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06/28/2012

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Patrick S. O'Donnell

From SCOTUSblog: In opening his statement in dissent, Kennedy says: "In our view, the entire Act before us is invalid in its entirety." Unbelievable. And, for what it's worth Steve, I think your comment is completely on target.

Steve Shiffrin

Thanks Patrick.
I have to edit the stolen valor case before getting to reading the
Affordable Health Care case, but I agree that Kennedys position
is astonishing. I wonder if the arrogance of the position helped
drive Roberts to uphold the act.
Steve

Michael Duff

Counter narrative: the decision stealthily scales back decades of commerce clause jurisprudence (since it invalidated the government's reliance thereon) and by pegging the authority to tax power paves the road for undoing the law under a filibuster-proof budget reconciliation process. Still upholding the Act will have a positive impact on millions of people right now and Roberts, in my judgment, fended off an immediate constitutional "crisis" - which seems like a good day's work for a conservative. The jiu jitsu is clear but those are fights for another day.

Steve Shiffrin

Michael
Thanks for the comment. I have not read the opinion (only reports
on it), but I suspect the commerce clause limits will not be
practically important (except I wonder about congressional
commerce power to compel members of bargaining units to pay
service fees after this opinion). I do not see how the act can be
overturned as a practical matter, but there will still be plenty
to fight about.
Steve

Patrick S. O'Donnell

I think Larry Solum just made or at least implied Michael's important point about the commerce clause at his Legal Theory blog.

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