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
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