Author Archives: Marius

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The Purchased Primary: Did Citizens United Work?

I think I speak for all Democrats when I say, I’m going to miss Rick Santorum. (Though odds are he’ll be back.) For all of John Stewart’s mockery, Rick really was an improbable candidate — as is Newt Gingrich, still. So improbable in fact, that… Well, how the Hell did it happen, anyways? The answer seems to be money. […]

heartofatlanta

For Federal Power, Does the Mechanism Matter?

If, come June, the Supreme Court decides to strike down ObamaCare’s individual mandate, they’ll accomplish something almost unique in the Court’s history, but not for the reason you think. We expect the Court to strike down unconstitutional laws; even conservatives agree with that proposition (for now). What we don’t often see is a Supreme Court willing to invalidate a […]

Presumed Constitutionality

Attorney General Holder answered the Fifth Circuit’s odd letter of concern with a statement supporting the notion of judicial review — obviously — but noting that a presumption of constitutionality attaches to acts of Congress, except in rare cases. Conservative sites spin this as surprising, and a pitch to Justice Kennedy. It’s… not. Unless laws […]

marbury-wordle

In Partial Defense of David Dow: Maybe Don’t Impeach the Five

On the Daily Beast, Professor David Dow — a brilliant man and storied advocate against the death penalty — argues that President Obama should consider impeaching Supreme Court justices, if the Court votes to invalidate the individual mandate. I respectfully disagree: for one, even if Thomas Jefferson considered the same, Jefferson was a bit of […]

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Starting from Scratch: How Would a New America Solve the Tax Problem?

The brewing battle between Senator Paul Ryan and President Obama serves as a tragic reminder of just how impossible it is in this country, at least lately, to pass a responsible plan for controlling government costs. Sometimes we are precisely nowhere. I’ve come to the conclusion that the tax dilemma — convincing people that to […]

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Lochner’s Role in Framing the Individual Mandate

The Volokh Conspiracy and Wall Street Journal both take issue with President Obama’s clarification of yesterday’s remarks, in which he makes clear that he has no issue with judicial review writ large — only with any Supreme Court decision that would review economic legislation with something less than heavy deference. The Journal: The full name […]

marbury

Make This Election About the Court

With last week’s arguments safely behind us, President Obama has taken the first steps towards spinning the case, saying: Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law what was a strong majority of a Democratically elected Congress. I’d just remind conservative commentators […]

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The People as Limiting Principle

The Volokh Conspiracy notes Justice Breyer’s aspirational nod to the last, best limiting principle in constitutional law: And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and […]

That Said, Why Did Conventional Wisdom Fail?

Let’s assume that Tuesday’s argument on the individual mandate wasn’t what any reasonable proponent should’ve expected, and that the Justice’s questions are cause for alarm. Why was every serious legal academician wrong? Two reasons. First, this is a Supreme Court that’s defied convention again and again, making them the most “activist” and conservative Court in recent memory. Neither […]

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ObamaCare: The Sky Is Not Falling

Around about 1 P.M. yesterday, the world collectively and rather seriously lost its mind. Jeff Toobin took to the air to proclaim the end of ObamaCare, the death of the modern Commerce Clause, and war and confusion generally; InTrade shares on ObamaCare’s death soared to 59%; and Lyle Denniston, who unlike Jeff Toobin has actually argued appellate […]

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