Monday, June 25th, 2012
54

Are You Smarter Than a Legal Rockstar? Obamacare at the Supreme Court

"Perhaps," Ezra Klein wrote last week, "the Supreme Court will surprise us on this one"—meaning the Court might not overturn the part of the Affordable Care Act that would require nearly all Americans to maintain at least some amount of healthcare insurance. "But if they don’t, I think the right question will be why so few in the legal academy saw it coming."

The list of constitutional law scholars who have stated publicly that the individual mandate is constitutional includes some of the most famous legal minds in the nation. Laurence Tribe. Kathleen Sullivan. Ronald Dworkin. Lawrence Lessig. Mark Tushnet. Eugene Volokh. These are con law's rockstars, who regularly dominate the lists of most-cited authorities. All believed the individual mandate to be a perfectly acceptable use of Congress's power to regulate the economy or levy taxes. The possibility that they might be wrong sent a couple of them into a tizzy. “I’ve only mispredicted one big Supreme Court case in the last 20 years," said Akhil Amar, another rockstar, told Klein. “That was Bush v. Gore… If they decide this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.”

It's not really as dramatic as all that. The case—officially Florida v. United States Department of Health and Human Services—will likely be quite closely decided for two reasons that have nothing to do with politics or money or party loyalty. The first reason is a philosophical one: this case pits two very old and fundamental constitutional values against each other in a way that we haven't quite seen before. The second reason stems from the current composition of the Court, which has four conservative to conservative activist judges, four liberal to fairly liberal judges, and Justice Anthony Kennedy. It has never been clear where something like Obamacare fits with Kennedy's view of the Constitution. And that loops back around to the first reason, so let's start there.

At the end of the Revolution, each American colony became, essentially, its own sovereign nation. Like any group of sovereign nations, they had some troubles getting along, especially when it came to trade. Some states tried to impose tariffs on products made in other states, and those states responded with their own protectionist policies. It was kind of a mess. Believing that free trade would ultimately be a better approach, the states entered into a union. They tried this twice; the first time didn't take.

The Constitution, which came out of the second attempt, is largely a multiparty economic treaty. The America of 1789 has much in common with the Eurozone of 2012. In both, sovereign nations gave up their right to individual currencies in favor of a "multinational" one, and they agreed to drop all interstate tariffs and other forms of protectionism. Unlike the Eurozone, however, the American Constitution created a central regulatory agency: the federal Congress. In order to make sure Congress could do its job, the states had to grant it certain powers.

The powers of Congress, listed in Article I of the Constitution, are referred to as "enumerated powers," meaning that Congress can only do the things specifically listed. (The list includes the so-called "commerce clause," which gives Congress the power to regulate commerce "among" the states.) This limitation was by design. The states were concerned that the new government might try to assert itself outside of the agreed-upon boundaries. It was a sentiment reflected by the Tenth Amendment, added not long after the Constitution was ratified, which says that any powers not delegated to Congress were "reserved to the States respectively, or to the people." Among the powers the states had in mind were these things called the "police powers."

The police powers include basically everything that a state government can force an individual to do. Forcing someone to pay income taxes is one such power (and a power not granted to the federal government until 1913). Regulating for the public health (like quarantines), safety (helmet laws, zoning) and morals (blue laws, curfews, banning foie gras and/or Big Gulps) is another. The states didn't want the federal government pushing their locals around. Pushing locals around is the state's job.

These two values are put into direct conflict by the individual mandate provisions of the Affordable Care Act. On one hand, healthcare costs would decrease if everyone in the United States had health insurance, so coercing people to buy health insurance is a way to regulate the economy, and Congress has the power to regulate the economy. On the other hand, this form of coercion is a police power, and it's not a police power specifically enumerated in the list of those granted to Congress.

Conservatives lined up behind the latter value. If Congress can coerce an individual to do something, and exercise a power apparently owned by the states, and they can do so in the name of regulating commerce, then what can't it do? How far can the definition of Congress' enumerated powers be stretched? As Justice Scalia asked during oral arguments: if Congress can force you to buy health insurance, can they also force you to buy broccoli? The question I like to ask is: what if Congress forced you to buy a gun?

