More Not Buying It

Another TPM Reader, LD, isn’t buying the idea that Roberts’ decision was some sort of double secret jujitsu chop on the welfare state …

I practice constitutional law and a commerce clause geek, and I have to agree with your reader who says the liberal commentators are hyperventilating over the prospect that Congressional power over economic regulation will seriously be hobbled by Robert’s opinion.

In Marbury, Chief Justice Marshall did cleverly deliver a short term “win” for his political enemies while securing a broader principle those political enemies loathed and that was for more important to Marshall. But the victory his opponents received was decidely small bore, whereas, here, the ACA is the type of major legislation that the Court rarely passes on. (Most recent commerce clause disputes have been over small-ball Dick Morris/Bill Clinton-like misadventures like the Drug Free School Zone Act or restrictions on medical marijuana). I do agree that Roberts may be preserving conservative political capital for numerous other hot button issues. In short, I think Roberts may have realized that by avoiding committing a felony against the Court’s standing today, he can commit 100 misdemeanors in the next 20 years, probably a good tradeoff from his point of view.)