Obamacare seems constitutional. Sorry!

Mickey Kaus Columnist
Font Size:

I get as much pleasure as any Obama-bashing Democrat when I read about how the President’s self-confident, cocooned lawyers and supporters got blindsided by the constitutional challenge to Obamacare’s “individual mandate.” But do I really think, in the clear light of Sunday morning, that the mandate should be struck down? No. Here’s why. There are plenty of possible limiting principles that could constrain the government’s power to “mandate” action, if you want to come up with one. … Even if you don’t, there’s a good argument that the Court should punt the case for now. … P.S.: In retrospect, the decision of Obama’s acting Solicitor General Neal Katyal to speed up Supreme Court review  of the health care law seems insane, no? (Even, maybe, if the law is upheld.) Did Katyal underestimate the rapidity with which a conservative legal theory (formulated by Prof. Randy Barnett, among others) could move from the Volokh Conspiracy blog to the highest bench in the land? They have computers now. Call it the Feiler Faster Federalist Theory. …

Mickey Kaus