June 28th, 2012

Federalism’s weird victory

Randy Barnett, who has been instrumental in developing the legal arguments against Obamacare, asks a very good question:

Who would have thought that we could win while losing?

The “we” he refers to are those who’ve been arguing—like he has—that the federal government’s attempt to impose an individual mandate is unconstitutional. It must be very hard for Barnett to understand that although he won that battle, and the Court ruled 5-4 that it is unconstitutional, the case challenging Obamacare was lost on other grounds.

I don’t think anyone anticipated that, or at least I haven’t found anyone who did.

And this is a good question, from commenter “gcotharn”:

Obama is taxing economic inactivity.

Isn’t this the first time, in all of American history, in which that has occurred?

10 Responses to “Federalism’s weird victory”

  1. Barkeater Says:

    There is a serious consequence in the details of this finding. People can’t be required to buy the insurance, but if they do not, then they pay the tax. In that case the money goes to the government, not to the insurance companies. The mandate was intended to compel premiums being paid to the insurers so the costs of covering sick people could be balanced out by a larger pool of people paying premiums. Now young, healthy people can simply elect to pay the tax and the balancing of the insurance risk is potentially gone. So the whole mechanism is out of whack.

  2. holmes Says:

    We should tax people who don’t purchase a copy of the Constitution.

  3. J.L. Says:


    This writer describes a similar interpretation of the ruling.

  4. Artfldgr Says:

    and so far no one has stated the obvious

    the court didn’t want to pick either answer

    so it picked what helped the court and the people on it, NOT what was best for the US…

    by doing it this way, few will attack them and Obama threat to get them is now avoided.

    ie. did we forget potus threatened scotus?

    if they think he may change from potus, to dotus, then they are just protecting their future. if not, then they are ok too.

  5. Artfldgr Says:

    just after i wrote it… i found someone else metioning it. :)

    Did Roberts Give in to Obama’s Bullying?

    it would appear that the Chief Justice may have succumbed to the bullying meted out by President Barack Obama, who attacked the Court in the aftermath of oral arguments in March, when Obamacare seemed headed for certain defeat.

  6. T Says:

    Artfldgr wrote:

    ” . . . in March, when Obamacare seemed headed for certain defeat.”

    Just because it APPEARED to be on the road to defeat doesn’t mean it ever was. Remember, in 2008 Obama APPEARED to be a unifying post-racial not blue–not red candidate who would unify the country. How’d THAT work out?

    It remains to be seem how this plays out. Now that the mandate is a tax and the house has scheduled a July 11th repeal vote of this tax, when it goes to the Senate only 51 votes are needed to overturn Obamacare. If that happens, Obama is presented with a bill to repeal his signature achievement or veto the bill and thus allow the largest tax increase on the middle class in history. Another broken promise and this with an election looming.

    Not an enviable position to be in to say the least.

    We live in fascinating times!

  7. stan Says:


    1. I think history may show that Roberts was too clever by half. That’s not a pony in there. There’s a potential Pandora’s box in that mess.

    2. If he was worried about hurting the credibility of the Court, he ended up wrecking it. And his credibility is toast. He just exposed himself as the ultimate political operator and neither side will place any trust in him.

    3. I think someone should use Douglas’ emanations and penumbras argument for the proposition that the Constitution protects the citizens from a federal govt that lies shamelessly about the legislation that is being passed. If the people don’t have a right to an honest description of legislation, then none of their other rights have much meaning

    4. Just lost a friend today. I’m blaming the liberal cocoon.

  8. GoneWithTheWind Says:

    I predicted that the Supremes would not declare Obama care unconstitutional but rather come out with a ruling that made this abominable legislation far worse. In my lifetime this is what the Supremes have done. They either split so closely that no one really knows what is or is not constitutional or worse they cut the baby in half and throw out some part of a unconstitutional law while leaving the most egregious part intact. But this time the Supremes made everything worse.

    If congress is able to do the best possible thing, that is to over turn all of Obamacare, the government will in the meantime have spent 100′s of billions to implement it (and pay off political cronies) that we will never get back. This while we are going bankrupt and unable to fund real needs. It will also have created at least four years of total confusion for employers, insurers and care givers causing some of them to go out of business and many of them to lose money and have to reduce services to American citizens. And lastly it will create a mish-mash of regulations, expired or retracted regulations, confused regulators and situations where patients die or who’s illness becomes worse simply because of the confusion this law and the repeal created.

    If congress, the president and the Supremes were to have gotten together three years ago over cocktails and pondered how they could totally destroy the worlds best healthcare system it is doubtful that even the most devious mind could have come up with this legal morass and regulatory disaster.

    The Supremes could have prevented most of this with a clean ruling that the entire bill was unconstitutional. It also would have set a clear precident limiting the federal power to control every aspect of our lives. But it appears that instead they preferred obfuscation, judicial legislation and constitutional destruction.

  9. T Says:

    GTWT wrote:

    “If congress is able to . . .over turn all of Obamacare, the government will in the meantime have spent 100′s of billions to implement it . . . that we will never get back. ”

    That is certainly true. There is always a price to be paid. OTH, it took about 100 years of progressive nudging for our country to reach this point. No one should expect the solution to be a quick-fix or inexpensive. Over at powerlineblog.com John Hinderaker writes that:

    “This is a democracy, and if a majority of our fellow-citizens are content to live as wards of the state, subsisting from cradle to grave as dependents, we are, frankly, screwed. There is only one place where freedom and a proper constitutional balance can be restored: the ballot box.”

    I submit that in an awesome maneuver (I employ that overused adjective literally here), Chief Justice Roberts has deftly put before us the tools we need to solve this immediate problem (unanimous agreement on the limited nature of the commerce clause and a 51 vote Senate to overturn the ACA) and to rein in an ever-intrusive govt (first step, fire Obama and his administration in November).

    To paraphrase Franklin, John Roberts has given us some important tools to use in reclaiming The Republic if we’re bold enough to use them.

  10. T Says:

    sorry should be “GWTW wrote: . . .”

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.


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