The “radical” Supreme Court dissent that John Roberts would not sign

This is the start of the other Supreme Court ACA discussion — analysis of the dissent signed by four of the Republican justices.

First, a section of the dissent (pdf; my emphasis and paragraphing throughout):

Major provisions of the Affordable Care Act—i.e., the insurance regulations and taxes, the reductions in federal reimbursements to hospitals and other Medicare spending reductions, the exchanges and their federal subsidies, and the employer responsibility assessment—cannot remain once the Individual Mandate and Medicaid Expansion are invalid.

That result follows from the undoubted inability of the other major provisions to operate as Congress intended without the Individual Mandate and Medicaid Expansion. Absent the invalid portions, the other major provisions could impose enormous risks of unexpected burdens on patients, the health-care community, and the federal budget. That consequence would be in absolute conflict with the ACA’s design of “shared responsibility,” and would pose a threat to the Nation that Congress did not intend.

Now, early comment by Scott Lemieux at Lawyers, Guns and Money:

The Radicalism (And Hackery) of the Health Care Cases Dissenters

As mentioned below, the four dissenters to today’s health care ruling [pdf] issued an unusual jointly signed opinions of quite remarkable radicalism.

It would have radically re-shaped the constitutional order by not merely ruling the individual mandate as beyond the power of the federal government to regulate interstate commerce, but taken the even more radical step of limiting the federal government’s spending powers by preventing it from expanding Medicaid.

Taken together, this would constitute a radical transformation of the American constitutional order. And because of these defects, the dissenters would have ruled the PPACA “invalid in its entirety.”

The argument is that the mandate and the Medicaid expansion are not valid regulations of interstate commerce, but that they are also so essential to a broader regulatory scheme that the entire act must fall. As long as McCulloch v. Maryland remains good law, this argument is transparently wrong.

For legal freaks, this is McCulloch v. Maryland. It establishes Congress’s right to make laws that are necessary to exercising its expressed (explicit) powers, creating the notion of implicit powers.

The ACA dissent ties that in knots. By definition (per McCullough), if the mandate is essential to the broader regulatory scheme, it cannot be invalid. You’d have to reverse McCollough to get to that conclusion.

This is why the Republican judges are “radical” — because their “law” isn’t at all grounded in actual law, but in bench-legislated outcomes wrapped in fog. Imagine where we’d be with Rule of Law, already in shreds, if Roberts had signed on to that!

This is also why I call them the “Republican judges” — because they are nakedly so.

By the way, I’ve heard that the dissent refers to the majority opinion as “the dissent” (Updated: Discussed here.). If true, it means that when the present dissent was written, it was indeed the majority. [UPDATE: I'm not alone. Thanks to twitter friend @jordanadambanks for this link.]

Was Roberts voting to restore the appearance of legitimacy to the court that bears his name? I do have my thoughts.

There’s much more in the Lemieux piece. Please do click over; there a second half, and a second point, I haven’t touched. Plus great praise for Ginsberg.

Let this start the discussion — that dissent deserves all the attention it gets.

[UPDATE: Some phrase tweaks for clarity.]

GP

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Gaius Publius is a professional writer living on the West Coast of the United States. Click here for more. Follow him on Twitter @Gaius_Publius and Facebook.

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