January 31, 2011

WHITE HOUSE FLUMMOXED? “I think it’s a bit curious that the White House would send an ‘anonymous’ official to criticize the ruling of an Article III judge, and surpassingly curious that a gaggle of reporters would agree to respect the aide’s anonymity in exchange for the ‘anonymous’ quotes. Shouldn’t the reporters either tell the official to go on the record, or refuse to take part in a ‘briefing’ that amounts to simply a colorful attack on an unfavorable opinion?”

UPDATE: An analysis of the opinion here, and another one from Ilya Somin here. The judge appears to have adopted what Dave Kopel and I have elsewhere called the “non-infinity principle” — the notion that “for a Commerce Clause rationale to be acceptable under Lopez, it must not be a rationale that would allow Congress to legislate on everything.”

ANOTHER UPDATE: White House caught unprepared. And, apparently, blew the severability argument.

Much more here: “I’ve often said that I think the Washington Post is the most respectable voice of the Democratic Party, but that paper’s instant analysis of Judge Vinson’s decision, by Ezra Klein, is pathetic. Klein has no legal training, and it shows. His reaction to the decision is shrill, partisan, and unencumbered by any knowledge of the law.” You want informed legal analysis, you got to Jennifer Rubin. You want the JournoList talking points, you go to Klein. Either way, the WaPo’s got you covered.

Plus this: “There is, obviously, considerable humor value in seeing a kid who is on record as believing that the Constitution is too ‘confusing’ to be understood, since it is more than 100 years old, trying to critique the constitutional analysis of a federal judge with almost 40 years of experience as a lawyer and 27 years as a judge. But is the Washington Post really in the business of providing its readers with that sort of amusement?” Obviously, the answer is yes!

ANOTHER UPDATE: ObamaCare Hoisted On Obama’s Petard. “I had forgotten that Obama himself once upon a time took seriously the broccoli hypothetical.”