Surprise!
I'm no legal scholar (or vehement hater of the Affordable Care Act), but the chief justice's reasoning on this decision does seem to be quite a stretch. The law was declared to not be a tax, otherwise the court was supposed to wait longer before hearing the case, then the law was upheld because it could be construed as a tax and congress has broad powers for taxation. Hmm. Plus we can now be taxed for something we don't do (is there any precedent of such a thing?). As the dissenting opinion put it, "The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity" (567 U. S. ____ (2012) SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting).
I'm wondering if Roberts would be scheming enough to side with the majority just so he could write the opinion, that somehow that would be more important in the long run.
I'm guessing overall this is a plus for the Romney campaign. Can't have repealing Obamacare as a major campaign focus if it's already been struck down.
Comments
Wickard is a commerce clause case, so I suspect that quote was not an attach on the tax power reasoning.
I guess we all need to go and learn about the tax power now. I've read page upon page about the commerce clause argument. Almost all of day two was dedicated to it. Paul Clement argued the tax piece in like 3 minutes. I didn't seem like anyone was focused on it, especially after the anti-injunction act argument was given the cold shoulder.
I'm sure the dissent will tell us where Robert's went wrong.
Rehnquist did in fact vote with the majority to write narrow opinions. But for your theory to be correct, the vote would have to be 6-3. Roberts could have joined the dissenters, and still kept the opinion for himself. I don't see how validating ACA gets him any more freedom for long-term legal-principal development.
So just how does the voting go? Do they go around the table and each take turns telling their vote? Can they change their vote when they've seen what others have done?
From what I gather, the ruling did tighten the reigns on the commerce clause. Maybe that's a big plus in Robert's mind?
The most senior justice in both the majority and the dissent gets to assign the opinion. With 4 votes on each side of the issue, he was the swing vote, and got to change the outcome. He could have assigned the opinion to himself, regardless of which way he voted being the most senior judge.
So, he could have written a narrow commerce clause opinion while still rejecting the tax power argument. In fact, there's a very good argument that the commerce clause stuff is dicta (meaning not binding) because it is not necessary to the result. You don't need to reject the commerce clause argument to accept the tax power argument. to the contrary, if he had joined the dissent, he would have had to reject the commerce clause argument in order to strike down the law. So if he wanted he opinion on the commerce clause to be binding, he should have joined the dissent. (assuming he doesn't actually believe the tax-power stuff.)
http://dailycaller.com/2012/06/29/yglesias-1-lizza-frum-0/
It's hard to say $3.2 million is a bad day for Romney.
2. Roberts felt he was acting to preserve the reputation of the court.
3. Roberts is a conspirator.
4. Roberts cracked under pressure and as a result gave an unorthodox opinion.
Which is most likely? Are there other options?
2 and 4 are basically the same thing, and at this point seem the most likely to me.
1 is definitely a possibility.
As I mentioned in the post, I'm not particularly one of the fire-breathing repeal Obamacare types, I'm really more disappointed in the process than the result. Unfortunately all the fans of the ACA didn't seem to mind the process, as long as it was the result they wanted.
I was similarly bugged with Obama's new immigration policy. I actually sympathize a bit with the Dream Act (largely because I've had a number of students who were illegals and am emotionally invested in their success), but having the president just choose what laws to enforce seems like a pretty dangerous slope. Did you hear any Dems upset about the move on principle? Of course not.