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Welcome to The Journal Editorial Report I'm Paul if you go well so much for that radical right wing Supreme Court.
Chief Justice John Roberts joining the four liberal members voted to uphold the core of president Obama's health care law this week.
Saying the controversial individual mandate.
Is constitutional not under the commerce clause but -- attacks.
Our panel is here with complete coverage of the legal arguments behind the decision and the political implications for November and beyond I'm joined by Wall Street Journal columnist and deputy editor Dan -- anger editorial board member Joseph Rego.
Editorial board member door fear of analysts and opinion journal dot com editor James Toronto so James while all of us were spending months debating the commerce clause.
John Roberts -- to -- Mickey and upheld the U healthcare law on the tax provision.
What do you make of the argument.
Well we can -- thank -- Supreme Court cases in which five the court has reached the right result but done so with back legal reasoning back constitutional reasoning.
In a way this case is sort of the opposite because when we got from the court and by that I mean chief Justice Roberts who was in a position to decide this -- unilaterally.
Was a really good exposition on the commerce clause which was the central constitutional argument.
And then a lot of really labored side -- Statutory interpretation to somehow turn this into attacks in the bill that passed the -- there was actually a list of the new taxes obamacare contain this wasn't an.
The mandate tax wasn't in it Joseph what do you think of be persuasive this of the tax.
One problem is that.
They didn't as James said they didn't structured as a tactic called a penalty so just -- chief Justice Roberts essentially had to rewrite the law to come to this result.
The larger problem is that whatever concessions they -- on the commerce clause if you can say well you can do the exact same thing with the tax.
That kind of it.
It's a huge loophole in terms of limiting congress'.
-- -- that's right they're saying that the commerce clause I'm under the commerce cause a mandate is unconstitutional.
Unless congress decides to -- a penalty on that mandate.
And call it -- tax or even not attacked.
The judges can interpreted as a tax and there are four.
It is constitutional so that would seem to essentially eviscerate.
Any limits that they have imposed here on the commerce clause.
I would say so -- I mean there's.
Much about this opinion by John Roberts I mean as we said in our editorial usually it's a fight for opinion to -- 144.
-- Chief Justice writing the whole thing -- basically rewriting the statute is James was suggesting.
Mandate tax was not in the statute.
He basically has had to -- -- the statute to arrive at this decision and the question is why did he do that why did he.
Pull out an argument that basically.
No one had met virtually not been made in the oral arguments before the court answer that question again why do you think you.
I think because he was intimidated.
By the idea that if after Citizens United which -- -- to describes a purely political decision.
He went 54 with the majority.
That the left was going to attack and try to delegitimize the court and the idea here is that Justice Roberts is protecting the integrity of the court.
-- what about the argument that we've -- on the left and some on the right saying that this is actually an -- genius on the part of justice were tests is because.
-- he's playing chess because he's protect he put limits on the constitution in the long run in the commerce clause.
But in the short run you have to accept obamacare but that's worth the price.
Yes I've I've heard nothing but it was the only amusing thing.
The most monumental.
-- of rationalizations.
Falwell was essentially the justice more aid before the threat of exactly what Dan just said you -- you think it was the intimidation by the press I didn't like it.
But and the politicians.
Yes he was covered by the most extraordinary explanations for example.
What was that they said he Willis burn mentioning the east the stability of the status of the court which was his two key so that it wouldn't look -- a political instrument well.
-- -- -- -- Is that the business of the Chief Justice.
To worry about finishing his courts credentials rather than doing justice in providing -- sane and rational and not extraordinarily.
This -- piece of -- me.
Well -- whether this is our strategy he's adopted his genius work too clever by half only time will now let's get together in twenty years and and look back are.
But I will say he was very good on the commerce clause let me read you -- that they are passage.
Quote the commerce -- is not a general license to regulate an individual from cradle to grave simply because you'll predictably engaged in particular transactions.
But it decisively strikes down the argument that the left had taken for granted.
But the price of that is expanding the taxing power I'm not sure how much -- taxing power has expanded here there are lots of taxes and Indy influence by individual behavior.
Even if one says okay this is this is this goes too far you can impose a tax in order to.
Partly due to aren't in effect force people to do something they could have done it through a tax credit.
You're supposed to be doing it -- they could have done that but they don't -- your only supposed to be able to apply taxes on by half of of methods that are constitutional.
In this case he said the mandate.
But we can apply a tax on it in their form make it constitutional right that seems to me to be an expansion of the taxing power.
And one that you'll be very hard to limit in the future.
Yeah I think future congresses will try to -- take the basis of his reasoning to impose taxes for other purposes say in the area of the environment.
It will be litigated and liberal justices -- -- Justice Roberts interpretation of the taxing power.
To support those those legislation -- there was one other.
Limitation on that congress that was part of this opinion and that's on Medicaid giving an opt out provision for the states is this potentially.
Limitation on federal power going forward.
-- they said states kicked it the federal government can attach conditions to to funds they can't coerce the states they can't.
Commandeer their resources that's that's a step forward it's the first time in history that the court has limited the spending power.
It's it's a significant seven to win.
But but and in practical terms I'm not sure how from Moscow.
James what do you think of the argument that we've heard from some people like John Roberts may have changed his mind in making this making this -- -- first -- sided with the below the conservatives on the court to overturn all or part of it.
And then under pressure.
Two to -- 144 opinion.
I have no sources close enough to -- to get -- hard but the clue I found him it in the case Lars.
All right if you -- justice Ginsburg its concurrence its fullest -- references to the Chief Justice it's written like a descent and a bitter dissent.
And the fight Desantis.
By the conservatives the dissent by the conservatives the actual descent pot -- signed by all of them jointly.
Yeah which is very usual so -- suggests that something happened to him there.
The fly by night briefing of the majority opinion which is that's really signaling that Justice Roberts at the last minute decided to go over and write this really -- opinion.
Whereas the rest of analyst James was suggesting on them on the commerce clause was very strong thoughtful material this was just made up at the last minute like he was looking just -- of looking for -- -- A reason to uphold this bill.
And he found that one of the most disturbing things about this aside from the result of this judgment is the fact that you could have intimidated.
Very good chance the justice and and you could send people to explain an ex co pay this very thing with the most bizarre sort of it's all right toward.
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