Special:NYT, Barnett On Healthcare Decision=2 Lib Wins


See also: http://en.wikipedia.org/wiki/Randy_Barnett on the libertarian legal thinker.

UPDATE July 2: More on ‘Obamacare’…Many libertarian fans don’t get that they have NO complaint on the decision except what Libertarian advocates actually put before the court, which agreed  with libertarians! Under common understandings of common law some forms of coercive programs are constitutional–in some countries they’re in the Constitution though not necessarily coercive, simply common national programs–so claims that this is the end of liberty are silly and inform no one– but OUR aim is to better that understanding by making voluntary options common-law standard. For this growing public consensus and info to jurists is needed, and then judicial understanding will adjust to see coercive programs as obsolete…just as understanding of civil unions has begun to change.Friend of the court briefs work, and those on libertarian themes should increase.–MG

We won on the two major issues that we litigated in this case that otherwise were headed the wrong way. One is that the individual mandate is beyond the power of Congress under the commerce clause. There were five votes; the majority of the court said we were right in every one of our arguments about the commerce clause power. Congress does not have the power to compel an individual to engage in commerce so that they may exercise it. We won on that issue. We also won on the issue of coercion of states. It’s unconstitutional to withhold Medicaid funding if the states don’t agree to expand their Medicaid coverage. That’s the first limit on the spending power that we’ve seen in decades. So we won on these two major issues, and then at the end of the day, the Affordable Care Act is upheld as a tax. The court rewrote the mandate as a tax and allowed it to be enforceable as a tax…

It’s a victory for limits on the commerce power. It means the Congress can’t use this power in the future, and as far as the Affordable Care Act goes, what happens next is what was going to happen anyway, and that is now the American people will decide if they approve of this tax that has been imposed upon them, at least according to the court. There was a reason the President didn’t call it a tax in the first place; taxes are pretty unpopular, and now there’s going to be a national election about whether this tax is acceptable…

The NYT agrees: http://thecaucus.blogs.nytimes.com/2012/06/28/an-important-new-limit-on-the-commerce-clause/

June 28, 2012, 2:16 pm68 Comments

An Important New Limit on the Commerce Clause


Broccoli carried the day.

To the delight of conservatives and libertarians and the dismay of many legal scholars, the Supreme Court ruled that the commerce clause in the Constitution does not empower Congress to force people to buy health insurance — or healthy green vegetables like broccoli, for that matter.

Widely dismissed — even ridiculed — by most constitutional scholars, the broccoli argument was cited by Chief Justice John G. Roberts Jr., who also wrote, “Under the gov­ernment’s theory, Congress could address the diet problem by ordering everyone to buy vegetables,” adding, “That is not the country the framers of our Constitution envisioned.”…

Charles Fried, a constitutional law professor at Harvard, said from Rome, where he was on vacation, that he was “dispirited” by the ruling. “The limitation of the commerce clause runs counter to 75 years of Supreme Court jurisprudence,” he said…

the decision may prove a Pyrrhic victory for liberal supporters of Congress’s expansive power. Some Libertarians, while disappointed that the law was not struck down, were celebrating the stake the court drove into the heart of the commerce clause.

“We finally won a three-decades-long battle over the commerce clause,” said John Eastman, a conservative and a professor at Chapman University.

The Supreme Court nonetheless upheld the act under Congress’s taxing power, but a strong libertarian argument runs through that part of the opinion, too. Chief Justice Roberts made clear that the health care act survived because the “penalty” for not buying health insurance functioned as a tax, and is sufficiently modest that individuals remain free to opt out of the mandate if they wish by simply paying a tax.

In this regard, it is like the federal tax on cigarettes. Congress does not want Americans to smoke, so it imposes a tax on those who do. But it is not so high as to make it financially prohibitive for people to smoke; it is not, say, $1,000 a pack. That would be deemed a penalty or fine. Where that line should be drawn in future legislation — between “tax” and “penalty” — is likely to be the subject of intense argument and continuing litigation.

If nothing else, Chief Justice Roberts has probably opened the floodgates to new litigation. With a commerce clause victory in hand, newly emboldened libertarians are shifting their sights to Congress’s broad taxing and spending powers. “It’s the next dragon we have to slay,” Professor Eastman told me.

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