Where Kennedy stands on all this is something of a mystery. Even his own former law clerks can't seem to agree. About as close as you can get to insight into the way Kennedy might rule is his concurring opinion in US v. Lopez, in 1995. In that case, the Supreme Court struck down a federal law as being outside the scope of Congress's powers under the commerce clause. He wrote: "were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory." You can read that to be in favor of the individual mandate—or against it.

People really seemed to think Kennedy would be pro-mandate, at least until oral arguments, when he levied a series of tough and highly skeptical questions at the Solicitor General arguing the case. But even then, closer inspection revealed some doubt. Nobody knows for sure which direction Justice Kennedy, who is presumably the fulcrum on which this case balances, will tip the scale.

Back to Ezra Klein's question. For a case that is close on both objective and subjective grounds, why are the top legal scholars in the country so certain the law at issue is constitutional? At heart, it's probably wishful thinking. They argued what they believed the law should be. That, ultimately, is a responsibility of everyone in the legal profession; advocacy lies at the heart of the job. When faced with that kind of uncertainty, the best you can do is say what you think the law should be. Justice Kennedy actually does the same thing when he rules on a case. The difference is, when Justice Kennedy comes to believe what the law on mandatory insurance should be, that is what the law is.


Eric Spiegelman went to law school.

54 Comments / Post A Comment

deepomega (#1,720)

This is great stuff. I'd also say that I feel like we're confronting this enlightenment idea that interpreting the law has a "right answer" just like interpreting laws of physics or something. Obviously every judge has a political bent, and always has, and it creeps into all their judgements – there is no Supreme who hasn't sacrificed one of his core values for a case they had strong ideological opinions on. But everyone pretends this is a failure of the SC, or that picking judges ideologically is a corruption of the nature of justice.

Dave Bry (#422)

That was really good and I feel like I learned a lot and am now embarrassed about that post two posts ago about pouring salad dressing on one's chest. Seriously, though: Thanks for writing that, Eric.

deepomega (#1,720)

@Dave Bry No, seriously, it's an important part of my chest beauty regimen.

jfruh (#713)

Here's the thing about all that 1789 stuff, which is that on the one hand: yes! But, in a larger sense: no! Which is to say in slightly more detail: obviously that is a 100 percent accurate description of the state of the US in 1789, but interpreting the constitution as if it were still 1789 seems obviously absurd, because we live in an actual single country in practice, not 50 independent ones. And there have been hundreds of tiny ways in which the country has ceased to be that way, so it seems absurd to suddenly fall back on it just because you're opposed to any and all attempts at a national health policy. I mean, how are Social Security and Medicare constitutional, if health care isn't interstate commerce?

deepomega (#1,720)

@jfruh They aren't! Neither is the War on Drugs. And what's interesting is Scalia's biography explicitly admits this – he says, basically, "I was wrong to ever say the Federal Gov't could regulate the shit it pulls under the commerce clause."

Eric Spiegelman (#3,968)

@jfruh Because the Constitution grants Congress the power to spend money anyway it wants (that's Medicare). Single payer healthcare would be entirely constitutional. And social security was upheld as a tax. The individual mandate is neither of these things.

jfruh (#713)

@Eric Spiegelman But since the only consequence for violating the individual mandate rule is paying a tax, doesn't that fall under the taxing power?

deepomega (#1,720)

@jfruh For political reasons, the administration (and the writers of the bill) have claimed it's NOT a tax, it's a fee. Which means it's a regulation, instead of a tax. (This is all, of course, stupid. The difference between a tax and a fee is just one of intent – which means whoever creates a new one can just lie about whether they want money or want to change behavior.)

The other thing is that the precedents that do support a really wide interpretation of the Commerce Clause are pretty much laughable. They're just nonsense and done under the threat of FDR's court packing move. They're on the books, but they're really not that convincing to quote from.

Lucky Jim (#207,189)

@Brooklyn Battery Well, save for that tricky stare decisis thing.

Scum (#1,847)

@Lucky Jim For anyone not up with legal lingo Stare decisis is a latin phrase which means yeah the precedent is garbage but its garbage I like so go fuck yourself.

Anonymoose (#235,202)

@Brooklyn Battery So you think that the underpinnings of the Civil Rights Act are laughable? Good to meet you, Senator Paul.

