A lawyer reader sez there’s a big silver lining for conservatives…

…to the Obamacare decision. I’m not a lawyer, so you smart lawyerly types can argue about it. He writes:

The Constitution lays the basic groundwork for Congressional power over the nation in Article I. In Art. I, § 8, the Taxing and Spending clause empowers Congress to “lay and collect Taxes, Duties, Imposts and Excise, to pay the Debts and provide for the common Defence and general Welfare of the United States.” A few paragraphs down in Art. I § 8, the Commerce clause allows Congress to “regulate commerce . . . among the several states.” So Congress can (1) Tax, (2) Spend for “general Welfare” and (3) regulate interstate commerce.

In the 1942 case of Wickard v. Filburn, a farmer named Roscoe Filburn was mad about a ridiculous New Deal regulation meant as a price support for wheat that told him how much wheat he could grow on his own farm and feed his own pigs. The Court found that the Commerce Clause let the feds tell Roscoe how to run his farm. Sure, they reasoned, Roscoe’s farm didn’t cross state lines or anything. But *in the aggregate*, if every farmer did what Roscoe was doing, the national, interstate wheat market would be affected.

Wickard v. Filburn is the basis on which the entire post-New Deal edifice of federal Big Gummint was built. No matter what you did, some liberal lawyer would argue that your behavior had a “nexus” with interstate commerce. (In Gonzalez v. Raich, e.g., a California woman growing medical marijuana on her windowsill was told she was acting in interstate drug commerce, so the feds could come after her despite California’s medical marijuana law. Clarence Thomas, a principled state’ rights strict constructionist, voted against that. But Antonin Scalia, a good pro-lifer but otherwise just a G.O.P. hack, was so eager to stick it to some California hippie that he sided with Big Gummint in Gonzalez v. Raich to do so.)

So that’s the background. The last piece is something called the “doctrine of Constitutional avoidance.” It means that given the choice between reading a vague statute as unconstitutional, or reading it as constitutional, a court should defer to Congress and pick the latter reading.

What Roberts did today was apply that doctrine. He said that Obamacare was (1) vaguely written (2) unconstitutional as an exercise of the Commerce power (3) constitutional if the payment to the IRS for not having insurance is read as a tax, since the Taxing power is broader than the Commerce power.

This is a big deal. It means that the next time somebody tries to use the Commerce Clause to expand Big Gummint (as liberals have been from 1942 until now, with only two major lost cases along the way I won’t bore you with–Lopez and Morrison), it will be a lot harder. In the war against Big Gummint, that may be more important than winning today’s battle.

As for Chief Justice Marshall, the war he was in was to establish the right of the Supreme Court (full of Federalist appointees from the Washington and Adams administrations) to judicial review of laws to see if they violated the Constitution. Jeffersonian Democrats argued that the Court was only there as an appeals court in regular cases, not to review laws. Marshall handed Jefferson a victory in a small-time case about leftover D.C. municipal patronage jobs from the Adams Admin. that Secy. of State Madison wanted to give to Democrats instead of leaving for Adams’ last minute Federalist appointees, but used the case to establish the right of the Court to review actions like Madison’s. In other words, Jefferson got the bad news that the Court could review his Admin.’s actions for constitutionality, but the good news that in this penny-ante case, Madison’s actions were constitutional. Here, Obamacare is constitutional as a tax, but the argument of liberals like Justice Ginsburg that the government CAN use the commerce clause to make you buy broccoli, not grow wheat, not grow weed, or whatever, just got a lot more difficult.

Lizzie Scalia is rounding up various reactions from the Leftosphere and what is striking is how many of them are basically saying “Obama won the battle, but Roberts won the war”. And they don’t mean that in a happy way.

  • Kirt Higdon

    Conservatives boasted so loud and long that they would win this one that now they have to persuade themselves that they have won, all evidence to the contrary. Bottom line – Obama won – big. Forget all the judicial “reasoning”. The justices make their decisions and their clerks write the “reasons”. And forget about the HHS mandate being overturned by the courts. Much more likely will be more such anti-life, anti-liberty and anti-Catholic mandates.

