Free Markets, Free People

Setting up a narrative–if ObamaCare goes down it will be “judicial activism”

It must be getting uncomfortable legally for supporters of ObamaCare.   They’re calling out the big guns.  Today, we hear from Lawrence Tribe who attempts the usual arguments, but then spends a lot of time praising the justices of the Supreme Court (well, except Thomas, of course).  There’s a reason for that as we’ll see.

Tribe first attempts to argue that the commerce clause is indeed applicable:

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Of course that’s not the argument.  Few would argue, given precedent, that Congress does indeed have the power to regulate the insurance industry.  They may find it to be a stretch and most likely not how the Founders envisioned the regulatory powers of Congress being used, but few can deny that’s the legal state of affairs today.  But:

Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

Note the emphasis – “the system” won’t work unless “all individuals”  participate “to the extent of their economic ability”.   So it’s not about the sick, it’s about system viability.  A “system” which doesn’t yet exist takes precedence, because supporters want it, over the individual right to say “uh, no thanks”.

It also ignores those who presently pay their way.   Yes, folks, there are some out there.  And no, Tribe isn’t about to let them off the hook because they’re on the end of the economic spectrum where they’ll be paying full price for insurance and then some.

Back to the point – his argument is for the “system.”  The “system”, imposed by Congress, must abrogate the individual’s right to make an economic choice based on his or her desires, needs or priorities because the system’s very existence depends on universal participation.  That’s the tail wagging the dog. Our Constitutional system exists to protect individual rights and choices – not take them away.  And this mandate is an abrogation of the “right to choose” (which the left only seems to want you to have when it comes to abortion) what economic activity an individual will participate in is dead.

In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.

In 1982, Social Security had been around for decades.  ObamaCare hasn’t taken the first payment by mandate.   And the fact that Social Security had existed for decades and millions had been forced to pay into it (but had yet to recoup their payments) may have influenced the Court to find keeping Social Security.  That’s not the case for ObamaCare.  Tribe’s is an empty argument.  There’s another difference.  Personally, I think that Social Security is as unconstitutional as the ObamaCare mandate – but it is a fee taken in the form of taxation (even if it does end up being a mandated program).  And that brings us to the core of the matter concerning ObamaCare:

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.

It possibly could – but then the law would most likely have to be rewritten to reflect that, and there’s a slim to none chance of that happening with a Republican House.  In fact, this is the path the last Congress should have taken vs. an individual mandate.  I don’t care how hard lawyers like Tribe argue that it is Constitutional, it doesn’t pass the Constitutional smell test.   Congress is given the power to regulate the activity of interstate business actors.  Opting not to buy something does not make you a part of that, no matter how badly supporters want that to be true.   A decision not to buy is an individual choice that government has no business – and until this point – no right or power to compel one to change.

The danger here, of course, is given the precedent of Medicare and Social Security, I fear a tax would pass Constitutional muster, given the expansion of powers SCOTUS has granted Congress since FDR.

Tribe outlines his arguments as if they’re open and shut.  They’re not – in fact, to a layman they appear pretty darn weak (well other than the tax, which hasn’t a chance, at least at the moment, of passing).  The indication that they weak comes from the rest of the article where he appeals to the integrity and consistency of the justices and his appeal to do the right thing and find this all Constitutional.  Tribe’s entire argument, and that of supporters, is individuals, at some point in their lives, must use the health care system.  Therefore, they must make a “commercial decision” about how to pay for it.   It is that decision that Tribe says constitutes the basis for Congress to assume the power to dictate how they’ll pay.  It is nonsense on a stick (and it doesn’t take a very bright person to see the future implications of such a finding).

In fact, Allahpundit of Hot Air sees this op/ed for what it really is.  It certainly isn’t about the pedestrian legal arguments, as they’re the same ones many on the left have been making since ObamaCare was challenged and found unconstitutional.  It is in fact an op/ed to set up a narrative if the court should not find in favor of the ObamaCare law.   Tribe spends the entire 2nd half of his op/ed praising the justices and calling on them to do their constitutional duty and dispel the rumor that they’re “political” animals.  This, says Allahpundit, is why Tribe wrote the piece:

His goal here isn’t to persuade Times readers that he’s correct on the legal merits; his goal is to persuade Times readers that if the Supreme Court disagrees with him, it is, must, and can only be because they’re right-wing hacks with no regard for the Constitution or for precedent. It’s transparent narrative-building for liberal bien-peasants, a way of moving the Overton window so that any unfavorable ruling, notwithstanding the legal novelty of the mandate or the reasoning of the majority opinion, must be illegitimate. Which is to say, it’s a nakedly political argument dressed up as a plea to keep politics out of law.

