Another Comment

I’m no lawyer – but here’s Instapundit’s take: “The Supreme Court has refused to save us from ourselves. The solution now must be political.” I guess it’s time we didn’t expect those dead white guys to do all the lifting – they must have been getting tired. Still, it was comforting to think they had our backs. And I’d like precedent to limit – well, strong.

22 thoughts on “Another Comment”

  1. No taxation without representation. OCare is a tax, and Congress does not represent the people. Fire ’em.

  2. You’re now going to see how the productive class riots. Far less dramatic, far more reaching.

  3. My take is that the SCOTUS just handed the Republican Party the 2012 election, if the GOP is smart enough to take it. The case can now be credibly made that the system of checks and balances in the Constitution is no longer working, and that government power will expand infinitely unless a new breed of leadership is elected. A lot of Democrats in Congress who got their arms twisted, or bargained special favors for their states in exchange for their votes on Obamacare, were hoping that the SCOTUS would save them from themselves.

    Congress can now regulate any aspect of life by assessing a penalty for failure to act as Congress decrees, and calling the penalty a tax. Washington manipulated the Commerce Clause as a wedge to regulate every aspect of public life, and it will now use the taxing authortity to regulate every aspect of private life. BMI tables say you weigh too much? Pay a penalty, sucker. People who were always able to ignore the creeping federal power into the public sphere, because it didn’t impact them directly, will not be able to ignore this new power since it *will* impact them directly. And they aren’t going to like it.

    I see a constitutional convention in our near future. And it isn’t going to be pretty.

  4. @ Percy Dovetonsils – Who is John Galt?

    I know others didn’t like it when I mentioned this some time ago at CBz, but I am the child of people who moved to another country because opportunity didn’t exist and the US was exciting, wonderful, and where the intellectual “action” was at….

    I am already seeing docs moving to the UK (!), Canada, Australia, New Zealand, India, it’s a trickle and the reverse to the US is greater — except at the “higher end” of the scale, if you see what I mean. Was ever thus or is the twenty-first century going to turn nations into federated states. Er, you know what I mean.

    Don’t know. Rambling and I may be way off.

    – Madhu

  5. I mean, I had pushback in comments that certain people would leave the US for greener economic pastures. There was a huge coments thread about it some years ago? Maybe not here, don’t remember exactly.

    – Madhu

  6. Mrs Davis, I must be out of the loop because I have seen the reference to Marbury in a couple of other places today and I don’t get it. Does this have something to do with Marbury v. Madison?

  7. Cousin Dave, the reference to Marbury is because Roberts joined the Leftists specifically to limit the SCOTUS role in responding to legislation in the form of a large walk back. Notice that the opinion seems to be written in response to the Congressional power to raise taxes. Apparently, he avoids the issue of the Commerce Clause. The message is: if you want protection from bad laws you have to find it in electing legislators with integrity and holding their feet to the fire. You can no longer count on SCOTUS to save you from yourself.

  8. Wikipedia does a good job of laying out the background.

    In essence Marshall, a Federalist, decided the issue before the court in favor of his political enemy, Jefferson. But he did so in a way that accrued tremendous power to the Supreme Court, the power to find laws unconstitutional. So while Jefferson may have won the battle, he lost the war and the power of the Federalists remaining on the court was greatly expanded.

    Today’s decision finds that the imposition of a mandate would be unconstitutional under the commerce clause because Congress does not have the power to regulate inactivity. Thus the position of the dissenters becomes law. But it also finds that the law can stand because Congress does have the power to tax. (This takes the pressure off the court as the bad guys who fix Congress’ mistakes. Remember Bush signing the campaign finance law?) But as a tax, the law can be repealed with a simple majority vote in the Senate, the same way it was passed. This makes the matter a huge issue in the 2012 elections, motivates the Republican’s base and decharges the Democrat base. If the people really don’t want this bill, they can elect Republicans in November. But the restriction of the right to regulate inactivity will remain as law. The interesting thing will be to see if the Republicans try to repeal before or after the election. They could put a lot of Democrat Senators up for re-election on the hot seat by forcing a vote soon. The portion of the decision dealing with Medicaid also clipped the federal government’s power to force the states to spend and may have significant impact in areas far afield from health care.

