7 votes that portions violate Spending Clause

(http://www.autoadmit.com/thread.php?thread_id=1981509&forum_id=2#20975088)

...until one retires or dies in a year.

(http://www.autoadmit.com/thread.php?thread_id=1981509&forum_id=2#20976113)

Correct. It's a non-material piece of the opinion, do it's dicta.

(http://www.autoadmit.com/thread.php?thread_id=1981509&forum_id=2#20975702)

Although you could make the argument that that Roberts *had* to reach the commerce clause issue since his tax rationale is based on using any reasonable means to find the law constitutional.

(http://www.autoadmit.com/thread.php?thread_id=1981509&forum_id=2#20975658)

what does this mean? what are the implications going forward?

(http://www.autoadmit.com/thread.php?thread_id=1981509&forum_id=2#20975442)

2. A majority of the court now expressly rejects the Necessary & Proper Clause as a basis to regulate inactivity (unless they tax it).

3. A majority of the court now puts a dollar figure on a coercive spending clause stipulation.

(http://www.autoadmit.com/thread.php?thread_id=1981509&forum_id=2#20975588)

so i don't think that the decision will significantly limit congressional power.

(http://www.autoadmit.com/thread.php?thread_id=1981509&forum_id=2#20975640)

Also, the tax amount has to be non-prohibitive.

So, Congress can do what you're saying, but doesn't have a big hammer.

(http://www.autoadmit.com/thread.php?thread_id=1981509&forum_id=2#20975715)

Congress can't compel economic activity under the commerce clause (unless it only imposes a relatively small, non-prohibitive fine for noncompliance, in which case it's a valid exercise of its taxing power).

(http://www.autoadmit.com/thread.php?thread_id=1981509&forum_id=2#20975688)

http://lsolum.typepad.com/legaltheory/2012/06/a-strategic-interpretation-of-justice-roberts-opinion.html

(http://www.autoadmit.com/thread.php?thread_id=1981509&forum_id=2#20976305)

http://prawfsblawg.blogs.com/prawfsblawg/2012/06/the-healthcare-decision-and-the-costs-and-benefits-of-formalism-in-federalism.html

The Healthcare Decision and the Revival of the Taxing Power: The Costs and Benefits of Formalism in Federalism

There are two species of "federalism decisions" that emanate from the Court nowadays -- formalistic deference and formalistic lack of deference. By "formalistic," I follow Don Regan's definition (in his classic 1995 article on Lopez): “The essence of formalism in legal interpretation is paying no attention to the purpose embodied in the text one is interpreting." Whether the court is deferential to Congress or not, the Court says nothing much about what the Article I doctrine of enumerated powers is supposed to accomplish. Instead, the Court focuses on some factor that is supposed to define a judicially manageable standard -- some gun crossing state lines, some "substantial effect" on commerce, some more or less phoney jurisdictional element, that will make the Court's life easy in terms of producing five votes or supervising lower courts. Rarely, however, does the Court actually ask the fundamental question: "Why should the feds be regulating this issue as opposed to the states? In what sense are the states' incentives inadequate to the task that the feds have undertaken?"

Today, the SCOTUS has continued this tradition by upholding the ACA individual mandate as a legitimate tax. Putting aside the result, the basis for the argument shows that the Court refuses to get serious about explaining why Congress should regulate some topics but not others.

I am not friend of the argument against the individual mandate's unconstitutionality: The idea that Congress cannot compel commercial acts because of some ersatz gerry-rigged distinction between mandating and forbidding acts strikes me as just one more formalistic limit unmoored from any consideration of the purposes of enumerating powers. The analogy to Printz was always forced. The lower courts that struck down the mandate always seemed to be confusing a Due Process protection for individual liberty with a Federalism objection based on the right level of government to impose a limit on private liberty. It seemed to me that a federal law regulating the provision of a properly national good like health insurance -- a good that is redistributive in character and, therefore, cannot be properly delivered by subnational governments -- ought to be upheld by the Court.

But, in relying on the Taxing power, the Court has failed to offer a coherent purpose-driven reason for the result. It cannot be the case that the feds always can "encourage" people to undertake actions by taxing their inaction: Such a taxing power would render nonsense the basic idea that the enumeration presupposes something not enumerated.

So... what is the limit on the taxing power? Since Kahriger, the usual doctrine has been that the tax must generate revenue. But this test is patently unsatisfactory, because all taxes generate revenue if they are set just below the level at which they would completely prohibit a taxed activity. A tax on same-sex marriages of, say, $1,000 per marriage would presumably generate some revenue -- but would it be a constitutional exercise of Congress' enumerated powers? If so, then the idea of the enumeration is exploded, except as a formalistic obeisance to the text of Article I. Put another way, no sane framer would bother to enumerate powers if the only limit on the federal government's taxing power is that the tax generate some revenue and that people who wish to avoid the tax can do so through either action or inaction.

So far as I can tell from an initial reading of the 5-vote majority, the Court offers no functional reason whatsoever for its analysis of the taxing power. Indeed, the Court insults our intelligence by describing the conventional analysis of taxation under its prior precedents as somehow "a functional approach" (page 35). Of course, there is nothing "functional" about its definition of the taxing power, if the only relevant factors are the power of a taxed individual to avoid action or inaction that is taxed. If the test is, as Chief Roberts describes it, paying the tax "may often be a reasonable financial decision," then Congress will have fairly unlimited power to regulate any activity simply by imposing an exaction just short of what it would take to eliminate the activity altogether. If the only other limit is that Congress (or the IRS) cannot "penalize" persons who choose to pay the tax, by stigmatizing them as "outlaws" (page 38), then such a limit is worse than formalistic: It is not even consistent with the precedent (Doremus) upholding the Harrison Narcotics tax.

How is such a taxing power consistent with any sensible notion of enumerating powers? Why would any sane framer, whether Hamilton or Luther Martin, Federalist or Anti-Federalist, ever agree to such an arrangement? The Court does not say.

Perhaps it is just too much to ask that the Court follow Chief Justice Marshall's advice that the Constitution’s “great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” Maybe, when the political heat is on and one needs to round up five votes, it is impossible to mark the "great objects" of the taxing power.

But I tend to think that more candor on what exactly the enumeration is supposed to accomplish would actually increase respect for the Court. There are costs to formalism that can outweigh its apparent administrative benefits -- for instance, the frustrating sense that one's constitutional system is a pointless machine of arbitrary rules. I suspect that today's decision will exacerbate those costs.

Moreover, this decision has confirmed my worst fears about the anti-mandate: using individual rights rhetoric to constrain the commerce power has led the Court to unleash a much more dangerous power that had lain dormant for more than a half-century (since Kahriger). Having bought the limit on the commerce clause, the Court has stripped this limit of any functional meaningfulness by re-affirming an essentially unlimited taxing power.

That's what happens when one ignores constitutional purpose -- one gets senseless federalism and senseless nationalism.

(http://www.autoadmit.com/thread.php?thread_id=1981509&forum_id=2#20976329)