John Roberts and the Commerce Clause
 

In the excitement of upholding Obamacare, has there been much discussion of Roberts' attenuation of the Commerce Clause.

For example, it was one of the prime tools to implement much of the federal civil rights laws currently in force. Roberts' argument undermines reliance on that.

Want to be that will be a key argument when civil rights laws come to the court next year?

All I can say is Roberts is beginning to look scary to me!

Heard this last night. Got the liberals on his side in a 7-2 decision, no?

The more I think about it the more it looks to me like Roberts injected the equivalent of a "STUXNET" into the constitutional construct around the commerce clause.

I think even Roberts was clear that his "attenuation of the Commerce Clause" was more specifically restriced to the attempted expansion into the regulation of non-activity that the Obamacare individual mandate was argued to be an extention of.

It is pretty clear that his opinion and the ruling all but shuts the door on any future Commerce Clause expansion of power to regulate non-activity, but I'm not very convinced that the scope of his ruling encompasses any "roll back" of government regulation of otherwise interstate commercial activity.

Don't know that civil rights advancements where based on the "non-activity" that the Obamacare mandate was to have.

It is an increadibly interesting decision that wiil result in some very interesting intended consequences and equally interesting un-intended consequences!

On the whole I view it as a conservative "tactical advance to the rear" that accepted a short term defeat in battle in the hope that a realignment of the forces in battle will result in an alternative path to victory in the war. It is a tortured and convoluted strategy fraught with real risk but obviously Roberts after weighing all his concerns, constitutionality, stare decisis, legacy, politics, etc. figured it was the least injurious to the republic. I hope he will be proven correct in time. But I'm biased to seeing the expansion of the nanny state as the greatest threat to individual liberty secured via the American Revolution.

Ah saw this after my post, very apt analogy!

Ditto all of that, except for the "tortured and convoluted" part. Seems like a pretty straight decision to me, although he had no business saying anything about the commerce clause. Once the statute was found to be valid under the taxing power, the commerce clause argument became superfluous.

From what little I know about it, the Medicaid part of the opinion is the scariest part. The logic of that one could affect all kinds of federal "coercion" of the states. Nah.

I don't see why. He gave you the most right-wing opinion he could and still comply with established constitutional principles.

You are of the mind that the finding that the statute was valid under the taxing power to be something other than "tortured and convoluted"? Care offer any characterization as to precisely how Roberts arrived at that finding and what supported it?

Scalia's dissent is here and he makes a compelling case that the reinterpretation of the staute's clearly and repeatedly defined "penalty" as a tax is unsupported and even contrary to established law. In fact Obama and his administration refuse to accept Roberts finding but accept his ruling, still today.

Scalia's dissent here:

Scalia, Kennedy, Thomas, and Alito Dissent: 'We Cannot Rewrite the Statute to Be What It Is Not' | The Weekly Standard

Roberts ruling is now law not because it is supported by prior legal doctrine but because the simple majority have declared it to be so, the finding is an example of judicial activism if there ever was one.

He was worried about the public opinion of SCOTUS. It is good he is objective in his opinions and not swayed.

The opinion does it nicely, I think. So does the government's brief, which I linked to previously. That Scalia disagrees with Roberts does not mean that Roberts' logic is tortured or convoluted.That's just politics. Doesn't mean anything.On the commerce clause part and the Medicaid part, I agree. On the taxing power, it's right down the middle of the plate, AFAIK.

It is not that Scalia disagees, it is that the argument Scalia lays out both disputes and refutes the logic the Roberts relies upon to arrive at his finding.

Roberts so-called limiting of the Commerce clause is not, strictly speaking, part of the decision, or precedent, is it? It is not binding on anyone or anything, is it?

That's correct, it is not binding. It is what lawyers call "dicta." As a practical matter, though, it is a really strong signal about how the Court will rule if the issue comes up again. Lower court judges will have to be pretty brave to ignore it.

I don't understand how O can argue the issue is under commerce clause and deny it is a tax and then SCOTUS didn't say it was unconstitutional under CC and that was the end of it.
Robert's essentially rewrote the law.