The Bishop and the Butterfly: Murder, Politics, and the End of the Jazz Age

    The Supremes approved the mandate

    " Dude I owe you  big time .Come over one day after work and I'm opening a bottle of  Bollingers " FT 6/ 28*

    "I'm opening a Bollingers tonight" Flavius,right here

     

    * as part of a massive fraud to rig the Libor  to Barclays' advantage

    Comments

    Here's a comment from a lawyer reacting to Andrew Sullivan's live blog:

    What I think a lot of people are missing in this case is its connection to that foundational Supreme Court case, Marbury v. Madison (to which the Chief Justice cites several times). Marbury is an interesting study; essentially it was a political battle between Jefferson and the Federalists. John Marshall, presiding Chief Justice, most definitely held with the latter. In deciding the case, Marshall pulled an impressive feat of judicial jujitsu; he found for Jefferson's side, but announced the principal of Judicial Review, something with which Jefferson would have disagreed. But Jefferson could hardly caterwaul about a case he had 'won.' Jefferson won in the short term, Marshall, arguably, in the long term. Thence to Roberts' opinion.

    He did uphold the mandate as a tax, but specifically said it was beyond the Commerce Clause power. Much of the opinion is dedicated to explicating why this is so (and adopting the anti-ACA arguments for such). I think Roberts has taken a lesson from his famed predecessor. By upholding the mandate as a tax, but deciding the Commerce Clause issue against what would seem to be the weight of precedent, he may be hoping to hand conservatives the long-term win.

    If Wickard v. Fillburn (generally seen as the broadest Commerce Clause case) is one day overturned, as seems likely, much of the language will be taken from the Chief Justice's opinion.

    To my mind, Roberts didn't want to bless an expansion of the government's power, but even more didn't want to take new business away from the corporations that make up the health industry.


    I think this view is probably incorrect, for only Justice Roberts among the majority would not have also upheld on Commerce Clause grounds.  Justice Ginsburg's opinion was joined by Sotomayor in toto and Breyer and Kagen with regard to the relevant section in which Ginsburg states she would have upheld under the Commerce Clause.  So the views on the Commerce Clause as applied by Roberts in this case are solely his own.  If a future Supreme Court finds his analysis persuasive, a majority may adopt that view and narrow the application of the Commerce Clause in the way Roberts would.  But they are not bound to do so by this decision.


    This is good on understanding what the ruling really said and what Roberts did (it contradicts your headline, BTW--the ruling did not approve a "mandate"devil):

    'Looks Like a Tax': A Simple Guide to Today's Historic Supreme Court Ruling
    By Derek Thompson, The Atlantic, June 28

    [....]

    And so, this is the way health care reform survives. Not as a mandate. But as a tax.

    [....]

    In the end, four justices voted to strike down the entire health care law. Four justices deemed it appropriate under the commerce clause. And, in the middle, Chief Justice John Roberts concluded that the entire health care law could live because the mandate in question can be legally justified under Congress's power to tax.

    Here is his argument, simple as I can make it.

    The health care mandate forces individuals to purchase insurance. This puts it in the vicinity of the commerce clause, which regulates interstate activity. But not buying health care, Roberts wrote, is more like interstate inactivity. And Congress doesn't have the right to regulate us while we're not doing something [....]

    Thompson points out an interesting incongruity that may end up being more important than he thinks: that Obama has been known to argue that it's a mandate, not a tax!:

    And that's exactly the conclusion that Roberts reached: Paying a penalty, which is calculated based on your revenue, to the IRS, in a way that raises revenue, is essentially like paying a tax. The individual mandate makes going without insurance "just another thing the Government taxes," he wrote, "like buying gasoline or earning income." And if going without insurance is just another thing the government taxes, it is protected by Congress's constitutional power to tax -- even if the administration doesn't want to call it a tax. Here's Roberts with the money graph:

    Edit to add: And you know what? I totally buy Roberts' argument. We are free to live in sin rather than getting married, but we pay a tax penalty for doing so; we are free to rent rather than buy our home but we pay a tax penalty for doing so, etc. Sooo, here's the problem I wonder about: what's to prevent a GOP Congress removing the penalty? Or even a split Congress like we have now, in run up to elections, removing the penalty because a media campaign has made it an unpopular point of contention surrounding the election? In effect, getting rid of the "mandate"?


    Now the Wall Street Journal is stressing the same explanation: Supreme Court Upholds Mandate as Tax, and again, I wonder: what's to prevent Congress from getting rid of this tax/penalty, effectively getting rid of "the mandate"?


    OBAMA OVERREACHED 

    Congress had the power to tax all along, they were not entitled to a New Federal power 

    Instead of focusing the nations attention on job creation, or underwater homeowners WE were distracted on  "making a mountain out of a mole hill"

    Obamas signature plan; an Obama administration, trying to grab more power, than that granted by the Constitution. 

