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Federalism as a Pretext

» Bottom Up: On the Constitutionality of ObamaCare

Interesting post by Tim Lee on the individual mandate. It's a qualified defense of it, with the use of the tax code being the point of comparison. This part of his take obviously caught my attention.

The test case for conservative seriousness about federalism was Raich v. Gonzales, the medical marijuana case. Justices Scalia and Kennedy flubbed that opportunity, ruling that a woman growing a plant in her backyard was engaging in interstate commerce and that this activity could therefore be regulated by the federal government. If Scalia and Kennedy now vote with the majority to strike down portions of ObamaCare, it will be pretty obvious that they regard federalism as little more than a flimsy pretext for invalidating statutes they don’t like. Or, worse, for giving a president they don’t like a black eye.

I fully expect Scalia, in particular, to have absolutely zero qualms about the unconstitutionality of the individual mandate. And intellectual consistency won't matter. It's a far more political court now than we've ever had in my lifetime. So Lee's conclusion is pretty prescient.

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