Category Archives: Courts

Justice Thomas’ Dissent

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Justice Clarence Thomas’ dissent from the Supreme Court’s just published ruling on the Patient Protection and Affordable Care Act, quoted below, is short, to the point, and worth studying.  His dissent also can be found at the end of the full ruling (together with the four Justices’ joint dissent), which itself can be read here.  Justice Thomas’ cites are omitted below.

JUSTICE THOMAS, dissenting.
I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause.  The joint dissent and THE CHIEF JUSTICE cor­rectly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.  Under those precedents, Congress may regulate “economic activity [that] substantially affects interstate commerce.”  I adhere to my view that “the very notion of a  ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.”  As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.”  The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects inter­state commerce is a case in point.

It was this “substantial effects” test that permitted the ruling in Jones & Laughlin and which was dramatically expanded in Wickard.  Until these odious rulings are reversed, the dangerous lack of limits still extant in the Commerce Clause, the majority opinion in this case notwithstanding, remain a clear and present danger to our individual liberties.

Tax vs Prohibition

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Paul Mirengoff had some remarks on some of the implications of the Supreme Court’s ruling on the Patient Protection and Affordable Care Act.  Chief Justice Roberts’ argument:

…the highly consequential debate between Chief Justice Roberts and Justice Kennedy over whether it is “fairly possible” to view the payment that must be made under Obamacare for not purchasing health insurance as a tax.  Roberts’ view that it reasonably can be considered a tax rests, at least on part, on the claim that there is no prohibition against not buying health insurance.  An individual can refuse to buy insurance, just as a basketball player can commit that last foul, though he or she will pay a price for the refusal.

Justice Kennedy’s argument:

Kennedy’s view is that the price one must pay for not purchasing insurance entails a prohibition.  He quotes the great jurist Chancellor Kent as follows: “If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute.”

Mirengoff concludes

Kennedy’s view of this matter is more persuasive than the Chief Justice’s.  But remember, under rules of constitutional adjudication, Roberts’ view need not be the most persuasive one.  As Kennedy concedes, it must only be “fairly possible.”

And here is the danger of, as Mirengoff puts it, the squishiness of “fairly possible.”  Note that in this context, “fairly” has nothing to do with “fair,” as in a “fair coin.”  “Fairly” here means sort of reasonable, a measure of plausibility.  And that “sort of plausible” argument was allowed by Roberts to trump actual logic—and the facts of the matter that Congress had, in developing this law, explicitly removed tax language and replaced it in toto with penalty language.  Roberts abused even the squishiness of the fairly possible “doctrine” to find a tax in the law where none existed so that he could preserve a claim of constitutionality of the PPACA.

Indeed, Roberts moved himself over the line into judicial activism.  The judicially conservative thing is to strike a law that is unconstitutional, not to actively manufacture reasons for finding it constitutional.  That is judge-made law.

The Supreme Court and the Constitution

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Here’s another implication of Chief Justice John Roberts’ ruling on the Patient Protection and Affordable Care Act, courtesy of The Wall Street Journal.

According to Chief Justice Roberts, the penalty is merely a tax on not owning health insurance, no different from “buying gasoline or earning income,” and it thus complies with the Constitution. This a large loophole. The result is that Washington has unlimited power to impose new purchase mandates and the courts will find them constitutional if Congress calls them taxes, or even if it calls them something else and judges call them taxes.

Except that not buying a thing or a service is radically different from buying that thing or service.  This isn’t merely a matter of opposites: opposites are related to each other.  There is no relation between buying or not buying—the thing/service being bought is known; the thing/service not being bought cannot be known, and so the bought/not bought functions can have no relation to each other whatsoever.

Chief Justice Roberts writes that construing the Commerce Clause as the Obama Administration argued “would open a new and potentially vast domain to congressional authority…. 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.” [emphasis in the original]

But then

Supreme Court precedents going back to the 1920s and 1930s define penalties and taxes as mutually exclusive and critically different.

With this stroke, Roberts has cancelled the effect of his understanding on the limit of the Commerce Clause’s ability to compel commerce; he has simply transferred the ability to compel commerce to the Taxing Clause.  Which also had no prior compulsion power.

Whether the Federal government may compel our behavior via Commerce or via Taxing, our government now can compel our behavior.

This is judicial activism at its worst.

President Obama’s Obamacare Tax Increase on the Middle Class

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Straight from the horse’s mouth.  Chief Justice John Robert’s Majority Opinion includes this [emphasis added]:

The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause.  That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.  In this case, however, it is reasonable to con­strue what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance.  Such legislation is within Con­gress’s power to tax.

The whole opinion, and the two dissents, can be read here.

Progressives and Freedom

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From The Wall Street Journal:  Progressives are now actively lying about the National Federation of Independent Business because that organization is the formal lead plaintiff in the Obamacare lawsuit, which ruling the Supreme Court is scheduled to announce today.

Here’s what’s going on.

The chairmen of the House Progressive Caucus, Democrats Raul Grijalva [D, AZ] and Keith Ellison [D, MN], [wrote] a letter accusing the NFIB of acting against “the best interest of small business owners” and “the popular opinion of the American small business community.”

Because, of course, all those 300,000 small business NFIB members adore Obamacare.  These guys say so.

Then the WSJ notes:

…among the four million small businesses eligible for new tax credits if they provide health insurance for their workers, a mere 170,300 have signed up.

Hmm….

And they ask:

…if the NFIB is as unrepresentative as liberals claim, then why have its ranks grown by 5% since it became a plaintiff in the ObamaCare suit?

And they add:

Some 65% [of NFIB members, in an NFIB poll of its membership] believe ObamaCare will do the opposite [i.e., will increase health care costs] and 77% believe it will result in a higher tax burden, which are among the reasons the group joined the suit. One in five small businesses believes it’ll be forced to alter the benefits it offers employees.

Yeah.  That’s broad-based support for Obamacare, all right.  It’s their story, and they’re sticking to it.