Some Thoughts from One of America’s Best Legal Minds

They showed up by email and are obviously some gentle criticism of ME:

Re the ObamaCare case:

1. Spot on - Kennedy seems to be stringing together for himself an increasingly consistent “presumption of liberty” jurisprudence. Frankly, in a lot of ways, I would consider that a relief. Consistency of any kind would be a step in the right direction.

Also spot on - it’s not at all out of the question that he will vote to uphold the mandate and simply invent his own limiting principle. But as of this moment, the uber-inside readers of tea leaves think there are 5 votes to strike it down. Everything else probably stands 6-3. I’d like to think that the lefties learned a lesson about Scalia here, but I sincerely doubt that’s true.

2. This is not activism. If the thing is unconstitutional, it’s unconstitutional. I hate to radically oversimplify, but if Congress passed a ban on free speech by a 2/3 majority, it would still be the Court’s job to strike that down. Bush v. Gore was a much more questionable case than this.

3. In the real world of constitutional law, Romney’s position is totally consistent. The Commonwealth of Massachusetts, under the Constitution has the POLICE POWERS, and can punish you if you do not buy health insurance. Those powers are not invested in the federal government. So it’s legit to say this is Constitutional at the state level, but not at the national. Of course, that’s a hopelessly finessed point which he can’t possibly make, least of all in a sound byte.

4. All bets are off on which way this cuts politically if something or everything is struck down. Many a pundit’s head will explode, starting with Linda Greenhouse. I think much depends on what Congress does in response.