    Note this take already.

    Keep in mind that Scalia is 76, Kennedy 75, Ginsburg 79 and Breyer 73. If Romney wins in November, he could have a much different court to work with as well as a different Congress.

    Roberts is 57. He’ll be CJ for a long time. He’s playing a long game. There’s plenty of foundation in this opinion for future decisions that further erode the expansive commerce clause we’ve been living with for the last 70 years. America won’t be re-built in a day.

  9. I should have said the ACA can be repealed by a simple majority in the Senate without a filibuster, the same way it was passed.

  10. Mrs. Davis – That was thoughtful – and I hope right. That always seemed the virtue of those old dead white guys, they really had a far horizon. And of the kind of revolution that knew that Rome wasn’t built in a day and neither was much else.

  11. Mrs Davis, I don’t get… oh wait, are you saying that that would make it a “budget reconciliation” bill that cannot be filibustered, per the rules that Obamacare was passed under?

    As far as Roberts’ game: I sort of get that, but it looks to me that at least for the short term, the situation as the average Joe perceives it has gotten substantially worse. Not only does Congress still have all the power that it had under the existing interpretation of the Commerce Clause (all this decision does is deny it a new power), but the decision gives Congress a new broad power to regulate private individual activity by using its taxing power. Roberts, from what I’ve read over at Althouse, made much of the fact that a rational actor can choose to pay the tax because it’s less than the cost of the insurance. But by that same token, Congress could easily raise the tax substantially. I posit that there is no practical difference between Congress saying “do X or you get arrested” and Congress saying “do X or you owe a $500,000 tax, and you’ll get arrested when you can’t pay it”. And this new power seemingly can extend to any decision an individual makes.

  12. This is nothing new. Congress has always had a taxing power. And it was Marshall who said in McCollough v Maryland that “the power to tax is the power to destroy” after being fed the line by Danial Webster. That is why the founders prohibited direct taxes by the Federal government. It was only when we stupidly approved the XVI amendment that the government was able to put its hand directly in your wallet. Don’t blame Roberts for that. But the American people still hate taxes. That is why the Democrats went out of their way to make this anything but a tax when they put the legislation together. Now Obama will have to run as a tax increaser on the middle class.

    What was new was a radical leftist President and veto-proof congress. Elections have consequences as people are learning.

    Note also that the RNC raised $1,000,000 in the three hours following the decision. And the St. Louis TEA Party has a rally scheduled for tonight. Last summer may have belonged to OWS, but this one will be owned by the “revived TEA Party”.

    This law will not stand.

  13. By the time this law is repealed or substantially modified, most of the health care system that provides care for 90% of the citizens will have been destroyed. The bureaucrats, and that includes hospital administrators and group administrators, are rapidly implementing the new rules. The result is the loss of autonomy and patient focus of doctors. Many young doctors are taking salaried positions in big vertically integrated plans. They were the few that appeared with Obama a couple of years ago at his photo op. Not all those people in white coats were doctors but the few that were and were identifiable, I looked up. They were all on salary at hospital owned groups.

    Now, the direction of all care will be by “guidelines.” When the first guidelines came out from the government in 1978, most doctors were very suspicious. Everywhere the paperwork said “quality of care” we interpreted it to say “cost.” There are two kinds of guidelines. Those derived from clinical research, especially randomized trials, and those that come from committees, usually called “consensus guidelines.” The latter are the kind that created the obesity epidemic by stipulating low fat diets and encouraged high carb intake.

