CEI Today: Supreme Court Obamacare ruling, federal court ruling on global warming, and pension problem in Highway Bill


Openmarket.org: Obamacare Upheld, 5-to-4: A Perverse Decision That Undermines Political Accountability

Today, in a really perverse ruling, the Supreme Court upheld Obamacare’s individual mandate as a tax in a 5-to-4 decision, even though Obamacare’s supporters repeatedly denied when they were passing it that it was a tax.

I’ve said many times that this is not a conservative Supreme Court. It is more hostile to business than the average federal appeals court, routinely reviving lawsuits against businesses that were dismissed by lower courts, and it has struck down state sentencing practices upheld by most state courts, overturning thousands of criminal sentences for reasons having nothing to do with guilt or innocence. (Yesterday, for example, the Supreme Court struck down laws in 29 states mandating life without parole for certain juvenile murderers, and questioned whether judges could voluntarily impose such life sentences at all. Was that conservative?) Chief Justice Roberts joined liberal justices in striking down many state criminal sentencing schemes for reasons having nothing to do with guilt or innocence in cases like Cunningham v. California. >View the full analysis on Openmarket.org

Openmarket.org: Supreme Court Concocts New “Rational (Tax) Basis” Test in Upholding Health Law

In many ways, today’s decision compounds one of the biggest weaknesses in the Supreme Court’s commerce clause jurisprudence. Under the so-called “Rational Basis Test,” which applies to economic regulation, the Court has refused to question due process or equal protection violations when Congress’s reason for enacting the law might be “rationally related” to a legitimate government interest. Under that test, however, Congress does not have to explain why the law was “rational” as long as the Supreme Court is willing to substitute its own rationale, however plausible.

In today’s decision, the Court was finally willing to say there is some economic regulation that does not satisfy the Rational Basis Test — some small zone of private activity that remains outside Congress’s reach. That still wasn’t enough, though, as the Court deferred to Congress and rubber stamped its over-reach on new grounds. This decision not only validates Congress’s power to regulate through the tax system. It says that Congress does not need to call a regulation a tax in order to get away with it. Congress and the President can even insist it is not a tax, just so long as a majority of the Supreme Court are willing to rationalize it as one. Meet the new Rational Tax Test. > View the full analysis on Openmarket.org

CEI Liberty Week Podcast -June 28, 2012: The Health Care Decision

General Counsel Sam Kazman shares his thoughts on the Supreme Court’s health care decision, the Commerce Clause, Congress’ taxation power, and more. > Listen to the podcast

>Interview a CEI expert on the Obamacare decision



Globalwarming.org: Reflections on the D.C. Circuit Court GHG Decision


With the case law on GHG regulation hopelessly botched by the Supreme Court, only Congress can rein in the EPA — and only if there is a change of management in the White House and the Senate in November. > View the full commentary at Globalwarming.org


Openmarket.org - Highway Bill Would Continue Pension Underfunding Shell Game

As if the Senate Highway Bill (S. 1813) could not become more of a lumbering monster, along comes its Section 40312, which allows “pension smoothing,” an accounting trick whereby pension managers can downplay funding shortfalls by spreading losses across several years. As CEI’s Marc Scribner noted yesterday, “While this in theory reduces expenditures necessary to pay down these losses in the short-run, it exposes the government (read: taxpayers) to significant additional risk over the medium- and long-runs.” > View the full commentary on Openmarket.org

> Interview Ivan Osorio



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