Tom Scocca@twitter (#10,955)

Yeah, no, the rock stars weren't saying it was constitutional because they were wishful or dumb. They were considering a couple of centuries' worth of lawmaking and court decisions, under which the individual mandate easily fit the settled commerce-clause powers. If this case breaks the other way, it's all politics–or politics refracted through the personal vanity of Anthony Kennedy, who is perpetually unable to quite decide which cafeteria table is cooler to sit at. I'm guessing he'll join a 5-4 vote to strike the mandate, and then he'll be part of a 6-3 vote to uphold the regulatory provisions (which are useless without the mandate), with Roberts joining both majorities so as to flatter Kennedy on his open-minded judiciousness. A Solomonic decision, if King Solomon had actually cut the baby in half.

Lucky Jim (#207,189)

@Tom Scocca@twitter I agree w/ 75% of this. It's a quite-bad misreading of the "rock stars" and it's an inexact and incomplete analysis that wholly ignores the (should be) settled CC law. That said, my agreement tracks only up until the prediction – which I think will surprise folks. I'm thinking Kennedy either identifies health care as sui generis, and thus carves a narrow permissibility or they re-construe the mandate as a tax and go from there. I'm not generally a pie-eyed optimist, and I know this runs counter current predictive trends…

BoHan (#29)

@Tom Scocca@twitter The rock stars are doing nothing different than what all of us were taught in law school. That is, if you want to pass the Con Law exam, you will never argue Congress has no right to act under the Commerce Clause. Also, what you said.

barnhouse (#1,326)

@Tom Scocca@twitter YEAH the whole point of continuing to hear new cases being that it is necessary to refine the existing edifice just one tiny tiny bit at a time, not take a sledgehammer to the damn thing.

Lockheed Ventura (#5,536)

@barnhouse But there is no sledge hammer here. The SC is not striking down the EPA or Social Security. They are likely striking down one provision of a law that has largely not been enacted yet. The Court is taking a stand that there are limitations to the powers of the Federal government and that the Commerce Clause has an actual meaning as opposed to a cover to simply do whatever the fuck you want. Congress took the easy way out when writing this law, and now they are paying the price.

barnhouse (#1,326)

@Lockheed Ventura We'll see. It won't end with this decision, whatever it is; that much is certain.

you'd think that great legal minds would know that a gun is not broccoli and broccoli is not healthcare. that Originalism bent of Scalia's seems to create the very slippery slopes he fears. seems like a position guaranteed to limit progress and well-being.

skahammer (#587)

At heart, it's probably wishful thinking….That, ultimately, is a responsibility of everyone in the legal profession; advocacy lies at the heart of the job.

Think of what a tremendously interesting paragraph this is.

the fridge (#217,591)

I'm glad the Awl is addressing the health care case, but this piece is not very good.

First, and most importantly, Article 1, Section 8 of the Constitution has always given Congress the power to tax (yes, even income taxes). (The 16th Amendment was only necessary to remove the requirement that income taxes be apportioned – i.e., that each state receive its pro rata share of income tax receipts.)

Nor is there any conflict between Congress' power to tax and the commerce clause. Either clause could provide sufficient authority for Congress to enact the health care law. (Even if Congress can't force people to buy health insurance under the commerce clause, it could increase tax rates and give people a credit on their taxes if they obtained health insurance – this would have the same effect as the current health care law, and would be a constitutional use of the tax power (at least, under current Supreme Court precedent)). Thus, opponents of the law are arguing that it is neither a tax nor within the scope of the commerce clause, while proponents of the law have advanced various arguments under both theories.

Instead, the conflict (at least in the prevailing conventional wisdom) is between Congress' limited power under the commerce clause and problems created by a failure to engage in commerce – in short, can Congress attempt to solve the free-rider problem in the health care market by requiring the obtaining of insurance by individuals? Up to now, the Court has generally held that there is almost no limit to Congress' power under the commerce clause, which is why so many con law professors are confused. And because this conflict broadly reflects an underlying tension between that peculiarly American brand of don't-tread-on-me individualism and the collectivism of Patrick Henry's “united we stand, divided we fall”, a tension that has existed as long as these United States and remains strong today, it has not surprisingly stoked emotions on both sides.

That said, it is likely that the resolution of that tension will be central to the Court's opinion, and also extremely likely that the case will be decided for reasons that have everything to do with party politics, party loyalty, and yes, money. After all, no one should forget that the reason there are “four conservative to conservative activist judges, four liberal to fairly liberal judges, and Justice Anthony Kennedy,” is because they are all political appointees.

