Tuesday, March 27, 2012

Ministry of silly arguments

Andrew Koppelman

The long-awaited oral argument on the merits in the challenge to the Affordable Care Act makes depressing reading, because so many judges seem to be ready to buy such silly arguments – arguments whose silliness was pointed out on the spot, sometimes even conceded by the challengers, but which nonetheless seemed to sometimes move Chief Justice Roberts and Justices Kennedy, Scalia and Alito.  (Justice Thomas, who characteristically didn’t say a word, is a sure vote to strike down the law.)

A lot of arguments have been made against the mandate, but we can roughly group them into two broad categories, which I’ll call (1) No Limits and (2) I Am A Rock.  No Limits claims that if the mandate is permitted, there will be no limitations on federal power.  I Am A Rock claims that people have a constitutional right to some safe harbor where they and (more importantly) their money are immune from all federal regulation.

The rest of this post is on, here.

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