Thread: Obamacare: Conservatives' Consolation Prize

Well, if it raises awareness that's good for conservatives, but repealing the whole thing is what needs to be done now.

Conservatives’ consolation prize

By George F. Will, Thursday, June 28, 2:56 PM

Conservatives won a substantial victory Thursday. The physics of American politics — actions provoking reactions — continues to move the crucial debate, about the nature of the American regime, toward conservatism. Chief Justice John G. Roberts Jr. has served this cause.
The health-care legislation’s expansion of the federal government’s purview has improved our civic health by rekindling interest in what this expansion threatens — the Framers’ design for limited government. Conservatives distraught about the survival of the individual mandate are missing the considerable consolation prize they won when the Supreme Court rejected a constitutional rationale for the mandate — Congress’s rationale — that was pregnant with rampant statism.
The case challenged the court to fashion a judicially administrable principle that limits Congress’s power to act on the mere pretense of regulating interstate commerce. At least Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance:
“The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. . . . Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”
If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”
The court held that the mandate is constitutional only because Congress could have identified its enforcement penalty as a tax. The court thereby guaranteed that the argument ignited by the mandate will continue as the principal fault line in our polity.
The mandate’s opponents favor a federal government as James Madison fashioned it, one limited by the constitutional enumeration of its powers. The mandate’s supporters favor government as Woodrow Wilson construed it, with limits as elastic as liberalism’s agenda, and powers acquiring derivative constitutionality by being necessary to, or efficient for, implementing government’s ambitions.
By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”
When Rep. Nancy Pelosi (D-Calif.), asked where the Constitution authorized the mandate, exclaimed, “Are you serious? Are you serious?,” she was utterly ingenuous. People steeped in Congress’s culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle. Now, Thursday’s episode in the continuing debate about the mandate will reverberate to conservatism’s advantage.
By sharpening many Americans’ constitutional consciousness, the debate has resuscitated the salutary practice of asking what was, until the mid-1960s, the threshold question regarding legislation. It concerned what James Q. Wilson called the “legitimacy barrier”: Is it proper for the federal government to do this? Conservatives can rekindle the public’s interest in this barrier by building upon the victory Roberts gave them in positioning the court for stricter scrutiny of congressional actions under the Commerce Clause.
Any democracy, even one with a written and revered constitution, ultimately rests on public opinion, which is shiftable sand. Conservatives understand the patience requisite for the politics of democracy — the politics of persuasion. Elections matter most; only they can end Obamacare. But in Roberts’s decision, conservatives can see that the court has been persuaded to think more as they do about the constitutional language that has most enabled the promiscuous expansion of government.
georgewill@washpost.com

By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”

This may not hold up. See my post elsewhere on this forum regarding the topic Roberts Made the Right Long Term Solution for full context. Below are my comments to that topic, and I believe they apply to this article as well:

t necessarily so.

1. If the government can tax you for NOT BUYING something, is that not a method of forcing you or at least coercing you to buy something you do not want? I say the government is forcing you to buy something if you face a penalty or tax for not doing so. Using Roberts logic, the government cannot force me to pay income tax, property tax, excise tax, etc. But, they can fine me for failure to comply. They can seize my property. They can imprison me.If that is not forcing me, what is?

2. A retired lawyer phoned Rush Limbaugh's show today and his opinion was that 100 per cent of Roberts' remarks concerning the use of the Commerce Clause was being misinterpreted. This retired lawyer said the remarks were not central to the decision, i.e., the decision could have been made without addressing the Commerce Clause. Therefore the remarks fell into the category of "dicta" (plural of dictum). Therefore in future cases Roberts' remarks cannot be used as a precedence in dealing with limits on the Commerce Clause because it was superfluous to the decision, had no bearing on it, and constituted an opinion rather than a judicial decision.

Below is a Wikipedia defintion of dicta/dictum:

Dictum

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In United States legal terminology, a dictum (plural dicta) is a statement of opinion or belief considered authoritative though not binding, because of the authority of the person making it.^[1]
There are multiple subtypes of dicta, although due to their overlapping nature, legal practitioners in the U.S. colloquially use dicta to refer to any statement by a court that extends beyond the issue before the court. Dicta in this sense are not binding under the principle of stare decisis, but tend to have a strong persuasive effect, either by being in an authoritative decision, stated by an authoritative judge, or both. These subtypes include:

• dictum proprium: A personal or individual dictum that is given by the judge who delivers an opinion but that is not necessarily concurred in by the whole court and is not essential to the disposition.
• gratis dictum: an assertion that a person makes without being obligated to do so, or also a court's discussion of points or questions not raised by the record or its suggestion of rules not applicable in the case at bar.
• judicial dictum: an opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision.
• obiter dictum in Latin means "something said in passing" and is a comment made while delivering a judicial opinion, but it is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).
• simplex dictum: an unproved or dogmatic statement.

In English law, a dictum is any statement made as part of a judgment of a court. Thus the term includes dicta merely in passing (referred to as obiter dicta) that are not a necessary part of the reason for the court's decision (referred to as the ratio decidendi). English lawyers do not, as a rule, categorise dicta more finely than into those that are obiter and those that are not.