Anonymoose (#235,202)

@the fridge It'd be nice if the "liberal" appointees were actually liberal, too. None of them is anything more than center-left, and not a one comes close to Brennan or Douglas or Marshall when it comes to actually being liberal.

skahammer (#587)

@Scott Brown@twitter Easy, easy. Brennan and Marshall, I'll give you, but let's not go comparing mere mortals to Justice Douglas.

the fridge (#217,591)

@skahammer I agree. But they are a great reflection of the party that appointed them.

Lockheed Ventura (#5,536)

@the fridge Even Scalia would agree with you that the Federal Government could impose a 5% Health Care Income Tax to fund health care. That is not what Congress did though. Congress purposely did not go through the well worn path of taxation and instead invented a mandate requirement, introducing a government power into the commerce clause along the lines exercised under the Selective Service Act. It is unprecedented.

the fridge (#217,591)

@Lockheed Ventura If the individual mandate is not a tax, then why did Congress include the mandate in the Internal Revenue Code and make it enforceable only through a penalty to be paid as part of an individual's annual income tax return?

Lockheed Ventura (#5,536)

@the fridge I suggest you ask the Obama Administration the same question. Apparently their argument before the Court, that the mandate is a tax, except when it isn't a tax, was not exactly convincing.

The lower court judges found that the individual mandate was not a tax. If the mandate was a tax then it's constitutionality could not even be reviewed until it was actually enacted! The Obama Administration agreed with this determination, but then turned around and argued that it was a tax for the purposes of determining constitutionality. Except that both the President and the Congressional Record were emphatic that the mandate was not a "tax", but instead the tax code was used an penalty enforcement mechanism. Should the Court simply ignore what Congress says the law is supposed to be? Of course not.

On an even more basic level, what is a tax? I would say a tax is when a citizen pays monies to a government agency. Requiring citizens to pay money to Blue Cross Blue Shield is clearly not a tax under the most basic meaning of the word.

Anonymoose (#235,202)

@Lockheed Ventura Actually, several lower courts ruled that it was a tax.

As is, you're arguing that something that would be legal if we used one name for it is unconstitutional so long as we use another name, even though in fact it works in exactly the same manner either way.

And also, the court regularly ignores what Congress states something to be, so that's not exactly a persuasive argument. Heck, Scalia loathes using legislative history to determine congressional intent, so you'd think if he had any fucking brains left in that syphilitic walking corpse he calls a body that he'd know exactly how this should go down given his past vote in Raich.

Sean Lai (#14,158)

Yeah, agreed with others above – I appreciate Eric's attempt to be fair to the conservative Justices, but the truth is that precedent points toward Congress having this power, and our system is built on precedent. Explicitly. It's a common law system, unlike France, or Germany, or Spain.

For better or worse, our nation experienced a major rewrite of the Constitution following the Civil War, and then had a major shift in Constitutional interpretation around the time of the Great Depression. The con law professors cited here are just doing what an ordinary judge or lawyer would do and are analyzing the statute based on decades of case law.

It's not totally open and shut – there's US v Lopez, after all – but the deck is stacked much more in one direction than Eric is letting on here.

Anonymoose (#235,202)

@Sean Lai Except there's also Raich v. Gonzalez, where all the conservative justices voted to uphold the exact same idea underpinning Wickard v. Filburn- something the author might have realized if they'd actually paid attention in law school.

Sean Lai (#14,158)

@Scott Brown@twitter Yes, exactly – I might have been unclear, but that's what' I'm getting at. The settled law points toward an expansive reading of the Commerce Clause.

skahammer (#587)

@Sean Lai @Scott Brown: You're both betting on PPACA being upheld? That's a gutsy call in the present environment.

A more pragmatic observer might note that various portions of the "settled law" point in all sorts of directions, and the outcome of this case is actually fairly unpredictable. However, my own nickel is on an overturning of the mandate. So each of us has an opportunity to be either right or wrong, quite soon.

Sean Lai (#14,158)

@skahammer No, my post is based on there being an at least somewhat meaningful dichotomy between law and politics, while admitting the influence of both in high policy SCOTUS decisions, and asserts that this decision will end up being more politics than law. If you take a hard positivist stance and say that whatever SCOTUS determines, is the law, then OK, but it's kind of a tangent to what we were talking about I think.

