Mark D. White

Mark D. White

With respect to the dissent in the Obamacare decision from Justices Scalia, Kennedy, Thomas, and Alito (starting on page 127 of the PDF), I want to note several phrases that struck me as interesting, both in relation to Justice Ginsburg concurring opinion as well as Chief Justice Robert's majority opinion (discussed in a previous post here).

With respect to the activity/inactivity distinction supported by Roberts but refuted by Ginsburg, the four dissenters had this to say:

If all inactivity affecting commerce is commerce, commerce is everything. Ultimately the dissent is driven to saying that there is really no difference between action and inaction… a proposition that has never recommended itself, neither to the law nor to common sense. To say, for example, that the inaction here consists of activity in “the self-insurance market”… seems to us wordplay. By parity of reasoning the failure to buy a car can be called participation in the non-private-car-transportation market. Commerce becomes everything. (pp. 13-14)

With respect to Justice Ginsburg's expansive reading of the Necessary and Proper Clause, they say simply:

Article I contains no whatever-it-takes-to-solve-a-national-problem power. (p. 15)

Finally, with respect to Chief Justice Roberts' reading of the ACA as imposing taxes rather than penalties, justifying his vote to uphold the individual mandate, they say:

For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. (p. 24)

As many have noted already, Scalia et al's dissent repeatedly refers to Justice Ginsburg's opinion as "the dissent" rather than a concurrence, with only the final part of the actual dissent (beginning of p. 64) reflecting the fact that they lost the case, making the timing of Roberts' decision-making process all the more intriguing. Oh, to be a fly on the wall…