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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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    :: Monday, April 02, 2012 ::
    Oh that judicial activism...!

    Actually, as Virginia AG Ken Cuccinelli points out in his e-letter "Cuccinelli Compass" today, upholding Obamacare would effectively overrule Marbury: it would require such extreme deference to congressional judgment as to what "commerce" is, what "substantially affects" it, etc., that the Court could no longer assert with a straight face that it exercises independent judgment on the constitutionality of the statutes Congress enacts, which Marbury affirmed it must do.

    The statute may be widely nicknamed Obamacare (a nickname recently embraced by the President himself, because, don't you know, "Obama cares"), but Congress, much more than the executive branch, would be the winner, according to Cuccinelli's provocative analysis. (Perhaps the act should be called Congresscare, or, more accurately, LameDuckDemocratCongress AboutToLosePowerCare.)

    All who think a majority of the Court -- a Court not significantly different from the one that decided e.g. City of Boerne and Boumedienne (both Kennedy opinions for the Court, striking down federal statutes) -- will line up to throw away its powers before an almighty Congress, line up here. Thought so.

    :: David M. Wagner 7:07 PM [+] ::

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