Best of the Blogs: Aftermath of the Supreme Court’s Ruling on the Affordable Care Act

The Supreme Court’s decision upholding the constitutionality of the Affordable Care Act has generated a great deal of “instant analysis” on the web.  This post will survey some of the noteworthy commentary.

I have not read anything that has caused me to re-evaluate my initial reaction to the decision.  I thought that neither Justice Robert’s Commerce Clause analysis nor his Taxing Power analysis was particularly compelling, yet I was struck by the manner in which the Chief Justice managed to construct a 5-4 majority that paralleled Marbury v. Madison insofar as the ruling chastized a sitting President with its rhetoric while simultaneously handing the President a major policy victory.  Upon further reflection, I still believe that future Supreme Court justices will find it quite easy to evade the boundaries that the language of the NFIB v. Sebelius decision purports to place on federal government power.  All it will take is a change in one vote for a future Court to designate the opinion’s Commerce Clause analysis as “dicta,” or else to find the requisite level of coercion lacking the next time that Congress’ deploys its Spending Power in a similar fashion.  While the rhetoric of the opinion promises doctrinal limits on federal power, the actual holdings of the decision fail to deliver on that promise.

John Yoo has come to the same conclusion.  In an op ed piece in the Wall Street Journal he considers the spin that some political conservatives have placed on the Court’s ruling — that it was a victory for the advocates of limited governent — and finds these assertions to be no more than a “hollow hope.”  He rejects the comparison to Marbury v. Madison, and instead compares the opinion of Justice Roberts to the “switch in time” that led the Supreme Court to uphold New Deal Era legislation during the Franklin Roosevelt Administration.  By frustrating the Supreme Court’s best chance since the 1930s to reverse what Yoo views as an anti-originalist acceptance of broad legislative power, Justice Roberts has let Professor Yoo down.

Continue ReadingBest of the Blogs: Aftermath of the Supreme Court’s Ruling on the Affordable Care Act

Never Been This Bad?

Independence Day was a hot one this year. Amid the celebrations and the record high temperatures, I thought about the framers of our constitution, who, in 1787, dealt with similarly oppressive heat. July 4, 1776, witnessed the founding of our nation, while July 4, 1787, passed as the document that would found our government was created. These thoughts about beginnings got me to thinking about all the recent talk of endings among the chattering classes and the punditocracy.

Depending on the day — or the issue being discussed — our liberty, our democracy, or our very country faces imminent demise. If candidate X doesn’t win in November, America is doomed. Unless this law is/is not passed, our very way of life is threatened. Sometimes, we receive reports, rather than warnings. Recently, Scott Walker’s recall victory killed our democracy, and the ACA being upheld killed our liberty. June was a tough month for America. Things have never been this bad.

On the other hand, maybe they have been.  

Continue ReadingNever Been This Bad?

New Poll Results: Thompson Leads in US Senate Race

Former Gov. Tommy Thompson leads three other candidates in the race for the Republican nomination for the US Senate seat open in Wisconsin this year, according to results of the Marquette Law School Poll released on Wednesday. Thompson also drew more support than Democratic candidate Tammy Baldwin in a head-to-head trail heat.

But a quarter of people who said they plan to vote in the Aug. 14 Republican primary said they were undecided or didn’t know whom they would support, indicating that there is potential for substantial change before the election.

Among people who said they intended to vote in the Republican primary, 34% said they backed Thompson, with 16% supporting former Congressman Mark Neumann, 14% for Madison businessman Eric Hovde, and 10% for Assembly Speaker Jeff Fitzgerald.

In a Thompson-Baldwin match, Thompson was the choice of 49% of people in the poll, with Baldwin, a Democratic member of Congress from Madison, drawing 41%. In other head-to-head matches, Baldwin and Neumann tied at 44% each, and Baldwin led both Fitzgerald (45% to 39%) and Hovde (45% to 36%).

In an “On the Issues with Mike Gousha” session at Eckstein Hall, Charles Franklin, director of the Marquette Law School Poll, said that if it hadn’t been for the recall election for governor on June 5, the Senate race would have been one of the most fascinating elections in recent state politics. But the race drew little attention until now.

In another poll result, Democratic President Barack Obama was supported by 49% of likely voters in the November election, with Republican candidate Mitt Romney supported by 43%. In late May, the poll found Obama ahead 51% to 43%.

Full results of the poll may be found by clicking here. The conversation about poll results between Gousha, the Law School’s distinguished fellow in law and public policy, and Franklin, visiting professor in law and public policy, may be found by clicking here.

Continue ReadingNew Poll Results: Thompson Leads in US Senate Race