The 27-Batter Start

I have a theory, which I have and which is mine. It goes like this: these days, when a Major League Baseball pitcher starts a baseball game, they tend to face approximately 27 opposing hitters before exiting the game. That, of course, is the number of outs in a game, and therefore the number of batters faced in a perfect game, or another game in which the pitcher "faces the minimum" over nine innings. The theory is, in other words, the idea that a starting pitcher typically has the stamina to face a number of batters that would allow for a complete game if and only if he allows exceptionally few of them to reach base. I developed this theory just from noticing, when looking over the statistics of various baseball games on MLB Gameday, that no matter whether the starter for a team in a game pitched really well, say 8 strong innings, or really poorly, allowing several runs and a bunch of hits over 4 or 5 innings, they always tended to have "batters faced" numbers right around 27.

I just did a little bit of analysis that suggests I'm sort of on to something. R.A. Dickey has made 21 starts for the Mets this year, ranging in length three complete games (for one of which I was in attendance) to a 4.1-inning blowout in the Atlanta rain in April. On average he has pitched 6.92 innings, which means he's recorded an average of 20.76 outs. The standard deviation of his "outs recorded" number for his 21 starts is 3.75, which is 18% of the average number of outs he's recorded. Now let's consider how many batters he's faced: the maximum is 33, twice, neither in a complete-game effort; the minimum is 23, also in that dreadful Atlanta start; the average is 27.33 per start; and the standard deviation is 2.85, which is 10.4% of the average. In other words, he averages approximately 27 batters faced per game, just as I suspected, and there's much less variance in how many batters he faces than in how many outs he records, just as I suspected.

Here's another way to look at it: a graph of batters faced as a function of outs recorded.

In case the text is illegible, that's the equation for the trend-line and the coefficient of determination, roughly the percentage of variance in the dependent variable explained by the independent variable. From the equation you can see that each extra out recorded on average only results in an extra half of a batter faced. From the R-squared coefficient you can see that innings pitched explains only 48% of the variance in batters faced. That's basically another way of putting my theory, that the number of batters faced in a game tends pretty strongly toward 27, in starting assignments good and bad.

Now, of course, this is only one pitcher, and perhaps an unusual one, over about two-thirds of a season. But still, I'm pleased to have a bit of empirical evidence in support of my extremely anecdotal theory.

Don't Look Now, but the 2013 Mets Might Be Good

Matt Harvey pitched his first Major League baseball game for the Mets tonight in Arizona, allowing three hits and three walks while striking out 11 in 5.1 innings of work. He was also 2-2 with a double at the plate, and since he had at least one chance in the field and didn't make any errors has a 1.000 fielding percentage. Obviously the main point is the 0.00 ERA and the 18.6 K/9 rate, and the real main point is just that his stuff looked amazing and he didn't appear remotely fazed by finding himself in the Majors. His 11 strikeouts in a Major League debut are tied for 7th-most in baseball history, and the most since the 14 from Stephen Strasburg. Perhaps you've heard of him? Anyway, Josh Edgin, another Mets rookie from the 2010 draft class, then came on in relief and pitched a perfect 5 outs of baseball.

All of this has me thinking that the 2013 New York Mets might be a pretty good baseball team. Hopefully Johan Santana will be able to pitch a full-ish season of Johan-ish baseball, with an extra year removed from his surgery. R.A. Dickey, at this point, is just reliably good, his recent slump notwithstanding. Jon Niese appears to be getting better and better. Harvey really looks like the real deal, although I'll admit it's a bit too soon to bank on that. And having options of people like Dillon Gee and Jenrry Mejia for your fifth starter's spot isn't bad. I continue to believe in Bobby Parnell as a high-quality relief pitcher, if not really someone who can be a closer (which I'm still not sold on!). Edgin looks fantastic. The infield of Wright/Tejada/Murphy/Davis should still be intact and, as none is particularly old, still getting better. (Although it's rumored the Mets are shopping Murphy; perhaps he might be replaced by Jordany Valdespin, who's been electric in his brief stint with the Mets so far.) Maybe we're not talking 1986 Mets good, not yet anyway, but it feels like it's shaping up to be a team that has a real chance of contending for the postseason from the beginning of the season. And what with the 2012 team's recent 1-and-12 skid seeming to put the ice on that team's chances of contending, I think it's time to start getting excited about next year. Because next year looks exciting.

