June 28, 2012

FOLLOWING UP ON MY MARBURY OBSERVATION FROM THIS MORNING: Obama Wins the Battle, Roberts Wins the War: The chief justice’s canny move to uphold the Affordable Care Act while gutting the Commerce Clause. “By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well). . . . Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.” We’ll see.

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