Tuesday, April 17, 2012

Shorter Version of the Bounded, Minimalist Way to Uphold the ACA

Marty Lederman

There have been a bunch of Monday morning quarterbacking columns from law professors recently, suggesting various alternative ways the government supposedly ought to have argued the health-care case (with nary a recognition that perhaps there were good reasons those were roads not taken), or suggesting how the Court should decide it on the basis of very broad legal propositions. This is the one you should read: Written by an esteemed scholar sympathetic to the concerns expressed by Justice Kennedy and others about the possible ramifications of a broad holding ("troubled members of the Court should be applauded for their efforts to search for the limits to any principle advanced to uphold the health care mandate of the Affordable Care Act (ACA), not made the target of strident and caustic criticism"), it summarizes the arguments the government actually made, and explains how they provide a roadmap for a narrow holding in favor of the constitutionality of the law.

For my own, more detailed (some might say soporific) analysis to similar effect, see here.

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