The Un-Peaceful Society

Actually, I have one more thing to say about the recent massacre in Colorado, or more specifically the "debate" about guns that's played out in its aftermath. The right-wing's line whenever somebody gets shot is that the way to avoid gun violence is not to try and get rid of guns, but to make sure that guns are everywhere, that all the Good Guys have guns, too, and can therefore shoot the Bad Guys when they come around with their guns trying to kill people. There are lots of problems with this argument, some of which involve the idea that it doesn't work, and some of which involve the idea of this approach plunging the country gleefully into the war of all against all, in which, as a rather famous political philosopher once said, the life of man is solitary, poor, nasty, brutish, and short. I suppose my current point is related to that second basic argument, in particular riffing on the "nasty" and "brutish" parts.

Because, in this world of universal armament the conservatives envision, the life of man, or woman, is inevitably violent. There is absolutely no room for anyone to live a peaceable life in it. The message sent by that social structure to every single person living in it would be, the only thing keeping you safe from violent death is your ability to inflict violent death on those people hoping to inflict it on you. Everyone very literally has a gun to their heads, and must perforce learn to point a gun back, credibly, if they want to live. Now, I personally do not want to know how to shoot a gun. Many people may not share my tastes in that regard; some of them might even find my not wanting to know how to shoot a gun morally objectionable. Obviously, I disagree with them. But the point is, a world in which I am not given the choice to recuse myself from the world of firearms is an extremely coercive world, a world in which I am being forced against my will to learn the craft of violence and to be prepared to become a killer. A killer in self-defense, maybe, but a killer nonetheless, and I'd rather like to go through my whole life without doing that. Maybe it'll happen to work out that I can't, but I'd like to be given the opportunity to try. And in the conservative vision of guns everywhere, I'm not allowed to. I have to be ready, willing, and able to kill someone, because I have to anticipate that someone will try to kill me.

That, to my mind, would be a horrible society to live in.

Gun Control, Please!

So apparently there's been another one of these random mass shootings, this one in Colorado. I have nothing to say on the subject, except that a) it's obviously a horrible tragedy, and b) can we please, please, please stop pretending that the abject failure to have any kind of meaningful gun control didn't contribute to these people's deaths? And the deaths of scores of other people who've been killed in previous such shootings? And, having so admitted, can we please decide that the whole insane gun rights thing just isn't worth all the dying? Please?

Fire Dan Warthen

The Mets' bullpen woes are, at this point, getting ridiculous. Their bullpen this year has lost 19 games, and while I don't think bullpen wins mean a damn thing and I tend to agree with the modern critique of wins and losses I do think that relief losses are meaningful. Relief pitching is an inherently situational thing, and the only way to get a loss as a reliever is to enter a game that your team is not losing and give up enough runs that they are. That's a bad thing, it's always a bad thing, and having 19 of the team's 44 losses come from the bullpen is absurd. For most of the year the starting pitching has been outstanding, primarily on the strength of Johan Santana and R.A. Dickey, but of late even they have been enduring a rough patch. In my opinion, it's time to get rid of pitching coach Dan Warthen.