Exactly … pretty transparent for a Harvard Law professor whose hubris is such that he sees himself smarter than just about anyone else.  Here he comes across as a political hack and water carrier for the administration.  It also tells me that the administration, even with their public pronouncements of faith that the challenges will fail, think they’re in trouble.

~McQ

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46 Responses to Setting up a narrative–if ObamaCare goes down it will be “judicial activism”

  • Tribe is a putz.
    The Collective are liars.  The Constitution is toilet paper to them, and has been since the days of Wilson.
    It is time…past time…to take the Republic back to the Constitution AS WRITTEN…NOT as tortured by fools in robes who swore to defend it while designing to rend it.

  • For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

    Great description of a Ponzi scheme there.  Only thing is, getting everyone on the hook doesn’t improve the longterm viability, it just delays and amplifies the inevitable shitstorm when things fall apart.

    • It is also a perfect re-rendering of the communist “From each according to…” formulation, just in health care terms.
      Note also that it is totalitarian per se.  Hello Mr. Mussolini

    • To amplify what ScottH said, this also leverages the resulting shitstorm on the nation as a whole. If McQ (or anyone else) has a presonal health care shitstorm that ruins their finances, that’s bad, but it is limited to an individual. This program applies it to all of us.

      And since it destroys any remaining price competition in the system, it drives us toward that result.

  • So, Tribe apparently wants to protect the healthcare “system”. 

    Perhaps I’m going out on a limb here, but I don’t think it was the intent of the Founding Fathers that government is established to protect “systems” and that individuals should yield their Liberty in order to serve “systems”.

    As I read the Declaration of Independence, the purpose of government is to protect individual Liberty.  When government no longer does that, it is the right of the people to abolish or change those forms of government so that individual Liberty once again becomes the focus. 

    I acknowledge Jefferson’s caveat that such changes shouldn’t be done for “light or transient” causes.

    —Tom Nally, New Orleans

    • I don’t think them telling me what I must buy is either light or transient.

    • And we today have tools that had not been defined and refined in Jefferson’s day.
      I think in particular of civil disobedience, which lowers the event horizon for rebellion considerably.

  • “…must participate to the extent of their economic ability.”

    In other words, ‘From each according to his ability…’.  

  • “must participate to the extent of their economic ability.”   Jeeze does that sound like a line out of Das Kapital or what?
     
    As to the idea that we’re stuck with New Deal philosophy forever, and that the Supreme Court must always continue to play along

    I give you “Dread Scott”.

    • But their ratchet only clicks in one direction.  “What’s mine is mine, what’s yours is negotiable”. 

      Or Collectivist dogma is stare decisis, and the words on the Constitution are plastic.

      • Or Collectivist dogma is stare decisis


        Precisely.  I appreciate the Justices are always cognizant of precedent when they craft their decisions, but sometimes they recognize the precedent should never have been established and they strike prior rulings down.
         
        The idea that they will NEVER do such a thing is vital to the ongoing collectivist fantasy that our Constitution has become since (at least) FDR.

  • Tribe was, not surprisingly, the main law professor who taught Obama and vouched for him during the 2008 campaign, describing Obama as “”the best student I ever had.”

    During that campaign I was struck by the remarkable silence of Obama’s classmates and professors except for Tribe. I don’t want to get conspiratorial but there was something quite weird about Obama’s academic career. That he wasn’t tapped for a top clerking position with the Supreme Court after being president of the Harvard Law Review and didn’t receive offers from elite law firms strongly suggests that there was something not right about Obama.

    But Tribe was the only top legal authority to stick up for Obama in 2008 and he’s doing so now.

    • Obama might never have applied for any clerkships or positions at big firms. He appears to have set goals for himself that included the Harvard Law creds but not the practice of law back in Chicago. Twenty years later, he’s president.

      And people on a power track like that often get handjobs from people like Tribe.

      The mystery that remains, however, is the relative silence of others. That makes me think, for some reason, of Obama’s potential Republican opponent for the Senate in Illinois in 2006, Jack Ryan, whose confidential divorce records were made public, forcing him out of the race. He was replaced by the perhaps noble, but decidedly hapless Alan Keyes.

      There is a formidable operation that has Obama’s back, which makes sense because there is absolutely no reason he should have been nominated for President by a major party. The MSM complicity is analagous to the silence of his classmates and other professors. MSM had no serious interest in his real background and flew right over any eruptions therefrom.

