The Obligatory SCOTUS-Obamacare Descision Post

Unlike many bloggers, I won't claim enough legal knowledge to pretend to know whether the 4-1-4 decision of the Supreme Court which narrowly upheld Obama care by declaring it a permissible tax was correctly decided or not.  I don't like Obamacare, and I think it's bad policy.  That is enough to oppose it, but not to judge its constitutionality.

For intelligent commentary on this I suggest you visit Instapundit, Althouse, Patterico, the Volokh Conspiracy, to name a few.  Go to the sites and start scrolling down.

Actually, I take that first comment back; I'm pretty sure it wasn't correctly decided, since there really was no clear consensus, or even two clear opposing views from the court; somebody has to be wrong.

From my own point of view, I would have preferred a ruling that clearly killed Obamacare on the grounds that the mandate was an impermissible aggression against freedom of choice, and that the commerce clause could not be extended to regulating an economic inactivity, which is what the administration and liberals argued. Justice Roberts finding (along with 4 conservatives) that the Commerce Clause could not cover a lack of commerce, seems to be an important step in protecting us from the expansion of government through the Commerce Clause, but is it a clear enough precedent to survive the shift of a single Supreme Court justice?  I have my doubts.

His further decision (and essentially his alone) that the Obamacare mandate is an acceptable use of the taxing power of Congress (apparently taxing an economic inactivity is more legal than regulating it?) has the feeling of a contrivance. 

I would like to believe the Justice Roberts seriously believes this proposition, and that he is not presenting the argument as a convenience to get him to the point where Obamacare was upheld, but the Commerce Clause extension was denied, as many on the right have argued.  If he is that disingenuous, he is not fit to hold office.

As for theories, by many on both the right and left that having Obamacare legitimated, but declared to be tax will ultimately hurt Obama and the democrats in the 2012 election?  I'd like to believe it, but I don't have that much faith in the intelligence or predictability of my fellow man.

Judge Goes Off On Colleagues Environmental Decisions

Picked up at Aces, Judge Milan Smith, 9th Circuit, goes after legislation from the bench

By rendering the Forest Service impotent to meaningfully address low impact mining, the majority effectively shuts down the entire suction dredge mining industry in the states within our jurisdiction. . . . As a result, a number of people will lose their jobs and the businesses that have invested in the equipment used in the relevant mining activities will lose much of their value. In 2008, California issued about 3,500 permits for such mining, and 18 percent of those miners received “a significant portion of income” from the dredging. See Justin Scheck, California Sifts Gold Claims, The Wall Street Journal, April 29, 2012. The gold mining operation in this case, the New 49ers, organizes recreational weekend gold-mining excursions. The majority’s opinion effectively forces these people to await the lengthy and costly ESA consultation process if they wish to pursue their mining activities, or simply ignore the process, at their peril.

Unfortunately, this is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors. In one of the most extreme recent examples, our court held that timber companies must obtain Environmental Protection Agency permits for stormwater runoff that flows from primary logging roads into systems of ditches, culverts, and channels. Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). In the nearly four decades since the Clean Water Act was enacted, no court or government agency had ever imposed such a requirement. Indeed, the EPA promulgated regulations that explicitly exempted logging from this arduous permitting requirement. Yet our court decided to disregard the regulation and require the permits.

The result? The imminent decimation of what remains of the Northwest timber industry.

No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules. In contrast, in order to preserve the vitally important principle of judicial independence, we are not politically accountable. However, because of our lack of public accountability, our job is constitutionally confined to interpreting laws, not creating them out of whole cloth. Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role (as illustrated supra) when it comes to construing environmental law. When we do so, I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law.