Mulligan v. Maryland: Here’s a way for the Supreme Court to punt on its big Obamacare decision, until after the election at least: Reargument! Give the stunned liberal legal intelligentsia time to regroup. Send Solicitor General Verrilli to the showers and bring on someone better. Hypothetical exchange:
JUSTICE KENNEDY: Can you create commerce in order to regulate it?
OBAMA RELIEF PITCHER: Yes, you can. Congress created that national market, affirmed it, when it passed the Emergency Medical Treatment and Active Labor Act [EMTALA] establishing the principle that hospitals must treat all emergencies no questions asked. Every emergency, every person. Not only those who act to buy insurance. There are only so many goods–less than a handful really–that are so essential to our common, individualized humanity that the people’s elected representatives will take that step. So it’s an inherently limited category.
Powerline: “[S]tranger things have happened. It is generally forgotten today that Brown v. Board of Education was reargued too.”