Con law, con law everywhere. Randy Barnett and Jack Balkin continued their debate over the constitutionality of the individual insurance mandate of the health care reform law. Barnett argued on Sunday that the Obama administration’s move to defend the mandate as a tax indicated its assessment that the Commerce Clause might not be sufficient, thus refuting those who dismissed the Commerce Clause challenge as frivolous. Balkin responded that it just shows government attorneys being good lawyers by piling on every argument they can think of, and that what’s really going on here is an attempt to turn back the clock on the cultural-legal shift that accompanied the New Deal. (See Josh Blackman for more on Balkin’s argument.) Barnett replies that if he’s making an “off-the-wall” argument, he’s got 21 state Attorney Generals with him, and that the truly unprecedented argument is “[t]he claim that Congress may require any person in the US to do anything it deems to be in the public interest or pay a fine or penalty to the IRS.”
That wasn’t the only New Deal flashback this week. Over on Concurring Opinions Gerard Magliocca posted two parts of a three-part series on perhaps the most significant Supreme Court case you’ve never heard of: the Gold Clause cases of 1935. The cases threatened such disruption to the economy that President Roosevelt was prepared to pull an Andrew Jackson and refuse to enforce the decision if it went the other way. Part 3 of the series was promised for today, but given that Gerard just signed off from blogging for a month it looks like there will be a delay.
Rounding out the constitutional controversies, Jack Chin has an update on Prawfsblawg on how it was that the Arizona anti-immigration law has been characterized as barring racial profiling, when in fact it expressly permits it. (The key language is “except to the extent permitted by the United States or Arizona Constitution”–it turns out it is completely legal under Supreme Court precedent to consider appearance in enforcing immigration laws.) The principal drafter of the law himself appears to be a bit confused on the matter, and that confusion reverberated through political and news commentary.
Also on Prawfsblawg, David Friedman notes that George Steinbrenner picked a good year (from a tax perspective) to pass away: unless Congress does something retroactively, there is no estate tax this year. The whole kit and kaboodle will pass tax free.
Speaking of wealth, the Conglomerate is running a quite impressive “Masters Forum” on the Dodd-Frank Wall Street Reform and Consumer Protection Act, popularly known as the financial reform bill. It’s everything you wanted to know, and then some.
Thinking of doing some legal history research on Westlaw? Be aware that, according to Eugene Volokh, the service refuses as a matter of policy to correct errors in old cases, even those that are called to its attention.
On a lighter note, Jody Madeira is collecting (and sharing) academic interview gaffes over at Prawfsblawg. And at the Faculty Lounge, John Inazu reports on the latest fissure in our society: the war between the dashes. At least one authority claims that you should not use em-dashes to set off clauses—wait, what?—only en-dashes surrounded by spaces.
He went like one that hath been stunned,
And is of sense forlorn:
A sadder and a wiser man,
He rose the morrow morn.
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