    • ivan_the_mad

      “all evidence to the contrary”. Did you read the opinion, or did you just want the internets to know that you’re so mad? People aren’t trying to “persuade themselves that they have won”. It’s a normal human response. The decision came down was not the one desired, so there was an emotional knee-jerk response. After some calm prevailed, people were able to read the opinion and said “hey, it’s not as bleak as we thought!” For instance, here’s VA AG Cuccinelli, who IIRC was the first AG to file suit over the ACA: http://www2.timesdispatch.com/news/virginia-politics/2012/jun/29/tdmain09-cuccinelli-cites-loss-on-policy-win-on-co-ar-2021559/

  • Michael

    Now congress can order us, as individuals, families, and churches, to do anything they damn well please and fine (uh tax) us if we disobey. Don’t pay the fine (uh tax) and they will take your property and send you off to prison. This decision represents the single largest expansion of government power in history. They don’t need the commerce clause anymore.

    • Molly

      People keep saying this. And it’s extremely frustrating. Roberts addressed this. Read the ruling. I’m not happy it wasn’t overturned, but I in no way was under the impression that it being overturned was going to fix things. And I was very well aware that it could have made things worse. Roberts has put forth an option that we didn’t even know we had. Chill out. Not being pissed off and rabidly dramatic doesn’t make you a traitor. Being pissed off and rabidly dramatic doesn’t change any realities right now. Nor will in motivate voters with fear. Motivate them with the tools that Roberts — wittingly or unwittingly (though, being a Supreme Court cheif justice, I’m going to give him the benefit of the doubt and say wittingly) — just handed out to us. They will be far more effective. And far more healthy for the country.

    • Eugene

      Michael, you’re exactly right. The commerce clause justification was getting too brazen — people watched the oral arguments and saw just how ridiculous Obama’s lawyers sounded — so the court had to come up with a new way to expand the government’s power.

  • http://raeblog.blogspot.com Rae Stabosz

    I am convinced, after much reading, that Roberts did a Solomon, not a Keyser Soze. He found a constitutional basis for the law that advances no political agenda but throws it back to the electorate to clean house and throw the bums out, should we be willing and able to do so.

    The Democrats, from the DNC tweeter to the tweets and Facebook responses I saw, were vindictive and hateful in victory. If the ruling had gone the other way , they would have been positively foaming at the mouth. The conservative response has been, among my friends in social media and nationally, much more measured and reasoned.

    A single court decision cannot resolve the problem that we are ruled by the God-King and an increasingly puerile legislative body. But conservatives – and I am one – we’re looking for that to happen. Roberts’ action was both prudent and just, I think. It’s a bad law that was justified by an intolerable expansion of the powers of the commerce clause. That expansion has been stopped. A tax has been called a tax. The ball is now in the court of the taxpayers and the electorate. The Supreme Court has not been used to bail us out if our own civic stupidity. And the demons of Democratic and liberal rage have not been unleashed.

    • Molly

      Thank you. The Solomon analogy is a GREAT way of putting it.

  • Irenist

    More of a studying-for-the-bar-exam-hoping-to-be-a-lawyer-real-soon reader, but sheesh, this just made my day. Glad you liked it, Mr. Shea.

  • Mark Shea

    I like explanations of things that we non-lawyers can grasp. I think it remains to be seen how this will play out and if the state will use the ruling to tax us into eating our broccoli, but it’s helpful to at least have some idea of what’s going on. So thanks, Irenist!

  • kmk

    ” No matter what you did, some liberal lawyer would argue that your behavior had a “nexus” with interstate commerce.”

    Except for irresponsible sexual behavior, leaving a trail of broken marriages and lives and children along the way! (Not to mention enlarging our national “carbon footprint” with all of the separate houses of divorced families.) Interesting–that growing wheat on your own farm is not good for the country, but no-fault divorce is just swell. God help us!

  • Sam Schmitt

    I get the claim that Roberts really checked federal power by pushing back on the commerce clause. Fine.

