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Ginsburg: Roberts’ Commerce Clause Analysis “Not Outcome Determinative”

Posted by Phoenix Woman on June 28, 2012

This is for those folks who think that John Roberts just gutted the Commerce Clause and made it impossible for Congress ever again to pass progressive legislation:

Here, from the opinion, here’s Justice Ginsburg on Chief Justice Roberts’ take on the Commerce Clause (footnote 12, p. 102, bolding mine) –

Ultimately, the Court upholds the individual mandate as a proper exercise of Congress’ power to tax and spend“for the . . . general Welfare of the United States.” Art. I, §8, cl. 1; ante, at 43–44. I concur in that determination, which makes THE CHIEF JUSTICE’s Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion.12

12 THE CHIEF JUSTICE states that he must evaluate the constitutionality of the minimum coverage provision under the Commerce Clause because the provision “reads more naturally as a command to buy insurance than as a tax.” Ante, at 44. THE CHIEF JUSTICE ultimately concludes, however, that interpreting the provision as a tax is a “fairly possible” construction. Ante, at 32 (internal quotation marks omitted).That being so, I see no reason to undertake a Commerce Clause analysis that is not outcome determinative.

In other words, it seems like Ruth Bader Ginsburg, at least, believes that Roberts’ bloviatings on the Commerce Clause were just so much importless hot air.

3 Responses to “Ginsburg: Roberts’ Commerce Clause Analysis “Not Outcome Determinative””

  1. Charles II said

    I think that what matters regarding the Commerce Clause is whether the next few appointments to the court are conservatives or moderates (the appointment of liberals apparently being impossible). The conservatives on the Court clearly would like to repeal the 18, 19th, and 20th centuries, but the system is also clearly headed for a crackup.

    You might be interested in a strange feature of the ruling that Paul Campos noticed:

    It is impossible for a lawyer to read even the first few pages of the dissent without coming away with the impression that this is a majority opinion that at the last moment lost its fifth vote. Its structure and tone are those of a winning coalition, not that of the losing side in the most controversial Supreme Court case in many years. But when we get to Page 13, far more conclusive evidence appears: No less than 15 times in the space of the next few pages, the dissent refers to Ruth Bader Ginsburg’s concurring opinion as “Justice Ginsburg’s dissent.”

    There is one likely explanation for this: The dissent was the majority opinion when those who voted to overturn the entire ACA signed off on sending their text to the printer. In other words, Chief Justice Roberts changed his vote at the very last possible moment.

    Was a deal cut? Did Roberts realize that undoing things like coverage of pre-existing conditions for minors and health insurance for kids to the age of 26 would create considerable sympathy for Obamacare? Or did he realize that the Court is already held in contempt as a partisan flea circus by everyone to the left of Orrin Hatch? Something happened to sway Roberts, and it probably wasn’t sympathy for the uninsured.

    I think Dahlia Lithwick will be worth listening to. I’d bet she’s on Rachel tonight.

    • I’d heard that. It might explain why Scalia’s been even freakier than normal lately — and why Roberts’ ramblings are so seemingly rambling.

    • Charles II said

      Former Acvting Solicitor Gen. Neil Katyal on Rachel said there may be concern about an attack on the powers of the Commerce Clause.

      Of course, he also said that Roberts is an honorable man, so I don’t know what to think.

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