November 16, 2011

PETER SUDERMAN: Is Partisanship Responsible for the Success of Constitutional Challenges to ObamaCare?

When the Obama administration formally requested that the Supreme Court hear the case in 2012, I predicted that if any part of the law is struck down, the Obama administration will blame the loss on excessive judicial partisanship. Chemerinsky appears to be doing some of the advance work for this potential talking point.

Hopefully it’s on a strictly volunteer basis, though, because his confidence in the mandate’s obvious legality isn’t very convincing. It’s not just that several judges have already ruled against the mandate; it’s that the mandate raises constitutional questions that don’t have obvious answers—and that the Supreme Court has never clearly decided.

Claims that the Second Amendment protected an individual right were met with the same substanceless condescension — until the Supreme Court ruled. And Chemerinsky’s volunteering, but probably in the hopes of a Supreme Court appointment.

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