    When the democrats were in the majority, they could have just raised taxes, by ending the Bush tax cuts, and expanded a program, already in place "MEDICARE FOR ALL" 

    Imagine how much better off the country would have been, with Congressional cooperation, with Republicans being the minority of course ?  Maybe the Democrats, wouldn't have lost at the mid terms; had Obama not overreached?

    http://dagblog.com/reader-blogs/supremes-approved-mandate-14111#comment-158254


    If Congress were to mandate Medicare for all, why in your mind would that be an unobjectionable, friendly mandate, vs. the mandate incorporated into ACA?  Is your objection to Congress mandating health insurance coverage for everyone?  To Congress mandating that individuals purchase health insurance from, in many cases, private for-profit providers?  


    Did you not read the opinion, or did not get the sense of it?

    “Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchas­ing health insurance,.......... not whether it can.”           Chief Justice Roberts 

    Whether it can what ? Has it "PROPERLY EXERCISED"

    Obama and the Congress were seeking more power, than the framers of the Constitution stated, when they said “this is the power granted by the people and no more” 

    Obama and the Congress weren’t satisfied with the "properly exercised taxing power, to encourage purchasing health insurance;" they already had the ability to tax,

    Obama and the Congress wanted the ability to MANDATE that EVERYONE  BUY.  That’s more than taxing power, it’s an abuse of the commerce clause. 

    What's next, everyone should vote or be fined? Everyone should buy and wear a flag lapel or be fined? Everyone should eat broccoli or be fined?  

    That abusive power grab, incited those who agree, the Federal Government of WE the people, has limitations.

    That incitement, rallied the Tea party and the democrats lost the midterms.

    We don’t need another future President or Congress, to use this precedent mandate, to extend to itself more power.

    Bush grabbed more than he should have, why let Obama grab more; until finally the Constitution is null and void ?

    WE don’t want to address in the future, a law of unintended consequences, because we failed to stop this MANDATE

    We didn’t need a mandate.

    TAKE THE CAPS OFF, all income, to support ACA .  Medicare minimum for all. That’s a taxing issue, a power already granted by the Constitution.

    If the rich, want more than the minimum; let them purchase a separate policy. That's commerce. 

    A taxation with representation, not a forced mandate.


    Yes if Obama hadn't fought for the ACA he could have done other things.I don't think the Nation as a whole would have.

    Like others here you probably overestimate what the Dem's "majority"(including Ben Nelson and Joe Lieberman) could have achieved during the six months between the Minnesota election decision and that in   Mass .

     


    Nothing prevents them from doing it.  But that just means nothing prevents them from getting rid of the mandate.  They can always vote to repeal or amend any law they passed previously.  I don't think the Court's upholding the mandate as a tax makes it any easier for Congress to get rid of it.


    Yeah my headline was wrong. At that point the A item was getting the news from Aix to Ghent- oops that was a different edition.

     Well there was 

    There will be one piece of tallow with a flaming wick and more than that if...........

    Those damn limeys were actually rowing

     

    mandate approved

     

     was short hand for that. Wrong of course, but that's often true of my vaporings

     


    The sheer intensity of winger and GOP distress over this decision may, as one effect, prompt some progressive-minded folks to entertain the thought that maybe the legislation wasn't all bad after all.


    You mean like this from Ben Shapiro, syndicated columnist, bestselling author, Harvard Law grad, Breitbart.com Editor-At-Large, Freedom Center Shillman Journalism Fellow:

    This is the greatest destruction of individual liberty since Dred Scott. This is the end of America as we know it. No exaggeration.

    Or this:

    Sen. Rand Paul's (R-Ky.) office:  “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional...." Sen. Rand Paul.

    More on reaction in Jesusland at Driftglass.


    That site is spectacular, I haven't laughed so much since well, a day or two again, when I watched Louis CK tell Leno he was the Weirdest looking man on the face of the earth.


    Yes (rhetorical question, though, I realize...).


    "The Framers gave Congress the power to regulate com­merce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this un­derstanding. There is no reason to depart from that un­derstanding now.....

    The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”.....

    Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchas­ing health insurance,.......... 

    not whether it can.

     Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one."

    http://www.latimes.com/news/politics/la-pn-excerpts-from-chief-justice-robertss-opinion-on-healthcare-reform-20120628,0,5775958.story?page=2&track=rss

    Well reasoned. 

    MEDICARE FOR ALL


    One of the stories yahoo.com news is featuring is speculation about whether a Romney Administration would repeal Obamacare.  If elected, what he very possibly could do, and very possibly would do in my view, would be to either sabotage, or cherry pick (implementing only the provisions his Administration likes) its implementation through the regulatory and executive branch implementation processes.  Even IF the GOP wins back the Senate, IF Democrats were willing to filibuster a repeal attempt, 60 votes would be needed--unless repeal supporters tried to accomplish that using the reconciliation process, which is filibuster-proof.