      I don’t know if Obama is actually a Manchurian Candidate, but I’m not sure what the difference would be if he was.

      • I prefer to think he’s just the beneficiary of a perfect storm of guilt.   Really the only group that needed to practice collusion was the Make Believe Media.  They had, even during the 2008 campaign, the ability to silence dissent on a national level.  The Race card was/is still a powerful weapon, and it may be that Obama’s peers, who were not enamored of him (the mind boggles) were afraid of being branded as nothing more than jealous racist critics.
         

        • I see outlines that suggest more design to it, but you are probably right, with the caveat that the Left always has a hysterical move waiting on a back burner.

          • Then again, I would once have scoffed at the idea that George Soros is a Bond level villain with regard to Western capitalist states.  All in all, I find the prospect far too real these days.
             
            There’s no reason to suppose his visible influence (these days) is not an actual manifestation of a more widespread but less visible undertaking.   The idea the “old soviets” just faded away is laughable, and the influence of Middle Eastern silent funding is getting to be pernicious; take the recent kerfluffle at VMI, or the Ground Zero Mosque as exposed examples of their reach.
             
            Manchurian candidate indeed.

      • I’ll check with a lawyer friend, but my impression is that a Harvard Law graduate/president of the Law Review receives many approaches for one position or another. The actual application is a formality.

        But even if Obama had had to apply, why wouldn’t he? It really doesn’t get any better in law than clerking for the Supreme Court. That’s a top plum position with incredible status for anything a lawyer might want to do later. It’s also not a grind like most newbie lawyer jobs are. Clerking would have been perfect for Obama.

        Instead of pursuing the dazzling opportunities his Harvard credentials afforded him, he wandered back to Chicago, allowed UChicago to recruit him for part-time work while he worked on his book, which he fumbled too.

        Obama’s immediate years after Harvard are curiously anticlimactic. Either he really was marching to the beat of a different drummer, or the word was out on the grapevine that he was damaged goods somehow.

        • I can’t imagine what would deter a big firm from recruiting him. Perhaps he really couldn’t write (there’s the “Ayers wrote Dreams from” theory) and didn’t want to get into a position where he would have to, at a law firm or a clerkship. If he doesn’t work out as an associate at a firm they just don’t offer him a partnership. When he went back to Chicago the “network” was right there for him. I don’t think that there was much drifting involved, other than that of a chosen front man who was allowed to pick his spots.

          Why opt for law firm politics when you can feed off of Chicago politics with a glide path to foundation money and political office.

          • Perhaps his writing ability (or lack thereof) is why, as President of the Harvard Law Review, he was the first ever in that position to fail to publish even one article?

        • FWIW: A good friend of mine who went to Columbia tells me that he recognizes Obama’s act as typical Columbia Leftist political song and dance. Says he knew a lot of people very similar to Obama. He was there about eight years after Obama graduated.

        • His comments, from “his” books, that he took a job in the “belly of the beast,” might lead one to think that he finally started to believe at that Lefty cr@p and “wanted to make a difference.”
          Yeah, he made a difference .. after he’s out of office I expect to see the end of affimative action by big business, except for resume outreach.  He has become the perfect culmination of the racial “Peter Principle” that the “dark side” of affirmative action embodies.

      • They did what they did to someone else before Ryan to some other opponent to clear the way for Obama.  He’s been fast tracked by not necessary unseen forces but very quiet forces who don’t seek the spotlight and the media doesn’t seek to shine it on them either. 

        As far as a comparison to a Manchurian Candidate, I think its a difference of depth versus breath.  The obsurdity of the situation is more on the number of people going along (vast majority of the MSM for one) than what they are doing. 

    • Guys, remember that Obama was offered…and accepted…advances for two books he never wrote.
      I do not know about being recruited (literally), since I was nobody’s idea of a fair-haired boy.
      Baby lawyers brought into big firms are expected to submit to being worked like rental mules.  I wonder if Obama’s organic laziness was a factor, or if he knew his secret (i.e., that his chops were actually weak) might be exposed?
      The University of Chicago was breaking its collective legs to get him to come on as faculty…on ANY terms.  Accounts indicate that he was too lazy or disinterested to accept.

      • Enjoying the discussion of Obama. It is interesting to consider this stuff, without going into the Birther thing, etc.

        There is plenty of evidence that Obama simply is lacking, and that his every move is not part of an evil plot. For example, the blowup on the policemen and the professor thing was stupid on Obama’s part, pure and simple. I’m not saying there is no evil plotting, just that some of it obviously isn’t.