    At the same time he opened the floodgates on the tax power of Congress – and that by a laughably lame argument. So the damage done by the faulty interpretation of the commerce clause since Wickard v. Filburn will simply be replaced by the damage done by the tax power under this ruling going forward. Same damage, different pretext.

    There’s no spinning our way out of the fact that this decision is a disaster.

    • Kirt Higdon

      You’ve nailed it, Sam. I recall when Roe v. Wade first came down there were some pro-life people who initially insisted it wasn’t all that bad. Within a few weeks they realized it was even worse than it looked. Within a few months, they realized it was much, much worse than they first thought. Those who say that the Roberts decision has thrown the ball back in the court of the electorate are correct. And that’s the bad news. Who can tell me when the electorate ever voted in politicians committed to overturning a government freebee? Anybody? Bueller?

  • Tim Jones

    “At the same time he opened the floodgates on the tax power of Congress …”

    Ummm… I think those floodgates were blasted off their hinges quite a while ago.

    • Ted Seeber

      In fact, given the Roberts Reasoning, those floodgates got blasted off their hinges in 1793, when the Constitution replaced the Acts of Confederation (under which taxation and money was limited to the States and the Federal government had to subsist on what money they could get from the states- but that form of our government went bankrupt).

  • Molly

    I think people are also forgetting that “taxing power” is one thing that still motivates the electorate. They won’t vote against a pro-choice candidate but you bet your booty they’ll still vote against higher taxes. Taxes will ALWAYS be the one thing that are regulated by the electorate. Lots of candidates lie and say they won’t raise taxes and get elected, but when was the last time you heard of one that got elected by having to say, “Hey support my huge middle and lower class tax hikes!” He can’t even lie about it now. If the people play their cards right, they can corner him.

    • Ted Seeber

      I remember a favorite SF short story that proposed that if we took budget power away from Congress and used networked computers to give it to the taxpayers (with a TurboTax-like UltraLong form that if you choose to use it, means you have to allocate every penny of your taxes to the federal programs of your choice) would be more powerful than the vote.

      The short story ended with a Vietnam-era old man getting nostalgic about his brother who was killed in the war on April 15, and asking the computer to add the category of “World Peace”- and it was picked up as a meme by the entire country and accomplished by Christmas.

  • http://backoftheworld.com Ryan M.

    Lawyerly type here (recent law school grad, passed the bar, haven’t practiced yet). I’m in agreement with much of what’s been written. I’ll add that one of the truly brilliant things that Roberts did was to overcome the jurisdictional obstacles in this case. As anyone who’s suffered through a semester of Federal Courts class can tell you, jurisdiction–the question of whether a Court has the authority to decide a case– is a big flippin’ deal in our legal system. Cases get thrown out all the time because a court “doesn’t have jurisdiction.”

    And here’s the rub: according to a law known as the Anti-Injunction Act, no Court can hear a case about a tax that no one has been forced to pay yet. But no one has been forced to pay an Obamacare penalty yet, so…

    What Roberts essentially did was say that, by calling the payment a “penalty” rather than a “tax”, congress must not have wanted the ACA to be subject to the jurisdictional limits of the Anti-Injunction Act. And that’s fine, they can do that–because the Anti-Injunction Act is just a statute, not the Constitution. However, that has no bearing, in Roberts’ mind, on the question of whether Congress has the power to impose the ACA penalty, because Congress can’t, of course, change the Constitution with a mere statute.

    So Roberts’ court has the authority to decide the case, and they can decide it on any of the relevant constitutional grounds…including Tax & Spend.

    The reasoning really is brilliant, and I really do think this is much better for conservatives than it seemed at first blush yesterday morning…

    • Irenist

      Yeah, the Anti-Injunction Act aspect was pretty fascinating. BTW: Congrats on passing the bar! I graduated in May and I’m taking the July bar. Please keep me in your prayers as I wrestle with the fun that is BarBri prep courses.

      • http://backoftheworld.com Ryan M.

        You’ve got it. Good luck! What state are you taking?

        • Irenist

          Texas. Thanks for the prayers, Ryan. Love your blog, btw.


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