Now, it's probably not necessary to go into much detail about why Warthen should be fired; he's been there since mid-2008, during which time the results have been sadly lacking, and for the last couple of years the pitching's been suspect. But just for fun I took a slightly thorough statistical look at the Mets' bullpen under Warthen, that is, from the second half of 2008 onward (a slightly rough proxy, since he got there in mid-June, but it'll do). Over that time-span, Mets relievers have had an ERA of 4.186. The total ERA for National League relief pitchers in that same time is 3.906. Mets relievers have struck out 7.7 per 9 innings, while walking 4.1 and allowing 9.0 hits; National League relievers as a whole have struck out 8.0, walked 3.8, and allowed 8.4 hits per 9. If Mets relievers had performed at league-average levels, they would have given up 55 fewer walks, 110 fewer hits, struck out 68 more batters, and allowed 68 fewer runs including 59 fewer earned runs since Warthen joined the Mets. That's around 6 or 7 wins below average for Mets relief pitching under Dan Warthen, and that's before you account for the fact that the bullpen typically pitches in higher-leverage situations so those runs below average might be even more damaging than that. (Oddly, the Mets seem to do a bit better than the league as a whole at not giving up home runs from the bullpen, though the difference is minute.)

So, long story short, the Mets' bullpen has been lousy under Dan Warthen. There's a pattern to it, namely god-awful in 2008 (which can arguably be blamed more on the loss of closer Billy Wagner, but it's just true that the team's famous bullpen troubles that year were entirely a second-half phenomenon), good in 2009 and 2010, bad in 2011, and god-awful in 2012. I'm not sure what to make of that pattern in terms of judging Warthen, but I think that at this point it's clear that, at the very least, he's not providing any value about replacement pitching coach. There's no reason not to ditch him. They should do so at soonest convenience.

Confusion over Compulsion

In the first third of the twentieth century, the Supreme Court occasionally was inspired to state that certain acts of Congress which were undeniably exercises of its enumerated powers, like the power to tax and spend for the general welfare or the power to regulate interstate commerce, were nonetheless unconstitutional because they touched upon subject areas inappropriate for federal consideration. For instance, a tax on the interstate shipment of goods manufactured using child labor was unconstitutional, notwithstanding Congress' clear power to tax things that get shipped across state lines, because (apparently!)

regulating child labor was just something Congress wasn't supposed to do. Likewise, the Agricultural Adjustment Act was struck down in 1936 because regulating agriculture was something Congress wasn't supposed to do, and a certain bundle of taxes and spending were considered to be regulations of agriculture. This approach was, of course, pretty much abandoned after 1937 in all post-New Deal jurisprudence, and for good reason: it was silly, it was confusing, and it lacked any foundation in Constitutional text. How is one to know, looking at the text of the Constitution, which subject areas are or aren't appropriate for federal treatment? Moreover, if Congressional exercise of its enumerated powers is subject to such censorship on the basis of old-fashioned notions of propriety, the government will be perpetually unable to meet the needs of a changing world, not because it lacks the authority to do so under the Constitution, but because the needs are new and people are unaccustomed to thinking of Congress using its powers in that way. Categorical federalism, as it was called, was a mess, and was rightly abandoned.

But in the last third of the twentieth century, and continuing right through June 28th, 2012, the Court has developed a new standard by which to judge Congressional exercise of its taxing, spending, and regulatory powers against some notion of state sovereignty: the compulsion test. The basic idea is that Congress may not compel or coerce states to behave a certain way. South Dakota v. Dole, among other cases, upheld a law in part by finding that it wasn't coercion. New York v. United States struck down one provision of a law on the grounds that it was compulsion of state legislatures. Printz v. United States held that Congress couldn't conscript state law enforcement officers into the administration of federal regulations. And, a few weeks ago, the Court in National Federation of Independent Business v. Sebelius held that changing the conditions of a federal/state jointly-administered spending program could amount to coercion, if the dollar figures involved were big enough. In my opinion there's a tremendous amount of confusion in this whole area, mostly because the Court has declined to pursue one of the two clear, coherent paths of reasoning on the issue.