Anonymoose (#235,202)

@skahammer I have no clue how it'd come down. If the Court actually worked the way that it's supposed to, it'd be upheld in full. As is, I have no clue how fucked we're going to get.

skahammer (#587)

@Scott Brown@twitter I presume you're saving all your first-rate analysis for the day when the Supreme Court comes to you to ask how it's really supposed to work.

Anonymoose (#235,202)

@skahammer Just like all the actual appointees to the court! But you can't be seriously arguing that this is at all a difficult case from the actual legal precedents at issue. I'm not exactly going out on a limb saying that this should be a pretty easy case, and it's not because of how political the court is, and especially because of Robert's habit of undercutting past precedent (see, e.g. Seattle Schools) while pretending that he isn't.

Anonymoose (#235,202)

This article is shit, it shows an extremely weak grasp of commerce clause jurisprudence and a total misunderstanding of the tax power* that would lead to a poor grade in 1L conlaw. This is like reading Gawkers long form idiot brother.

At the same time, it's very useful to show WHY the Roberts clique will get away with destroying yet another long accepted precedent that modern Republicanism hates. Because no one writing about it has any fucking clue about how deep the precedents actually run and what they underpin, and fuck those experts because what do they know and hey isn't it awesome that I can write headlines like "are you smarter than a legal rock star?"

Seriously. Go play with yourself in private. This is unseemly.

* The US had several income taxes prior to the passage of the amendment referenced. Because when you read the constitution, it gives Congress the tax power.

King Canute (#186,813)

"The question I like to ask is: what if Congress forced you to buy a gun?"

You mean… like if Congress passed the Second Militia Act of 1792, which required all free able-bodied white male citizens to buy muskets?

Daniel.CLS (#12,167)

Yeah… that's not the argument the constellation of experts were making for why the ACA is constitutional. Here's an example: http://www.tnr.com/article/politics/102685/conservative-defense-obamacare-affordable-care-health

skahammer (#587)

Let's agree at least that Mr. Spiegelman's post does usefully address an important issue: Why the outcome of the PPACA case is unpredictable, and why the possible analyses might have even experts confused.

And maybe we can further agree that this unpredictability remains in effect regardless of other views expressed here — many of which have the law being easily and predictably upheld according to the apparently politics-free authority of internet comments. Persuasive authority, I assume.

the fridge (#217,591)

@skahammer I don't agree. Spiegelman misreads the relevant portions of the Constitution, fails to explain why the history of the Court's commerce clause jurisprudence would lead con law professors to believe the law should be upheld, misidentifies the constitutional values that are in conflict, and flat out denies that the decision will be influenced by politics.

I mean, if the point is that no one can predict the future, why bother writing this article?

As an aside, I'm waiting to see if Spiegelman or the Awl will address the various factual errors in his piece. It is interesting that Spiegelman took part in the comments yesterday, but has not commented since.

skahammer (#587)

@the fridge I can't challenge your points here.

My only response is that this isn't a law blog, and I think for a general audience there's considerable value in highlighting the question: Is this a hard case, or isn't it, and why? In this context, outlining possible analyses is valuable, even if they're flawed.

Maybe we could agree that there's a *LOT* of commentary out there, on both sides, offering the impression that this case is a cinch to decide. Even 1L-Con-Law easy. I've never thought that was true, and I'm sympathetic to almost anyone gutsy enough to publicly adopt the tiny-minority position that this is actually a difficult case — hard to predict, not easily answered by obvious points of "settled law," and incidentally smart people on several sides of the debate are going to wind up being wrong about it. So don't forget to mark your scorecards.

That's a phenomenon unusual enough to remark on, I think. Predicting the future isn't the only reason to write an article like this. In fact, I would argue that finding a rational approach to true uncertainty is often a more interesting and challenging assignment.

Let me reiterate once more that my nickel is on an overturning of the mandate. I'm willing to risk being wrong about this.

the fridge (#217,591)

@skahammer Fair enough. An article that explained why this case is difficult (whatever that means) or, in Spiegelman's words "so close", compared to other Supreme Court cases involving interpretation of the Constitution would of course be valuable. But the article doesn't do that (why is this case "so close"? because its likely to be 5-4? because there are arguments on both sides?), and since he fails to competently explain the arguments on either side he does everyone a disservice. The Awl can, and should, do better.