        But I like your discussion on this. Obama has not been forthcoming about his past, and the MSM hasn’t dug into it (except some Fox personalities, if you want to consider them part of the MSM).

        It also seems to me that the Administration likes to fan flames. They are well aware of the Birther stuff, yet Michelle visits Kenya and calls it “her husband’s country”. Intentional? I think so. Wacky stuff like the Birther movement distracts from more credible facts like his association with Ayers and Wright. And it isn’t just that the Birther stuff is probably wrong: it is really irrelevent, because he’s already POTUS and that isn’t going to change if someone proves he really was born in Kenya (or wherever).

        • Obama has not been forthcoming about his past, and the MSM hasn’t dug into it (except some Fox personalities, if you want to consider them part of the MSM).

          As Stanley Kurtz points out, the OPPOSITE is true respecting both Obama and the press.  They collaborated (which never requires an overt conspiracy) to actively HIDE Obama’s antecedents and positions, ideology, etc.
          As has been noted, that is anti-democratic.  If you are for something, and seek the vote of the people, you have an obligation to make yourself clear and allow the choice to one informed by the truth.  Reagan comes to mind.

          • I hope I live long enough to read the books which will come out after Obama is finally properly investigated .

          • I may hold out for the trial transcript…

          • You are correct, but the left doesn’t really care about democracy. It is really all about power.

            Obama didn’t violate any laws by not disclosing his agenda in a clear manner. He even hinted at hiding his agenda, when he noted he was a blank slate people ascribed their own ideas to, and when he noted that people liked him because he wasn’t an “angry” young black man.

  • And the fact that Social Security had existed for decades and millions had been forced to pay into it (but had yet to recoup their payments) may have influenced the Court to find keeping Social Security. 

    Social Security passed Supreme Court muster when, in the 40s, the court argued that the preamble provided the power for Congress to create such a thing. I believe that they used this argument (stupid on its face, and going against actual statements given by the Founding Fathers to the contrary) because the Court had yet to discover the magic of the commerce clause.

    Of course, the whole commerce clause argument hinges on a missing “effects” that does not appear in the written text, although leftist judges seem to see it . . . 

    After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.

    That might have something to do with the final law having origionated in te Senate. If it was a tax law it should origionate in the House.

    • The magic maybe to try to turn the argument while in the appeals process.   Virginia and some Senators (including a few Democrats) would like to have this jump to the SCOTUS.  If the administration believes it is holding a bad hand (which I think they have), it may want to reshape the argument during appeals, while means no expidited trip to the SCOTUS.

  • As to whether the mandate can be reconfigured into a tax, Article I, Section 8 is quite specific as to what taxes can be raised by Congress. Since there is not an obvious fit without some elastic interpretation, perhaps that problem was the genesis of ‘mandate’.

  • Frankly, I am always in amazement that the Commerce Clause got this far in its elasticity of use. The words of the clause seem pretty clear to me and it’s far more restrictive if you just take the words at their plain meaning.

    Let’s recap the clause, as it is actually stated: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The first point to be made is that there is no mention, whatsoever, of citizens, residents, or persons in the clause. Read it again, if you must. It does not say “To regulate Commerce with [the residents of] foreign Nations, and among [the residents of] the several States, and with the [residents of Indian Tribal Land].”

    Anyone who has sat in a courtroom observing the action can understand what this distinction entails. Let’s say that John Doe is brought in on criminal charges of a certain sort in my great state of Oregon. The case is given the name “State of Oregon v. John Doe.” We all know who John Doe is; he is the scuzzy guy with the frazzled public defender. But who is “State of Oregon?” He is not the smartly dressed prosecutor sitting abreast of John Doe in opposition. Rather, he is the representative of the State of Oregon, a sovereign corporate entity claiming the exclusive use of force over a certain area subject to bylaws known as the “Constitution of Oregon.” The State of Oregon is not a citizen, resident, or person; it is a legal construct with residents as “shareholders” and other residents who represent the corporate entity in its dealings with persons in its jurisdiction. The same definition applies to the federal government of the United States and the national governments of all sovereign nations. So why go through the trouble of defining what a nation and a state are?

