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Wednesday, May 11, 2011

The Health Care Debate and Daniel Webster

I was pleased to see the Fourth Circuit panel’s reference to the oral advocacy of Daniel Webster in yesterday’s argument regarding the constitutionality of the individual insurance mandate.  Rather timely, in light of this blog’s recent discussion of historical advocacy before the Supreme Court.  And, from my perspective, it’s always good to see a court attempt to engage historical understanding of the Constitution.

But putting aside our views of the relative merits of Webster’s advocacy, do the odds of the Supreme Court upholding the mandate increase or diminish to the extent that the Court focuses on the historical understanding of the Commerce Clause?  While some might think the answer to this question is self-evident, the Fourth Circuit discussion seems to suggest otherwise.

 

Posted by Kurt Lash on May 11, 2011 at 12:22 PM | Permalink

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Do you mean this:

" ... to the extent that the Court focuses on the historical understanding of the Commerce Clause .... "

to apply to the founding understanding or the entire history of Supreme Court decisions on the Commerce Clause, at least through the New Deal, and perhaps to date?

Posted by: Shag from Brookline | May 11, 2011 1:24:59 PM

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