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Bench Memos

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Positively Final Appearance (in this context . . .)*



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In his premature declaration of victory, Ramesh Ponnuru avers that I have abandoned the defense of what he calls Chief Justice Roberts’ “functional” analysis of what is commonly called (but nowhere in the statute called) the “individual mandate.”  To the contrary, I have argued that Roberts has not, as Ramesh seems to think, imposed a distorting external framework on his reading of the statute based on some “functional” preconception, but has fairly read the statute as containing, within own its terms, a mixture of functional taxing-power operations (do this behavior or pay this tax) and morally compulsory commands (meet this requirement or suffer this penalty).

Can two people declare victory in a friendly debate?  I will buy Ramesh a drink next time we meet, if he springs for the second round.

(*I don’t want our readers to think I am departing for keeps.)



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