Supreme Court decisions aren’t usually an entertaining read. Dissents sometimes are and Alito’s dissents are notable, but this one is worth reading and rereading, not only for the biting rhetoric, but its reasoning.
“Today’s decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two. In all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue,” Alito begins.
He delves into the three increasingly absurd decisions which first found that, “the ‘penalty’ for failing to comply with the mandate was found to be a ‘tax'”, and then “the Court came to the rescue by finding that the Federal Government is a “State”, and now “in the trilogy’s third episode, the Court is presented
with the daunting problem of a ‘tax’ that does not tax.”
“Can the taxing power, which saved the day in the first episode, sustain such a curious creature? In 2017, Congress reduced the ‘tax’ imposed on Americans who failed to abide by the individual mandate to $0,” Justice Alito sarcastically asks.
Justice Alito notes that, “instead of defending the constitutionality of the individual mandate, the Court simply ducks the issue and holds that none of the Act’s challengers, including the 18 States that think the Act saddles them with huge financial costs, is entitled to sue” while Democrat states were able to get standing to illegally force the citizenship question off the census, not to mention that, “some years ago, Massachusetts was allowed to sue (and force the Environmental Protection Agency (EPA) to regulate greenhouse gases) on the theory that failure to do so would cause the ocean to rise and reduce the size of the Commonwealth.”
Alito defends the standing of the states at length and the hypocrisy of the court leading to the final scathing conclusion.
“No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats. A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. So a tax that does not tax is allowed to stand and support one of the biggest Government programs in our Nation’s history. Fans of judicial inventiveness will applaud once again. But I must respectfully dissent.”
But, as usual in the Roberts Court, most SCOTUS decisions are the result of internal dealmaking and attempts at maintaining a general status quo, trending somewhat conservative on precedents, while ceding every major social controversy to the Left.
The Biden push to pack the court and the Demand Justice campaign against Breyer has led to new shows of unity with Breyer and some of the justices going out of their way to emphasize a new solidarity. Meanwhile justice remains undone.
Article posted with permission from Daniel Greenfield
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