For what its worth, I also think that at least the individual mandate is going to be overturned. I hope I'm wrong.

skahammer (#587)

@the fridge I'm mostly freelancing here rather than amplifying Mr. Spiegelman, but I think the reason this case is difficult — and especially confounding to legal experts (as well as to anyone who thinks the pro-mandate position is a slam dunk) — is because I think the Supreme Court analysis is going to try to balance Congress' Commerce Clause power against "individual liberty." And after reading the arguments advanced here and elsewhere by the "Yes, the mandate is obviously constitutional" crowd, I think an analytical emphasis on personal liberty is going to catch a lot of people by surprise.

This is total speculation on my part, of course; I can't cite a case where the Court has done this balancing before. (Lopez? I'd have to re-read, but my recollection is that the source of the limit there was the Second Amendment, not "liberty" per se.) But I do think the mandate is a somewhat unprecedented burden on this Court's construction of personal liberty, and for that reason I think a novel analysis might result. This is why I'm unimpressed by appeals to "settled law"; I think people who refer to settled law might be referring to parts of the law which aren't precisely on point, in the minds of a Court majority.

I just think the Supreme Court sees itself as having a special role in protecting individual liberty. That's basically why I think the mandate will earn the opposition of five Justices. I note that this isn't really a case-supported legal argument — but I do think this is sometimes how decisions are made in practice. The citations can come later.

Dave Bry (#422)

@the fridge I can't speak for Eric, but I know that when I'm engaging in discussion in the comments section, when people start writing in with a first sentence like, "This article is shit," it dampens the enjoyment of the exercise. (I know you did not write that sentence, Fridge.) It's like, "Oh, thanks. Nice to meet you, too!" These conversations can be interesting and enlightening, without turning into a look-how-big-my-brain-and/or-penis-is competition. There's no need to be rude.

the fridge (#217,591)

@Dave Bry I'm sympathetic to your point, Dave – it is certainly possible to make a strong critique using civil language, and as you can tell from my comments, that is my preference.

But realistically, for every piece published on the Internet, there is a very high chance that people will leave comments like the one you quoted. Particularly when that piece is about a topic as timely and controversial as the health care act. I have no problem if an author doesn't want to engage with trolls or assholes, but failing to engage with good-faith, civil critiques is, for lack of a better word, weak.

Or should I stop expecting Awl writers to defend their positions in the comment threads?

Anonymoose (#235,202)

@Dave Bry Perhaps I should have merely written that the article is gormless, or lacks even a 1L level understanding of constitutional law, or misinforms it's readers, instead. But the fact remains that it's shit and evidences little actual understanding of the topic at issue.

This isn't about dickwaving, I'm happy to admit that I'm wrong quite often even on issues that I have reasonable command of, and that my dick is a micropenis. My kvetching is about someone writing an article that's got no clothes on which at the same time is slagging people who know more than either I or the author about the topic. It's about the snide disregard for the people who actually are experts on a topic, and how that disregard results in misinformation being passed on while at the same time diminishing the ability for it to be countered. He could have written the exact same article about why anti-vaccination drips have a point, and been just as wrong.

Anonymoose (#235,202)

@skahammer Lopez, IIRC was more the distance from actual commerce and the intrusion of that particular part of VAWA on the state police powers than anything having to do with the 2nd amendment, and that Congress making a finding about the nexus of commerce to the legislation wasn't enough. But I don't recall it perfectly.

My big gripe is one that might not end up in the final decision, that there's anything meaningful about the activity/inactivity distinction. There simply isn't, in this case, any avoiding the health care market in some form, given that being fully absent from using it still impacts the health insurance market. Inactivity still has an impact upon the market, which under Wickard and Raich matters even if there's limited to no immediate contact to interstate markets. It's not complicated, and is far more grounded in both past decisions and the text of the constitution than the challenging argument about personal liberty- an argument that falls apart given that we have at least one 18th century law created by the founders with a mandate, which voids the "Founders would never have accepted a mandate" argument. Even for Thomas that should be a strong argument for constitutionality.

Lucky Jim (#207,189)

I don't want to say I told you so, but "dick, waved."

the fridge (#217,591)

@Lucky Jim I think that also makes you smarter than Justice Kennedy.

adiktao (#236,903)

Well, I dont know much about this stuff.

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