    Now, private individuals are correcting the errors of the “consensus.” Dr Atkins wrote of the high protein and low carb diet in 1972 and was vilified for 30 years. When I wrote my history of medicine in 2003, I looked up Pub-Med and could find no literature on this although a few diet books, like “The South Beach Diet,” which is the Atkins diet slightly modified, have been popular. You wouldn’t know it from the medical industry until just now.

    This is the sort of response Atkins got:

    In his book Dr Atkins’ New Diet Revolution, Atkins made the controversial argument that the low-carbohydrate diet produces a metabolic advantage because “burning fat takes more calories so you expend more calories”.[2] He cited one study where he estimated this advantage to be 950 calories (4.0 MJ) per day. A review study published in Lancet[3] concluded that there was no such metabolic advantage and dieters were simply eating fewer calories because of boredom. Professor Astrup stated, “The monotony and simplicity of the diet could inhibit appetite and food intake”.

    Our health care rules will come from the people who brought us global warming. And they will have the law behind them.

  14. Does this resemble the decline of the Calilfornia education system as it followed “consensus” whole word teaching, etc.?

  15. I sent my kids to private schools after I was divorced from my first wife who was a big public school enthusiast. She has since changed her mind. When my middle daughter (now 31) was in 8th grade, her private school hired a head master from Connecticut to take over. Some parents enquired and learned that he had been fired in Connecticut for adopting “outcomes based education” as the curriculum there. There was a parents’ meeting and the board member who chose him was asked to attend. She told the parent group that, “If you don’t like it, you can take your child out of the school.”

    The following fall, I understand that 1/3 of the kids in the school did not re-enroll. Mine had already moved on to high school (also private where she was a classmate of Carson Palmer, now Oakland QB). Anyway, the following year the school was advertising in the Pennysaver for students. That is the difference.

  16. I am not a socialist. I despise socialism as a theory and the attempts to put it into practice. I believe that socialism is immoral, and that Socialism always fails, because it must always lead into bankruptcy and the dissolution of civil society.

    The Constitution of the United States was written by men who were liberals (in the sense of that word in the 19th century, not in the debased 20th century use of that word to mean socialist) the inviolability of private property and the sanctity of contract were absolute axioms to them. Since the ideas behind socialism were present in history and philosophy well known to them, we can safely say that they abominated it.

    We are now three generations into socialism and the to expect that Supreme Court would awaken from its dogmatic slumbers and stop the beast now was a vain hope.

    Nonetheless John Roberts has secured himself a prominent place in the ninth circle of hell, and the abomination of all true patriots.

  17. Michael: My brother is physician in a large mid-western city. 2 years ago he sold his practice (a partnership with 5 other doctors) to their hospital. He was thrilled to do it because he was sick of the hassle, audits by medicare really upset him, and he did not want to spend time running a business or sink more capital into nonsense like medical information systems. He is now making more as an employee than he did as an independent physician. He is very happy he did it.

    My nephew is a young resident and my son-in-law to be is a medical student. Neither of them has any conception of wanting to be independent of a larger institution.

  18. I bought “Good Calories,Bad Calories” by Gary Taubes and was struck by how much really bad science there is in medical research. Where have I seen this before? Why Climatology and Economics.
    I have since tried low carbs and it does work as far as losing weight goes.
    “Science is belief in the ignorance of experts” Richard Feynman

    Gov’t grant money has badly corrupted science. Who on getting a grant to study Global Warming would have the nerve to find it BS? You would be fired for wrecking the gravy train.
    One can just imagine how sensible the people who set clinical guidelines are. I would guess most of them do not like clinical work.

    More on topic Google Richard Epstein -A Confused Opinion. This appeared in NYT Op Ed page today much to my surprise. Epstein is someone who almost always gets it right. Sorry I don’t know how to paste a link when using a MacBook.

  19. ” I would guess most of them do not like clinical work.”

    The AMA is run by physicians who are looking to get out of clinical medicine. It has lost all credibility with physicians in practice that I know. The CMA is similar. The entire boards of these organizations are composed of older docs who are getting out of practice. The positions help them make contacts in the insurance or administration business.

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