    Again, read the clause: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Now, for the breakdown. First, when the clause says “regulate Commerce with foreign Nations,” it means exactly that: any exchange of property with a foreign Nation is subject to regulation by Congress. And as outlined above, “foreign Nation” only can mean the government of that foreign nation, not the individual residents of that foreign nation. So, if I choose to sell pencils to the government of France, that sale is subject to regulation by Congress. If I choose to sell pencils to Pierre, a small businessman residing in France, I am not subject to regulation by Congress. How could I be? Pierre is definitely not a “foreign Nation,” so engaging in commerce with him cannot be subject to congressional regulation. The same thinking should also apply to the “To regulate Commerce … with the Indian Tribes.” The tribal governments are akin to foreign Nations in terms of entity status, meaning that commerce with a tribal government is subject to regulation by Congress, but commerce with an individual Native American is not.

    Next, we will look at the phrase “To regulate Commerce … among the several States.” This one is a bit tricky if the sophistry is advanced, but is easily refuted. An argument for an elastic reading of the clause would say that “among the several States” means “in the several States.” This would seem to support the notion that Congress can regulate any commerce happening within the territory of any state, regardless of whether it crosses state lines. The more straightforward phrasing of the clause under this understanding would read “To regulate Commerce … occurring in the territory of the several States.” This would completely conform to the current jurisprudence surrounding this clause. One wonders if this is what the justices in the Wickard v. Filburn decision imagined the clause saying (or wishing it was written this way.)

    But the clause is not written in the straightforward way that those preferring a more elastic reading would prefer, but in clear language that says something completely different. Since the words “in” or “territory” or “area” do not show up in the text, then the clause refers not to commerce happening in the space of the states, it refers to commerce happening between the States themselves. Remember, “the several States” refers to the individual, separate States themselves, i.e. the Commonwealth of Massachusetts, the State of California, etc., so the best way to think of the phrase “To regulate Commerce … among the several States” would be to replace States with any another noun. Let’s use this example: “At the swap meet, there was much commerce among the attendees.” The exchange of property in this example happened only between those who were attendees of the swap meet. There was no commerce between non-attendees and attendees, or between non-attendees. This illustrates the point under the Commerce Clause, the States (attendees) are subject to regulation by Congress only if they engage in commerce with other States (attendees). If States engage in commerce with residents (non-attendees) of their States or other States, then congressional regulation is not allowed for these transactions. Also, if people residing in the United States engage in commerce with other residents (regardless of whether they are from different states), then congressional regulation of these transactions is not allowed as it is not a State to State transaction.

    To recap, the language of the Commerce Clause is clear. There are very few transactions types that are subject to regulation by Congress. I have listed allowed and disallowed transactions below. This is the true, legal meaning of the Commerce Clause, washed of original intent and judicial overreach.

    Regulation allowed:
    – Any transaction between a legal entity (person, corporation, or government) residing in the United States and the government of a foreign Nation (i.e. selling pencils to the government of France)
    – Any transaction between a legal entity (person, corporation, or government) residing in the United States and the government of a tribal nation (i.e. selling paper to the Confederated Tribes of Grand Ronde)
    – Any transaction between one state and another state (i.e. the State of California selling surplus furniture to Nevada)

    Regulation not allowed:
    – Any transaction between a legal entity (person, corporation, or government) residing in the United States and a non-governmental legal entity (person or corporation) of a foreign Nation (i.e. selling pencils to a citizen of France)
    – Any transaction between a legal entity (person, corporation, or government) residing in the United States and a non-governmental legal entity (person or corporation) of a tribal nation (i.e. selling paper to a member of the Confederated Tribes of Grand Ronde)
    – Any transaction between a non-governmental legal entity (person or corporation) and a State government, regardless of the residency of the non-governmental legal entity and the particular State (i.e. a Delaware corporation selling new furniture to the State of New York and the State of New York selling old surplus furniture to a New York resident and a New Hampshire resident)
    – Any transaction between a non-governmental legal entity (person or corporation) and another non-governmental legal entity (person or corporation), regardless of the residency of either non-governmental legal entity (i.e. a Georgia corporation selling widgets to a Nevada corporation, who then sells its product to regular Joe)

  • And this mandate is an abrogation of the “right to choose” (which the left only seems to want you to have when it comes to abortion) what economic activity an individual will participate in is dead.

    I don’t think they even believe in a “right to choose” when it comes to abortion. I’ve encountered too many lefties (including an anthropolgy prof back in the 80s, female at that) who approved China’s forced abortion program.

    Granted, the young college girls who vote Democrat really do want a right to choose, but I don’t think that is what the real leftists want.

    • I still think that there are some interesting arguments to be made, vs ObamaCare, with the SCOTUS decisions on abortion.  The whole argument in Roe was that the government had no compelling interest in a private decision and treatment.  Once ObamaCare is running, especially if anything like “single payer” ever rears it’ ugly head, much of that argument disappears.
      If ObamaCare lives on, I expect Roe to fall.

