In a 5-4 ruling, the U.S. Supreme Court upheld the constitutionality of the Affordable Care Act. But as the political, legal, and policy world scrutinizes the details of today's ruling, it's worth pausing to appreciate just how far the four dissenters -- who filed their dissent jointly -- were willing to go.
The conventional wisdom, which was neither conventional nor wise, was that the individual mandate was in deep trouble, but it was unrealistic to think the justices would be so radical as to kill every letter of every word of every page of the law. Such a breathtaking move would simply be unnecessarily radical.
And yet, as of this morning, four justices -- Alito, Kennedy, Scalia, and Thomas -- insisted on doing exactly that. The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law -- the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.
To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress' taxation power. I can't read Chief Justice John Roberts' mind, but it wouldn't surprise me if the extremism of the four dissenters effectively forced him to break ranks -- had Kennedy been willing to strike down the mandate while leaving the rest of the law intact, this may well have been a 5-4 ruling the other way.
Roberts' motivations notwithstanding, it's important that Americans understand that there are now four justices on the Supreme Court who effectively want to overturn the 20th century. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.
There are some who argue that this year's presidential election isn't especially important. I hope those who believe this consider what today's court minority was prepared to do, and what they will do with just one more vote.
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I cant believe that now the Supreme court thumps the federalist papers.
The federalist papers are worthless. BACK when our justices where actually real credible human beings, the Federalist papers were referred NOT in the terms of Legal precedence but simply as a reference to get a feel of what the founding fathers intended.
The right wing nut-candy that started with that Idiot Newt Gingrich started refereeing to the papers as if they were sent down my the hand of god.
Our constitution was written in pretty plain English for a reason.
TALK ABOUT LIES?? https://www.facebook.com/RightChange
Affordable Health Care is constitutional. I truly believe this is the start for a great good for our country. If we are a country who actually believes in a right to life than health care for all our citizens should be our ultimate goal. To those who believe we are going down a road of socialism I would say to you that when it comes to saving the lives of people, I don't mind it at all. Capitalism works wonders for most commodities like yachts, mansions, Cadillacs and the like. When it comes to someone's life however, you should never hear phrases like "buyers beware", or "the bottom line is you can't afford it". This kind of thinking is just not worthy of a great country like ours. I certainly don't believe that government should be doing for us. Nonetheless I do believe, for those who are trying so very hard, that government can be there to lend a helping hand up. Do I believe this plan is perfect? Of course I don't. As with most government endeavors, I'm sure there will be the usual blunders along the way. I am hopeful that they will be few and far between. For my more Republican friends (those of the party of Lincoln, T. Roosevelt, and Eisenhower), I know you have your reservations and all I can ask is that you try now to work with this law for the good of the country
Lawrence O'Donnell and Laurence Tribe, Harvard Law professor (who taught both Obama and Justice Roberts), were exactly right on Lawrence's show last night--apparently Roberts didn't want to be aligned with the forces of evil arch-conservative radicalism like the 4 that voted against the ACA. Now if we could just go back in time so he could change his mind on Citizens United...
Considering that there was no severability clause in the law I don't find it at all extreme that the dissenters would invalidate the entire law because they found the individual mandate unconstitutional. That's just sound legal reasoning.
I'm more worried about the fact that those who voted to uphold the law rejected the Commerce & Necessary & Proper clause arguments. We won today, but that doesn't bode well for future challenges as we try to move forward.
Think of it as part of the price for getting Roberts on board. As Chief Justice, he got to write the decision and so he crafted it narrowly -- he didn't want to endorse the Commerce argument, so he found a way to uphold the law without doing so.
What happens in the future? Don't borrow trouble. If Roberts were willing to deep-six a century of Commerce Clause jurisprudence with all of the consequential political fallout, he would have done it today. He is, more than anything else, a shrewd politician and has life tenure to let him think strategically.
exactly what century of commerce clause precedent are you talking about? There has never been a case which present the issues in this case. That said, tax analysis seems sound, but obviously subject to unintended consequences. That is, the party in power can now tax to regulate behavior. So for example what about a fat tax, if you are overweight, then you have to pay $1000 per pound that you are over weight. This decision certainly permits that kind of tax.
Aaron Steadman, that's a joke, right? You're not really that stupid, greedy, selfish and illiterate, are you?
I've worked since I was 14, too. I have been laid of twice since 2003 and have spent 15 months trying to get a job, any job -- McDonald's, local furniture store, across the country, whatever. Despite incredible credentials and an excellent portfolio, I can't even get an interview in my field, presumably because of my age.
So I have health issues , no income, two kids in college (I'm selling my house for what I paid for it in 2000 to help cover that), and zero health insurance. And if I get cancer -- your advice is ... what? Die? How have we "handled" it in the past? Seriously waiting for your advice ... thanks in advance.
Oh, wait, I guess being unfortunate makes me "pussy" and not and American. Probably you don't share your golden wisdom with people like me.
While I agree with most of the characterizations of the dissenters, on the issue of how much of the act should have been voided (had they prevailed), in fairness, the legislation did not have a severablility clause and the administration itself argued that the entire act stood or fell.
I am now convinced that the light at the end of the tunnel is not another train!!
I'm more pleased with this decision than the alternative. Thank goodness we didn't go down that road because the tree of liberty seemed awfully thirsty..