The Mets Are Idiots

Finally, a break from con-law! Unfortunately, it's not a particularly refreshing break. The news today is that the Mets fourth starter, Dillon Gee, has been hospitalized with numbness in his fingers, then was discovered to have a blood clot in his pitching shoulder, and then hit the disabled list. This is bad; Gee has sported a 4.10 ERA thus far this year, but as that's around his career ERA and his strikeout and walk rates have both improved dramatically this year, it looks like he's really been pitching better than that. For instance, SIERA, considered by many to be the most sophisticated peripherals-based ERA estimator, pegs Gee as a 3.53 pitcher this year. That's what we call "good." The Mets have already been dealing with one rotation spot whose designated occupant, Mike Pelfrey, is out for the year, and while Chris Young has filled it rather well so far it's a real shame to have another one. (Obviously, the more major concern goes something like "blood clot?!? Eeeep!" with the focus being on his own personal health.) The Mets' plan is apparently to use Miguel Batista as Gee's replacement; Batista has a 4.92 SIERA to go along with his 4.20 ERA this year. This will not end well, although I guess it has the upside of getting Batista away from the eighth innings of games started by R.A. Dickey, Johan Santana, or Jon Niese.

But consider that it didn't have to be this way. The Mets have, after all, a highly regarded pitching prospect who has prospered this year as a starter for their AAA team, the Buffalo Bisons. No, I don't mean Matt Harvey, although that description fits him too; he's widely regarded as not quite ready yet, and I have no way of second-guessing that judgment. I mean Jenrry Mejia, rehabbing from the Tommy John surgery that knocked out his 2011 season. Overall, in his journey from the High-A St. Lucie Mets to the AA Binghamton Mets to the AAA Bisons, Mejia made 7 starts this year, with a combined line that looks something like 35.0 IP, 26 H, 15 R, 10 ER (although admittedly the 5 unearned runs were on his throwing error), 9 BB, 23 K, 3 HR. That's a 2.57 ERA, a 5.9 K/9 rate, a 2.3 BB/9 rate, an 0.8 HR/9 rate, and a 2.55 K/BB rate. All of that is pretty damn good. His strikeout rate was lower at Buffalo, but that's largely because he appeared to be working on pitch efficiency, getting through his short-ish starting assignments with sparklingly low pitch counts and dozens of ground ball outs. Pitch efficiency, of course, is something you look for in a starting pitcher. As is the possession of multiple effective pitches, which Mejia has.

So, what did the Mets do with poor young Jenrry? They converted him to a reliever, of course! The thinking behind this was something about how the Major League team's bullpen has sucked this year, and they want help there, and people have always been tempted to think of Mejia as a reliever anyway, for some strange reason. Anyway, it hasn't gone very well. In ten relief appearances with Buffalo, Mejia's thrown 11.2 innings, allowing 11 runs, 10 earned, on 16 hits, 2 of which cleared the fence, walking 8 while striking out just 6. Those numbers make Miguel Batista look like a good pitcher. And now, of course, that they've put Jenrry in the bullpen, he's not available, not immediately anyway, to come up and start games for the Mets. Which they could use him to do. Because the alternative is Miguel Batista.

In any event, I do see Mejia as a starter down the road, so here's hoping they realize that just because the bullpen has been so awful and just because they had been having a period of relative rotation stability doesn't mean they should mismanage their players. That means stretching Mejia out to be a starter again, and then down the road when Batista's struggles have reached the point where they can't be overlooked any longer, bring him up. As things are, though, I'm having trouble not considering this a big fat error on Sandy Alderson's part.

Define "No Choice"

The lynchpin of the argument, accepted by all but two (awesome) Justices of the Supreme Court, that the Affordable Care Act's expansion of Medicaid was unconstitutional is the idea that Congress cannot "coerce" states into adopting such-and-such a policy by threatening to withhold funds. It cannot leave states "no choice" in the matter. The test implied is that very modest financial incentives are okay, but larger ones are not, or, in this case in particular, that incentives involving the removal of funds currently given to states and upon which those states currently rely are not acceptable. But this criterion does not sit well with the simple fact that this case concerned very specifically federally-imposed conditions on the spending of specific federal dollars for a specific program. Yes, states rely on Medicaid funding. What do they rely upon Medicaid funding for? Medicaid! If a state fails to comply with Congress' conditions for Medicaid programs, they lose their Medicaid funding, but they also lose their Medicaid expenses, because they lose their Medicaid program. The part of a state's budget that isn't Medicaid is left untouched. Everything the state does aside from Medicaid, that is, has not been threatened.

