• Twitter
  • Facebook
News-Sentinel.com Your Town. Your Voice.
Opening Arguments

A gestalt shift

I've been reading everything I can on the Supreme Court's Obamacare ruling, and it seems to amount mostly to cries of foul from conservatives and a great deal of gloating by liberals. About the best analysis I've seen so far is by Larry Slolum at the Legal Theory Blog, who says it represents a "gestalt shift" in constitutional law rather than the "tectonic shift" invalidating the mandate (instead of merely renaming it a tax) would have been:

But there is an alternative explanation.  There is an alternative gestalt concerning the New Deal Settlement.  For many years, some legal scholars had advanced an alternative reading of the key cases uphold New Deal legislation.  On this alternative reading, the New Deal decisions were seen as representing the high water mark of federal power.  Although the New Deal represented a massive expansion of the role of the federal government, it actually left a huge amount of legislative power to the states.  On the alternative gestalt, the power of the federal government is limited to the enumerated powers in Section Eight of Article One, plus the New Deal additions.  These are huge, but not plenary and unlimited.

Today, it became clear that four of the Supreme Court's nine justices reject the academic consensus.  As Justice Kennedy states in his dissent joined by Scalia, Thomas, and Alito:

"In our view, the entire Act before us is invalid in its entirety."

The alternative gestalt is no longer an outlier, a theory endorsed by a few eccentric professors and one odd justice of the Supreme Court.  And because Justice Roberts believes that the mandate is not a valid exercise of the commerce clause (but is valid if interpreted as a tax), he has left open the possibility that there is a fifth justice who endorses the alternative gestalt.

We are only minutes into a long process of digesting the Health Care Decision.  But in my opinion, one thing is clear.  Things are now "up for grabs" in a way that no one anticipated when the saga of the constitutional challenge to the Affordable Care Act began.

If he's right, the debate that's begun in the country over how much power the federal government should have is going on at the Supreme Court level, too. And if his optimism is justified, it is by no means settled that the acculumation of federal power will continue.


Thu, 06/28/2012 - 2:48pm

In a way I disagree with the opinion of Chief Justice Roberts on the healthcare bill known as ObamaCare.  It's kind of the same way that I would have disagreed with Chief Justice Taney in his 1857 Dred Scott v. Sanford opinion.  In a way they both aren't right, but the angles they used could be constitutional.  The later outcome could be the same result.  A secession of one or more states.  The Roberts and the Taney decisions are just as equally huge and evil.

The United States is a voluntary union.  The people in a state have to believe there are advantages to staying.

The Republicans might want to consider a constitutional amendment to address the taxation clause and the 75 year old bogus commerce clause in the Constitution.

Christopher Swing
Thu, 06/28/2012 - 3:27pm

Ah, dragging the laughable Breitbart hyperbole into it, I see.

Thu, 06/28/2012 - 5:15pm

I have seen virtually no gloating by liberals. Frankly, we thought we'd lose this one. But I've seen plenty of hyperbole from the right. Romney is spitting about how he'll repeal this on day one. Is he so stupid he doesn't know what the president can't do?

I realize Tim will attempt to drag me into a bet over this, but I think this ruling pretty much guaranteed Obama's re-election. Americans love a winner. That and falling gasoline prices.

tim zank
Thu, 06/28/2012 - 7:33pm

The biggest "damage" done by this decision is to the Democrat Party "brand".  Barry & Dems sold Obamacare, on tape (see the Stephanopolis interview in particular) denying it was a tax.  He lied, they lied, you lied and now you all have to convince all those middle class middle of the road dems and indies that voted for hope and change that this new enormous tax increase is necessary. 

As of today, all those regular working stiffs (but not the unemployed recipient class or the illegals, only those of us with jobs) were handed the single largest tax increase in history. What you think was a gift from Roberts is in effect a noose around your neck.

You have short memories,  the 2010 rout wasn't very long ago, and the mood out there is not one of hope and change anymore among working people, it's one of WTF happened?

Good times in November kids, good times!