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Kasimir Malevich, White on White (1918). . . .Robert Rauschenberg, Erased De Kooning (1953). . . . John Cage, 4'33" (1952). . . . .
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Ruth is getting up there...I hope that if Ginsburg plans to retire, she does it while Obama is still in office. We need to keep as many sane people on the bench as possible.
let us put to bed the fallacy that Kennedy is anything other than right wing hack
The debate (haha) is going on in the HoR over the resignation of Holder. When the AHCA came out, the repubs called the 2700 page massive and it would take forever to read it. Holder gave them over 7600 documents and said he would provide more. I wonder if they read each one of the over 7600 (unmassive) documents they were provided by AG Holder? This is so sad and friggin makes me sick to my friggin stomach!
Keith, we all know the Republican House and NRA are going after Holder for purely political reasons. Check out the article that Fortune magazine (a very conservative publication) published about Fast and Furious. Even they are calling this investigation baseless. Issa announced when he was made head of the committee that he planned on having hundreds of meetings investigating the Obama administration. Had nothing to base that claim on. Just made the statement. Absolutely partisan and power-hungry.
It is important to realize just how big this victory is. This is not a decision that the Republicans can change. Even if they win the presidency, the House, and the Senate, all we need are 40 votes in the Senate to filibuster any attempt to eliminate or significantly change the health care reform. That said, I expect Obama to win reelection, keep the majority in the Senate, and try for a majority in the House.
Oh . . . but Mittens said he would repeal and replace the ACA on his first day in office today in response to the Supreme Court announcement. Was he lying again? You mean he can't do that without a bill to "repeal and replace" is sent to him?? The man is unbelievable!
TALK ABOUT LIES?? https://www.facebook.com/RightChange
http://www.youtube.com/watch?v=Q8erePM8V5U
I GUESS OBUMMER FORGOT ABOUT HIS OBAMA CARE TAX!!!!
Is there any doubt that if the GOP gains control of the Senate, a distinct possibility, they will eliminate the filibuster rule? The Senate GOP core is far more brazen now then they were under Senator Frist during t.he first 6 years of "W". On top of this, if Romney wins and the GOP retains control of the House (hard to conceive the former happening without the latter), America as we have known it will be in jeopardy. The activist, Federalist Society Judges, especially the Supremes will have expanded majorities and will return the US to the days before the New Deal. Privatization of Social Security, Voucher system replaces Medicare, "Don't ask Don't Tell" reinstated, Netanyahu given carte blanche in Israel to, for all practical purposes, annex the West Bank, more stringent Voter ID Laws which will be federalized, Defense of Marriage Act returns with full enforcement, invasions of Iran, maybe even Cuba, trade war with China.
So, Justice Roberts gets a call from the Koch Brothers and Rove telling him to vote to keep Obamacare explaining to him that this will help Romney. He will just tell the flock of sheep that he will get rid of the law because of the mandate. Maddate... bad... Romney.... good. hahaha
New idea for party drinking game: In a speech of some 660 words, Romney said, "Obamacare," SEVENTEEN TIMES! That's about one of every 39 words of this bromidic and yawn inducing waste of valuable air time. If you are a supporter of the republican nominee, aren't you just a bit insulted that your candidate's speech writers obviously think that you are weak in the head, and have to be read to as if you were in kindergarten?
Vocabulary Lessons for progressives: Gov. Romney's speeches: Romnesthesia! New word to describe the health care plan we will have if he has his way: ROMNEYSCARE! (cue the psycho string sound effect).
TALK ABOUT LIES?? https://www.facebook.com/RightChange OBAMA SAYS NOT A TAX
http://www.youtube.com/watch?v=bOaLLdpVzAs
The cornerstone of the conservative movement over the past 40 years has been based on abortion rights. This is the main issue that has radicalized the rebub party. They have used it to manipulate a segment of the population to vote against their own self interests under the disguise of patriotism and family values. The dissenting judges are chomping at the bit to overthrow Roe vs. Wade.
Obama cares about US.
I told my husband that John Roberts was the one to watch before this vote took place. In my gut I feel that although he is a conservative he is also set on upholding the Constituiton and has more common sense then the far right four will ever have.
December 1862 - the speaker, Abe Lincoln : "The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty and we must rise with the occasion. As our case is new, so we must think anew and act anew."
Today, almost 150 years on neither the Dems nor the GOP have 'won' - the only winners are the American People! Let us rise with the occasion, think anew and act anew.
However - for the sake of true justice, let us investigate the collusion that is Clarence Thomas. The people deserve this to be a public issue.
It should be clear to each and every person that one's health care has never been a matter decided by "you and your doctor" but rather, by your insurance company. Without the Affordable Care Act you have to rely on the mercy of your insurance company whether or not they will insure you and what they will cover. The republicans live in a parallel universe if they pretend this isn't the case. I'd like to smack Romney every time he says this, because he is clearly lying. But what about the millions of idiots who fall for this line. It doesn't take a genius to know this is a bogus argument and if they don't want Obamacare they are acting against their best interests. So why are they doing it? Why parrot the stupid statement made by the republicans. THIS to me is one of the true mysteries of life in this country.
Steve,
This is the best piece I've read today on this subject!! Rachel definitely needs to expand on this tonight. The right wing is now tweeting to impeach Roberts. Crazy!!
I triple-dog dare them to do it while President Obama's in office!
;-)
http://www.youtube.com/watch?v=bOaLLdpVzAs