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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Friday, August 12, 2011 ::
    Been looking at the 11th Circuit's decision striking down the individual mandate portion (not other portions) of Obamacare. It's a ponderous monster, the kind of decision that wants to double as a Harvard Law Review submission, perhaps swinging for inclusion in the next edition of the con law casebooks, the ones that will come out between now and whenever the Supreme Court renders a decision.

    It explains the statute in Congressional Reseearch Service-depth, then does the same for the entire history of the Court's Commerce Clause jurisprudence. Not being dummies as to what the vote count on the Supremes will be, the 11th pays particular attention to concurrences by Justice Kennedy, even in cases, such as Comstock, where his vote was not essential to the outcome.

    Showing a sort of precision of thought for which they perhaps expect to the be -- and perhaps will be -- the toast of some sectors of the great con-law cocktail part, the panel majority scoffs at clear-cut categories and simple defintions -- not only the ones the Supreme Court itself scoffed at when it adopted the "economic/nonecononic" distinction of Lopez, but at that one too! No, to the 11th Circuit, what matters is that the decision not to buy insurance is "noneconomic," but purely and simply that for Congress to reach such an activity under the Commerce Clause is unprecedented.

    One may agree with the outcome -- I do -- and still wonder: how long before "precedented/unprecedented" becomes another of those outmoded distinctions on which Commerce Clause cases can no longer turn in this our modern age? I hope that eventually the Supreme Court will apply the "economic/noneconomic" reasoning of Lopez to this case -- on its way back to some even better, more wooden distinction, such as commerce/manufacture.

    :: David M. Wagner 10:34 PM [+] ::

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