Now, it's true, as Justice Ginsburg's awesome partial concurrence, partial dissent (and the dissent is really the best part) points out, that state officials rendering actual judgments as to whether or not to accept the new conditions and get the new funds do not actually have much of a choice. But that's just because Medicaid is such an obviously sweet deal that voters in every single state, from Vermont to Wyoming, would throw their state elected officials out of office ASAP if they decided to opt out of Medicaid. But that's not a gun to the head! This is "not having a choice" in the same way I wouldn't have a choice if you offered me $1,000,000 on the condition that I said "thank you" afterwards. It's bloody obvious that I'll be better off, and spectacularly so, if I accept. No rational person could choose to decline. Likewise, no rational state could choose to decline to accept the Medicaid funds. But Congress is not threatening, in order to get states to run the Medicaid program the way Congress wants, to make non-complying states worse off than they would have been if Medicaid didn't exist.

Now, if the federal government routinely paid for 50% of each state's budget, by simply handing over that much money and telling the states to use it to pay for stuff, and then attached conditions saying, oh, and by the way, if you don't pass laws X, Y, and Z we'll cut your funding off, that would be coercion. Those federal dollars would have become intertwined in everything the state does, and the loss of them would present the state with only two choices: double state taxes, or halve state services. That's a gun to the head. And that's why the crucial difference between conditioning funds on meeting certain requirements about how you spend those specific dollars and conditioning funds on unrelated policy is so important. A state that decides not to comply with the new Medicaid provisions will stop having Medicaid, or perhaps it could choose to raise sufficient taxes to run a Medicaid-esque program by itself. But the simple fact that the Medicaid program is such a large portion of states' budgets, and that federal funds for it are such a large portion of state revenues, does not mean that states depend on those funds. It means Medicaid is a big, expensive program. As it happens, people like Medicaid, and will want to keep it quite a lot, even if that means accepting new conditions. But it's not something they were doing before Congress came along that Congress is now threatening to interfere with.

The Strangely Particular Ruling of Mr. Chief Justice Roberts

As I continue to read the section in Chief Justice John Roberts' opinion in NFIB v. Sebelius, I'm struck by how oddly particular it is. Here's what I mean by that: with regard to both the individual mandate and the Medicaid expansion, Roberts agrees with one of the other two opinions about the relevant constitutional principles. In the first case, he agrees with Scalia and the conservatives that mandates on inactivity are invalid, while taxes on inactivity are valid. In the second case, he agrees with Ginsburg and Sotomayor that requiring states to enact certain programs on pain of losing the federal money that would have paid for those programs is acceptable, while requiring states to enact programs on pain of losing other federal monies that currently pay for other programs is not. But he and Scalia disagree over the simple issue of whether the individual mandate can be legitimately read as a tax, and he and Ginsburg disagree over the simple issue of whether the Medicaid expansion can be legitimately understood as a modification of the old program or must be seen as a new program altogether. I would say that means we shouldn't pay much attention to the results of this ruling (I mean, they clearly matter in a short-term policy way, but in a longer-term constitutional-jurisprudence way), except that labeling distinctions like these are important. Roberts affirmed, after all, that Congress can impose financial penalties on inactivity that it doesn't like, for essentially any reason whatsoever. It seems to me that one could create the Broccoli Non-Consumption Mandate, a modest fee collected by the IRS in the normal fashion and worth a small fraction of one's income, and Roberts would be bound to say yes, this is a valid exercise of the taxing power. Likewise, the Medicaid ruling signals a greater willingness to scrutinize whether modifications of federal programs are sufficiently modest as to avoid constituting a brand new program. It's kind of a weird ruling in placing its emphasis so squarely on these naming issues, rather than on the underlying principles, but I think the appropriate response to a weird ruling like that is to pay close attention to the weirdness.

