US Branches

Why, Roberts, WHY?!? An Explanation for Roberts’ Obamacare Vote

Good explanation:

It’s important to note that Roberts, knowing that Kennedy was going to go over to the dark side, switched his vote for tactical purposes.  

This is because the Chief Justice has prerogative to write the majority opinion, so he writes it.  This is commonly done so that the more liberal members cannot use the majority opinion to write in new powers, etc.

Essentially Roberts did this to reign in any possible abuses, so he basically, from what I can see, just said this was a tax, but that the government didn’t have authority to force you to do things, [only] to tax.  He limited the government’s reach, whereas if Kennedy or *GASP* Kagan had written the majority opinion, they might have given the government almost plenipotentiary powers.

Ok. That calms me down a bit.

Addendum: By “dark side”, the writer meant our side, as a joke. A lot of people are confusing this. Apologies.

Addendum: Roberts would have written the majority opinion if he had voted against the law too. So, the explanation only works if he thought it would have passed without his vote, or if it was going to go down by more than one vote.  

From my pirate-ninja homie.


And another good point:



…the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

Again, very important… this takes away some of the blackmailing power of the government…

Essentially, a majority of the Court has accepted the Administration’s backup argument that, as Roberts put it, “the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to IRS.” Actually, this was the Administration’s second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax. The third argument won.


Lyle: The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.
Amy Howe: By the way, the opinions collectively are a monster. The Chief’s opinion is 59 pages, Justice Ginsburg’s opinion is 61 pages, the four dissenters are 65 pages, followed by a short two-pager from Justice Thomas.
If liberals were smart, or if they read this blog, they’d know to use this as evidence that Roberts was collaborating with the Romney campaign:
From the beginning of the Chief’s opinion: “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”
Here is the money quote on the fifth vote to hold that the mandate is not justified under the Commerce Clause (recognizing that doesn’t matter because there were five votes under the Tax Power): “The power to regulate commerce presupposes the existence of commercial activity to be regulated.” That will not affect a lot of statutes going forward.
So the ruling actually prevented such abuse and expansion of government power to be done in the future under the commerce clause. If congress wants to try this again, they have to vote for it as a tax.



Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act. By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t. That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed. The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.

That the four would oppose it in any form means Kennedy would have likely written a majority opinion not leaning to the left? Now I’m back to being confusedsorry readers. 
  • I hope you’re right! If so it was a good move – this decision will also galvanize Conservative for the election – could that have been on his mind?

  • Piggy1959

    Sorry…this is crap! Kennedy joined the dissent! Roberts could have declared the whole thing unconstitutional. Would have been 5-4 against.

  • bingo32

    It is good move b/c now overturn on Presentment Clause per Art 1, sec 7. They signed the Senate bill which was NOT House bill.

  • GuestyMcGuesterson

    Your analysis makes no sense . . . Kennedy did not go over to the dark side, he was in the dissent. Roberts could have just as easily used his perrogative as CJ to author a 5-4 opinion striking down the law.

  •  you didnt read close enough. try again.

  • Matthew Gaffey

    Only to page 15 of .pdf (end of necessary and proper). Commerce clause ruling, although a no brainer, is excellent.

    Most noteworthy – is very much written in plain english rather than legaleze.

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  • Matthew Gaffey

    Finished reading the decision.  Ugh. Roberts somewhat defanged the governments regulatory bazoka (the commerce clause) but then turned around and gave them a regulatory howitzer (ability to tax you for not behaving the way they want you to).

    The liberal dissent is an abomination – Ginsburg, Kagan, et al are not even pretending to be judges anymore – they barely even attempt to disguise their policy paper as a legal opinion.  We’re one more liberal justice away (assuming Roberts hasn’t already assumed the role)  from having a fully functional House of Lords instead of a supreme court.

     How long will the tax code be 10 years from now – 200,000 pages? 300,000 pages?  It will be the preferred vehicle for regulation going forward. Adding things to the tax code is a breeze – they’ve done it a million times.  Amendments will be as impenetrable and opaque as the ACA.

    IMO, any victory in terms of the commerce clause and limits on the use of federal funds for coercing the states will be small consolation when the Gov’t sets up IRS branches in every town and neighborhood in the counrty.

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  • “The bottom line is this: I will be voting against John Roberts’ nomination. I do so with considerable reticence. I hope that I am wrong. I hope that this reticence on my part proves unjustified and that Judge Roberts will show himself to not only be an outstanding legal thinker but also someone who upholds the Court’s historic role as a check on the majoritarian impulses of the executive branch and the legislative branch.”

    Senator Barack Obama

  • It was said today on (I think CBS) that Roberts was with the dissent to strike down the law, then switched and it was Kennedy who tried to bring him back (but failed to do so).