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Bench Memos

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Far From Easy



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This law-review essay by Duke law professor Stephen E. Sachs (who recently clerked for Chief Justice Roberts) is specifically directed against claims by Obamacare supporters that the constitutionality of the individual mandate is an easy question. Sachs spells out that the arguments against the mandate “sound in law rather than in politics”; that “each substantive defense of the mandate is open to doubt”; that “a decision striking down the mandate needn’t be a drastic break from past practice”; and, indeed, that it is a decision upholding the mandate that “would raise serious questions about the limits of Congress’s power.”

See also this Volokh Conspiracy post by Ilya Somin.



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