Newswise — “Three days of oral arguments before the Supreme Court have left many pundits and Court watchers more or less where they have been since states and private plaintiffs brought legal challenges to the Patient Protection and Affordable Care Act in 2010: wondering what five Justices will do.
“The Court could — and in my view should — duck the Commerce Clause question by simply upholding the minimum coverage provision as a tax. It's true that there are old cases limiting the ability of Congress to regulate through taxes, but the more recent cases make clear that so long as an exaction has some revenue-generating purpose, then it is sustainable as a tax. As far as the Commerce Clause argument goes, the plaintiffs' proffered distinction between regulations of activity and inactivity should be rejected because it is a libertarian argument masquerading as a federalism argument.
“If this were a low-stakes case, I would confidently predict that the Supreme Court would uphold the law, probably by an 8-to-1 margin — with only Justice Thomas, who expressly takes a pre-New Deal view of federal power, dissenting. But Tuesday's oral argument made clear that the Court will be ideologically divided, with only Chief Justice Roberts and Justice Kennedy in play.“--Michael Dorf, constitutional law expert, former law clerk for Supreme Court Justice Anthony Kennedy and professor of law at Cornell University
RSS