The More I Read, the Less I Like Chief Justice Roberts

Today I have finally gotten around to actually reading the opinions in National Federation of Independent Business v. Sebelius, the landmark health-care cases from a week and a half ago. So far I'm most of the way through Chief Justice Roberts' opinion, and boy is it a doozy. It starts with a very long, and very boring, civics lesson about the basic idea of "limited government of enumerated powers," and how courts aren't supposed to judge the wisdom policy, etc. etc. Then there's a treatment of the Anti-Injunction Act question, which is all perfectly boring as well, though basically right as far as I can see (basically, since the AIA and the ACA are both creations of Congress, Congress' decisions as to labeling [tax/penalty] matter, whereas they don't for the constitutional question). Then there's the discussion of the individual mandate under the Commerce Clause, and it's just awful. It's not actually true that he doesn't acknowledge the existence of the Necessary and Proper Clause argument, which I consider a slam-dunk case. He mentions the fact that it's the guaranteed-issue and community-rating provisions that necessitate the minimum-coverage provision. But then, approximately a page later, he pretends like he's forgotten about that. My favorite part was where he said that not only would upholding the mandate under the Commerce Clause lead to broccoli mandates (which is apparently the definitive test for what we know not to be true), but upholding it on Necessary and Proper grounds would do so as well. I don't know why; there's a perfectly good distinction between a health-care mandate and a broccoli mandate, which is that the former is necessary not just to make the world a better place in some vague way like making people healthier (which is how conservatives always worry the broccoli mandate will be justified) but specifically necessary to carrying into execution a particular entirely valid use of one of Congress' other powers. So, you know, not impressive.

But the thing that just made me exclaim, "wait, what?!" and that is the occasion for this blog post is the following passage:

"Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage."

Ummm...? Is the entire non-elderly population with income below 133% of the poverty level not a reasonable definition of "the neediest among us"? Okay, sure, it's a broader definition of that group than certain previous ones, and it places more emphasis on the lack of resources to meet one's needs than the presence of particular adverse circumstances, such as disability, blindness, or dependent children. But still, don't people routinely refer to people as "the neediest among us" just because they're, you know, poor? Isn't that typically sort of how the phrase is understood? New Medicaid, just by itself, is clearly doing a very bad job of being a universal health insurance program, if that's what it's trying to be. Now sure, it's true that the rest of the Act includes several other programs designed to fill in the gaps left by the non-comprehensive programs Medicare and Medicaid, and it's also true that it modifies Medicaid in such a way as to shrink those gaps. But that doesn't mean Medicaid isn't still about providing health care for poor people, as it's always been. Seriously, this paragraph is jaw-droppingly bad. To all those liberals out there who are telling pollsters that you like John Roberts, you might want to read this.

Getting the "Marbury Syllogism" Right

People sometimes refer to the "Marbury Syllogism," a particularly simple justification of judicial review in the American constitutional system. It goes something like this:

• The function of courts is to interpret the law.
• The Constitution is law.
• Therefore, the function of courts includes interpreting the Constitution.

A lot of people find this unconvincingly simplistic. It's kind of circular, anyway: how do we know that the function of courts is to interpret the law, if that task includes striking down laws passed by democratically-elected legislatures? The text of the Constitution does not give the courts this function, just to read it. Maybe the function of courts is just to interpret the laws, like courts around the world do in contracts disputes or whatever, not to go around judging those laws against the Constitution. Maybe interpreting the Constitution is up to the elected branches, and the Court oughtn't second-guess them.

