Stuart Taylor on how the Supreme Court will rule on Obamacare

Whether one disagrees with Mr. Taylor or not, he is always worth reading.

. . . . David Rivkin, a Washington lawyer who argued the case last week on behalf of the 20 states challenging the law. He says that upholding it would obliterate all limits on the commerce power, a step that Justice Kennedy and his four more conservative colleagues have repeatedly eschewed. Such a step would cross an important line and make America less free, Rivkin and his allies stress, by empowering Congress to require even the purchase of health-club memberships or, say, cars to stimulate the economy.
At the same time, leading centrist-to-conservative legal experts . . . doubt that the justices would or should strike down such a hugely important enactment with so vast an impact on interstate commerce. Others stress that Congress's sweeping authority to tax and spend for the general welfare—on which the somewhat analogous Social Security and Medicare taxes are based—provides ample authority for the penalty tax imposed by the new law on people who refuse to buy health insurance.
The justices have not struck down a major piece of legislation, let alone a president's signature initiative, as beyond Congress's power to regulate commerce in some 75 years.
Still, much may depend on where things stand when the issue reaches the justices. How popular or unpopular will the president's new law be then? How costly? How effective? What if the voters have by then elected a more conservative Congress that wants to repeal the law? Such factors are not supposed to influence constitutional interpretation, but sometimes they do.

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