It has long been puzzling to me that some decent lawyers (including many of my own lawfirm partners even, truth be told!) were unable to parse the Supreme Court’s own holdings for what they actually say — rather than what they might wish they said. [First outlined on March 23, 2010 — the morning after the ACA of 2010 was signed into law; more clearly set forth in October, 2010 — and then very sharply made plain (with the prediction that Chief Justice Roberts would write the majority opinion, no less!), in January 2011.]
In addition, Chief Justice Roberts is not once ounce more “liberal” today, than he was before Monday’s immigration opinion — but many at Fox and elsewhere are wailing that he’s become a turn-coat. No — the Chief Justice simply did what a true conservative does: he applied the law and the precedents he, and others before him, have venerated — for at least 75 years, now. He did not let his politics — whatever those might be — change an outcome on a clearly constitutional exercise of the taxing power. He seems only to have done his job: apply the law to these facts. So be it. Let the howling commence.
Perhaps immodestly, now — I’ll quote from two of my January 2011 posts, on this blog — pointing out the flaws in Judge Vinson’s reasoning, below — and the flaws in Judge Hudson’s (both of which were corrected by the Supremes this very morning). But do go read each — here’s a bit:
. . . .In December 2010, Judge Vinson rejected the idea that the insurance mandate was a tax, even though Congress directly enacted it as an amendement to the Internal Revenue Code. In so doing, he simply assumed away the case. I will all but guarantee that the Supremes will not take this Vinson route — for to do so would be to impliedly invalidate many other plainly constitutional tax and spend schemes. I now pretty firmly expect that Chief Justice Roberts will be the fifth (and deciding) vote for the consitutionality of the insurance provision — as a rationally-related taxing measure.
Even so, Judge Vinson’s opinion does a better job of analyzing the “necessary and proper” clause than Judge Hudson’s did. Judge Vinson still makes an obvious — and clearly fundamental — error (though I suspect Judge Vinson’s error/omission is intentional, while Judge Hudson’s opinion, on the other hand, seemed blissfully unaware of this entire line of reasoning). . . .
January 11, 2011
UPDATED: It seems — see graphic, at right — I’ve once again under- estimated Fox’s prowess. They had a “Dewey Defeats Truman” moment, first thing this morning! Hilarious! — Gosh, I hate being right all the time.