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Wednesday, September 07, 2011

A Reversal of Fortune for the Individual Mandate?

About a year and a half ago, the idea of the individual mandate being struck down as unconstitutional seemed pretty far-fetched.  Noted lefty Orin Kerr put the chances at less than 1%, and even Randy Barnett was comparing such a result to Bush v. Gore -- hardly an auspicious analogy.  Now we've had an appellate court and a few district courts find the mandate unconstitutional, and it seems certain the Supreme Court will step in.  What has changed?  Here are some possibilities:

  1. The legal commentariat dramatically underestimated the strength of the constitutional problems with the legislation.
  2. The Tea Party movement and the 2010 elections created a "constitutional moment" by providing a popular rebuke of the legislation.
  3. The anti-mandate legal minds have done a masterful job in making their case to judges, the legal community, and the country.
  4. We're setting up for a Bush v. Gore II -- a partisan result based purely on politics and only thinly (and cynically) grounded in constitutional law.
  5. We're setting up for a Lochner II -- a return to the constitutional protections for freedom of contract.

These are just some possibilities.  I'd be interested in whether you agree with any of them or have theories of your own.

Posted by Matt Bodie on September 7, 2011 at 10:53 AM in Constitutional thoughts, Current Affairs | Permalink


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"6. The Court acts more and more as the Platonic Guardians by its actions that look less and less judicial and more and more simply political." The legal commentators are increasingly making their predictions on their hunches as to how a majority of the Court, with particular emphasis on Justice Kennedy, view the politics of the situation. It has little to do with "law." Ironically, maybe, the Court is simply filling a vacuum left by the implosion of the other two branches driven by the Republican decision to do everything they can to have the nation in the throes of the second dip of the Great Recession when the 2012 election comes around and the Democrats inability to overcome the fact-free ideology of the far right.

Posted by: Mike Zimmer | Sep 9, 2011 9:28:32 AM

did you just describe orin kerr as a "lefty?"

Methinks he was being sarcastic.

Posted by: Another Joe | Sep 8, 2011 11:36:12 AM

did you just describe orin kerr as a "lefty?"

Posted by: really?? | Sep 8, 2011 12:12:40 AM

The "far fetched" thing to my understanding was that the US Supreme Court would strike it down. The idea some conservative lower court like the 11th Circuit would or some district court judges among the lot? Not so much. It always seemed a good shot that the SC would "step in." The longshot would be that they would overturn the provision or the law overall. I still think this is true.

Posted by: Joe | Sep 7, 2011 8:57:19 PM

My candidate would be "6. The state of the official doctrine of enumerated powers is such a palpable disgrace as a system of coherent principles that almost any suggestion to change it can win support somewhere, briefly." The official doctrine is that Congress' powers are limited, and yet Congress can do whatever it wants, just so long as it includes some silly jurisdictional element linking whatever it is regulating, however tenuously, to interstate commerce." This doctrine is simply goofy: It neither has the simple decency to 'fess up and admit that it is just a "political question" doctrine (i.e., "Congress can do whatever it wants so far as we judges are concerned"), nor does it have the audacity to impose limits on Congress that make any functional sense. Such a betwixt and between jumble is so unsatisfying that no one should surprised when lower courts feel their oats by carving out a new limit on judicial deference.

Posted by: Rick Hills | Sep 7, 2011 8:10:11 PM

How about
6. The pro-mandate legal minds have done a less than masterful job in making their case to judges, the legal community, and the country.

Posted by: Heynonynonymouse | Sep 7, 2011 4:54:55 PM

Maybe a combination of 2 and 3, although some of the district court rulings came before the 2010 midterms. You are assuming, of course, that SCOTUS is going to strike the mandate down, something I don't believe is going to happen. This is lower courts getting way out ahead on something that I just don't believe the majority of the Court will follow.

Posted by: Howard Wasserman | Sep 7, 2011 2:05:10 PM

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