      • That’s actually an excellent point, and one I haven’t considered. It’s the result of the left starting from the desired answer and working backwards to rationalize their argument with the Constitution these 60 odd years.

        The thing is, they are not hung up on being consistent or following rule of law. You see exampls of this with Bill (“the meaning of is” and “I didn’t inhale”) Clinton, and similar logic with Obama.

        The left doesn’t care about being consistent. Or rule of law. Or the Constitution. Or even the hallowed right to choose (which only applies to choosing to have an abortion). They just care about winning and expanding power.
        The only risk the left runs is that their logic can be picked up by conservative or centrist judges. But the Sotomayors of the world will resort to any argument no matter how inane, and Tribe will write an op ed defending it (even if “she’s not nearly as smart asshe thinks”).

  • It possibly could – but then the law would most likely have to be rewritten to reflect that, and there’s a slim to none chance of that happening with a Republican House.

     
    If history is any indication, that doesn’t necessarily have to be true.  The judiciary only has to recognize the behavior as a tax, not necessarily the language.
    I don’t have any case law to site, or any professional guidance, only what I’ve come to experience what has become of judicial interpretation.  Also, I read this.
    If I’m wrong, I humbly apologize.
     
    Cheers.

    • Humility.  Excellent.
      The bottom line here is that none of the reviewing courts have accepted this argument…though it has been floated if memory serves.
      That does not prevent the Supremes from applying it in a novel way.  I just doubt they would.  I think the Commerce Clause is where this will live or die in the courts.
      On the other hand, denoting it a TAX WILL have very clear political ramifications.
      At the end of the day, citizen defiance is going to be the thing that kills this monstrosity, if nothing else does.

      • Humility.  Excellent.
         
        Not to worry, I’m still the arrogant bastard you’ve come to know and love.
         
        The bottom line here is that none of the reviewing courts have accepted this argument…though it has been floated if memory serves.
         
        The Amicus Curiae submitted by the law professors lay out many case law scenarios that would apply to this argument.

        The Court also has made clear that the fact that a tax has a regulatory purpose or
        effect does not remove a measure from the scope of the tax power. “Every tax is in some
        measure regulatory. * * * But a tax is not any less a tax because it has a regulatory
        effect.” Sonzinsky, 300 U.S. at 513. The Court made the point even more forcefully in
        its subsequent decision in Sanchez, insisting that “[i]t is beyond serious question that a
        tax does not cease to be valid merely because it regulates, discourages, or even definitely
        deters the activities taxed.” 340 U.S. at 44; see also Kahriger, 345 U.S. at 27 (noting
        numerous instances in which the Court upheld taxes notwithstanding a manifest “intent to
        curtail and hinder, as well as tax”); Minor v. United States, 396 U.S. 87, 98 n.13 (1969)
        (“A statute does not cease to be a valid tax measure because it deters the activity taxed,
        because the revenue obtained is negligible, or because the activity is otherwise illegal.”);
        United States v. One Ford Coupe Auto., 272 U.S. 321, 328 (1926) (“A tax on intoxicating
        liquor does not cease to be such because the sovereign has declared that none shall be
        manufactured, and because the main purpose in retaining the tax is to make lawbreaking
        less profitable.”).
         

        Read the rest of the brief.  To my untrained eye, it is very convincing.  I do realize, however, that a rebuttal might read just as convincing.
        Neveretheless, an interesting take on the matter.

        • Yeah.  You get all kinds of stuff from an amicus brief.
          The point was that the opinions of the judges (and I have NOT read them all) gave no truck to the tax argument.
          And, ultimately, it will not matter.  ObamaCare is a dead letter.  The specific cause of its death is immaterial to me.

  • So the left will do what the right does when the court rules against them — scream judicial activism.   Turn about is fair play.

    • Turn about is fair play.

      That is one line you should never throw around lest it come back to bite you

    • If you don’t know the difference between following the constitution and making shit up out of whole cloth, then there’s no point to discussion or law anymore, is there?  Is your side really equipped for the alternative?

    • Words have meaning, ditzbrain.

      • And in his case, as with Mr. H. Dumpty -
        I quote
        “‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
        ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
        ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’”

    • Erp, the left starts from a desired answer and works backwards. That’s judicial activisim.

      Applying the Constitution to shoot down unconstitutional garbage like Obamacare isn’t judicial activism.