The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

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Thursday, June 28, 2012

Chief Robert's gambit
Tom Smith

Rarely do I call something a must read, but Sean Trende's latest is one. I think it's pretty darn persuasive. The wins for limited government under something like our Constitution in the ACA case strike me as bigger than the losses. Add to this (I'm not sure yet; I have to actually read the thing) Roberts may be correct on the merits.  The Obomination may be legal as a tax and precedent may require reading it that way.

If I were Kennedy, I think I would feel like (as Justice O'Connor might put it) the bronc had the bit in its teeth and someone had to go out and lasoo it, with respect to the powers of the federal government, I mean. I expect more libertarian noises from him in the future.Trende is right that a lot of important decisions are coming up and the Court now seems freer to act without crippling accusations of political bias.

The spending clause part of the decision is enormously important, isn't it? I don't have my arms around it either, but it would seem to put very substantive limits on the power of federal government over the states, compared to where things were yesterday. And by 7-2 as well. This also means Texas can opt out of Obamacare and if that happens, doesn't it just fall apart as a budgetary matter? If Obama is reelected, that could lead to a very peculiar standoff.

And it does tee the whole mess up for a national election.  Let the people decide, etc., etc. If we all vote for this, we probably deserve what we get. Well, maybe not readers of this blog, but most people.

Maybe Trende is being too clever by half.  Maybe Roberts is being too clever by half. So I will just say I would not be surprized if lovers of liberty look back on this decision as a turning point, of that rare good kind.  In any event, intelligent folk should stop moaning and wait to see how this shakes out.

All that said, I would still like to know if Roberts really was pressured somehow.

http://rightcoast.typepad.com/rightcoast/2012/06/chief-roberts-gambit-tom-smith.html

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Comments

Yes, Sean's thoughts were my own this afternoon. The decision is a loss on the one hand but there are real victories in it that no one could have hoped for before today. The Medicaid part seems huge and the Court seems to have preserved its political capital as it were for the cases that will come in the ensuing years.

But like you, I'd like to know if Roberts was pressured. Moreover, it seems like what we got was a last minute product - that's kind of scary.

Posted by: Steve | Jun 28, 2012 7:35:54 PM

http://www.youtube.com/watch?v=9n29c-q3_8Q

Posted by: JMS | Jun 28, 2012 8:23:08 PM

On TaxProf, someone brought up the Direct Taxation clause of the Constitution. This is no income tax, so if it is a tax, it would seem to violate it. Could a new case be brought on those grounds?

Posted by: Eric Rasmusen | Jun 28, 2012 8:42:05 PM

This smells like a Breyer snow job. He's great at picking off the weakest member of the herd usually Kennedy but regardless he's good at identifying what's likely to bring someone over and giving them something not terribly valuable to make them think it's a decent trade.

Posted by: john knox | Jun 28, 2012 9:29:03 PM

Eric,

I'm pretty sure Roberts addressed that in his judgment.
As for the why's Roberts was either

A making a reasoned legal judgment
or
B trying to preserve the credibility of the institution he intends to steer for the next 30 years

Posted by: molly | Jun 29, 2012 3:13:52 PM