTIVITY FINDS NO SUPPORT IN OUR PRECEDENT. We have said that Congress can anticipate the effects on commerce of an economic ACTIVITY (not INactivity - Sophie). See, e.g., Consolidated Edison Co. v. NLRB, 305 U. S. 197 (1938) (regulating the labor practices of utility companies); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964) (prohibiting discrimination by hotel operators); Katzenbach v. McClung, 379 U. S. 294 (1964) (prohibiting discrimination by restaurant owners). BUT WE HAVE NEVER PERMITTED CONGRESS TO ANTICIPATE THAT ACTIVITY ITSELF IN ORDER TO REGULATE INDIVIDUALS NOT CURRENTLY ENGAGED IN COMMERCE. Each one of our cases, including those cited by JUSTICE GINSBURG, post, at 20–21, involved PREEXISTING ECONOMIC ACTIVITY. See, e.g., Wickard, 317 U. S., at 127–129 (producing wheat); Raich, supra, at 25 (growing marijuana).

(Exactly what I wrote in April 2010)

“The Framers . . .  gave Congress the POWER TO REGULATE COMMERCE, NOT TO COMPEL IT ... [Otherwise you] undermine the principle that THE FEDERAL GOVERNMENT IS A GOVERNMENT OF LIMITED AND ENUMERATED POWERS.” 

“Under the Government’s theory, Congress could address [America’s] diet problem by ordering everyone to buy vegetables.”

"[A]llowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation and—under the Government's theory—empower Congress to make those decisions for him." 

"The Commerce Clause is NOT a general license to regulate an individual from cradle to grave, simply because he will PREDICTABLY ENGAGE IN PARTICULAR TRANSACTIONS. ANY POLICE POWER TO REGULATE INDIVIDUALS AS SUCH, AS OPPOSED TO THEIR ACTIVITIES, REMAINS VESTED IN THE STATES." 


As I wrote on 2 April 2010:

"McCulloch does not stand for the proposition that Congress has plenary power over citizens and the several states nor has its powers been granted to a body in absolute terms, with no review of, or limitations upon, the exercise of the power. "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for  the accomplishment of objects not entrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land." C.J. John Marshall, writing for the majority in McCulloch v Maryland, 17 U.S. 316 (1819)."

Progs, are you still going to argue, as Hal Donahue always did, that the "10th Amendment is dead. The Civil War settled the "states' rights" issue? Don't forget you lost the Medicaid expansion on 10th grounds.  Individual, sovereign states maintain sole police power.

"Second, Congress’s ability to use its taxing power to influence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitiveexactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority.See, e.g., United States v. Butler, 297 U. S. 1 (1936); Drexel Furniture, 259 U. S. 20. More often and more recently we have declined to closely examine the regulatory motiveor effect of revenue-raising measures. See Kahriger, 345 U. S., at 27–31 (collecting cases). We have nonetheless maintained that “‘there comes a time in the extension of the penalizing features of the so-called tax when it losesits character as such and becomes a mere penalty with the characteristics of regulation and punishment.’” Kurth Ranch, 511 U. S., at 779 (quoting Drexel Furniture, supra, at 38)."

"We have already explained that the shared responsibility payment’s practical characteristics pass muster as  a tax under our narrowest interpretations of the taxing power. Supra, at 35–36. Because the tax at hand is within even those strict limits, we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it. It remains true, however, that the “‘power to tax is not the power to destroy while this Court sits.’” Oklahoma Tax Comm’n v. Texas Co., 336 U. S. 342, 364 (1949) (quoting Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928) (Holmes, J., dissenting)).

“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.”

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

Translation: Obama voters, enjoy your middle class tax increase, you suckas. We aren't ruling on whether this "thing" is sound policy and we aren't going to protect you from a President that broke his "not one, thin dime" pledge.

Obama:  "Support your local, private, health insurance corporation!  Pay 'taxes' to it!!!"

"Justices Scalia, Kennedy, Thomas, and Alito forcefully disagree with Roberts in their dissent. "[W]e cannot rewrite the statute to be what it is not," the four Justices write. "[W]e have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a 'penalty.' Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in §5000A(b) a 'penalty.'"

The dissenting Justices also argue that "judicial tax-writing is particularly troubling," since the Constitution requires tax bills to originate in the House of Representatives, "the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off."

[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. ...

The Government’s opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners’ Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression."



Several people have asked if I had inside info because of this.   No, the whole tax thing took everyone by surprise and I mean EVERYONE, left, right, and centre.  I did have a bad feeling about Roberts that I tried to ignore over the last few days.  Unlike most people, I was not worried in the slightest about Kennedy.  Isn't that strange?  I've predicted that he would throw the whole thing out for years.   Who's surprised that we got Shrub's Warren from Junior just like we got Souter from Pappy?



Update 06.29.12:  A troll was singing his hosannas earlier about how, at least, now the situation with Obamacare was "clarified."   Does it look like Justice Ginsburg, writing for herself and on behalf of the other 3 Progs, thinks that Roberts' opinion has "clarified" things?

"Rather than evaluating the constitutionality of the minimum coverage provision in the manner established by our precedents, THE CHIEF JUSTICE relies on a NEWLY-MINTED CONSTITUTIONAL DOCTRINE. The COMMERCE POWER DOES NOT, THE CHIEF JUSTICE announces, PERMIT CONGRESS TO "COMPE[L] INDIVIDUALS TO BECOME ACTIVE IN COMMERCE BY PURCHASING A PRODUCT."

"In failing to explain why the individual mandate threatens our constitutional order, THE CHIEF JUSTICE disserves future courts. How is a judge to decide, when ruling on the constitutionality of a federal statute, whether Congress employed an “independent power,” ante, at 28, or merely a “derivative” one, ante, at 29. Whether the power used is “substantive,” ante, at 30, or just “incidental,” ante, at 29?

THE INSTRUCTION THE CHIEF JUSTICE, in effect, PROVIDES LOWER COURTS: YOU WILL KNOW IT WHEN YOU SEE IT."

Mo: Reminds me of Justice Potter Stewart's famous words about obscenity:

“I shall not today attempt further to define [obscenity]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…" 

"In any event, THE CHIEF JUSTICE’s limitation of the commerce power to the regulation of those actively engaged in commerce finds no home in the text of the Constitution or our decisions. Article I, §8, of the Constitution grants Congress the power “[t]o regulate Commerce . . .among the several States.” Nothing in this language implies that Congress’ commerce power is limited to regulating those actively engaged in commercial transactions. Indeed, as the D. C. Circuit observed, “[a]t the time the Constitution was [framed], to ‘regulate’ meant,” among other things, “to require action.” See Seven-Sky v. Holder, 661 F. 3d 1, 16 (2011).

“Other provisions of the Constitution also check congressional overreaching.  A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion or infringed on a liberty interest protected by the Due Process Clause.”

The trolls are so precious when they're gullible, which is pretty much all of the time! 


Dazed and Confused - Led Zepplin

Been Dazed and Confused for so long it's not true.
Wanted a woman, never bargained for you.
Lots of people talk and few of them know,
soul of a woman was created below.

You hurt and abuse tellin' all of your lies.
Run around sweet baby, Lord how they hypnotize.
Sweet little baby, I don't know where you've been.
Gonna love you baby, here I come again.

Every day I work so hard, bringin' home my hard earned pay
Try to love you baby, but you push me away.
Don't know where you're goin', only know just where you've been,
Sweet little baby, I want you again.

Been dazed and confused for so long, it's not true.
Wanted a woman, never bargained for you.
Take it easy baby, let them say what they will.
Will your tongue wag so much when I send you the bill?