Well, maybe, but I think that there's a much stronger syllogism than the conventional one that does amply justify judicial review. It goes like this:

• The function of courts is to enforce the law and apply it to particular cases.
• Legislative acts in contravention of the Constitution are not law.
• Therefore, the courts should not enforce such acts, or apply them to particular cases.

And that, in fact, is how judicial review works. In the course of considering a particular legal dispute, the Court will simply not apply a law that it believes to be unconstitutional. And this really does seem to follow from the Constitution's own declaration that it, and "the Laws of the United States which shall be made in pursuance thereof," are the Supreme Law of the Land. Implicitly, any so-called law which is made not in pursuance thereof but in violation thereof is not the supreme law of anything. It doesn't exist, because the Constitution does not permit it to exist. For a court to nonetheless enforce such a nonexistent law would be highly improper. Therefore, courts must operate on the assumption that any laws which are in fact unconstitutional do not exist, and that they ought refuse to enforce them. Doing this, of course, requires those Courts to have an idea of what the Constitution means, which requires interpreting that document. And there you have judicial review. I don't see how there are any holes in that case, if we're talking about debating whether the Constitution does in fact provide for judicial review. Of course, one could make a philosophical argument in favor of legislative supremacy, but that's a different question. Our Constitution rather plainly does not provide for Congressional supremacy. There are many things which Congress lacks the power, or more accurately the legitimate authority, to do. If Congress tries to tell people it did some of those things, it is wrong, and those people should not go along with it. It really is that simple.

No, Roberts Did Not Say the Mandate Violated the Commerce Clause

A lot of people, in describing the recent health care ruling by the Supreme Court, say things like, "Chief Justice Roberts' majority opinion ruled that the individual mandate violated the Commerce Clause, but that didn't matter because the mandate was a valid exercise of Congress' power to levy taxes." Jon Stewart said something similar in his segment on the Court's ruling, or more specifically on news coverage of that ruling. But the thing is, this isn't true. You can't "violate the Commerce Clause." The Commerce Clause is not a prohibition on anything. It's a grant of power. Now, you can fail to be within that grant of power, but that's a different thing. If it weren't, here's a partial list of things that would "violate the Commerce Clause": the issuance of federal debt, coining money, punishing counterfeiters, establishing the Post Office, creating patents, creating the lower federal courts, declaring war, creating the military, and governing the District of Columbia. Now, all of those things are constitutional, and obviously so: they're each pretty much the central application of one or more of Congress' other enumerated powers. But declarations of war, for instance, are in no conceivable way supported by the Commerce Clause itself. This doesn't matter, because that Clause is only one part of a broader grant of power to Congress. To fall outside of Congress' enumerated powers, you need to fail to be supported by all of them at once. Essentially no act of Congress is ever supported by more than a handful.

What Roberts ruled was that the individual mandate fell within Congress' enumerated powers, along with the rest of the Affordable Care Act. He also clarified that, in his opinion, the mandate was justified by the Taxing Power but not by the Commerce Clause. That doesn't mean it was "unconstitutional under the Commerce Clause, but valid under the Taxing Power," or something. As far as I know, if an act of Congress actually does violate one of the provisions of the Constitution, in a manner deserving that term, it is unconstitutional. For instance, many things might be within the meaning of the phrase, "The Congress shall have the power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes," but also be prohibited by the phrase "No Tax or Duty shall be laid on Articles exported from any State," from Article 1, Section 9. Such an Act would be valid under the Commerce Clause but invalid under the "not taxing exports from a state" Clause, which doesn't really have a name because it hasn't been very important in constitutional jurisprudence, and it would be unconstitutional and get itself struck down. But going the other way doesn't happen. If you fall outside of one of Congress' enumerated powers, but within another, you're valid. If you fall outside of any of Congress' enumerated powers, then you violate the Constitution by being unsupported by anything in that document. But you can't "violate" one part of a grant of power; it's just not what the words mean.

A minor point, but it's kept bugging me in the coverage of this whole affair.