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10 Polemics from the Supreme Court Decision

Cheryl Clark, for HealthLeaders Media, July 2, 2012

6. "Bait to the needy"
This phrase comes in discussion of why the individual mandate is indeed affected by interstate commerce. States can adopt such policies for their own citizens, as did Massachusetts, with the realization that they could receive an influx of unhealthy individuals from other states.

"Like Social Security benefits, a universal healthcare system, if adopted by an individual State, would be 'bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose.'"

7. "Hideous monster"
In their dissent, Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, and Clarence Thomas argued that the individual mandate is not relevant to the Commerce Clause. "If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton's words, 'the hideous monster whose devouring jaws...spare neither sex nor age, nor high nor low, nor sacred nor profane.'"

8. "Verbal wizardry"
In their dissent, the four justices took umbrage at the government's argument in defense of the individual mandate penalty being a tax. "What the government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists," they wrote.

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2 comments on "10 Polemics from the Supreme Court Decision"


Stuart Showalter (7/2/2012 at 10:50 AM)
The [INVALID] marks in the previous comment were meant to be dashes.

Stuart Showalter (7/2/2012 at 10:24 AM)
Cheryl's article says, "Ginsberg implied that her fellow Justice is ill-tempered and surly." When I read the opinion I wasn't sure if that was the meaning she intended for the word crabbed or whether she might have meant "complicated and difficult to understand." Or do you suppose she was being clever and leaving the interpretation to the reader? I would like to think that the justices are not ill-tempered and surly [INVALID] Scalia to the contrary notwithstanding [INVALID] but I'm not sure.