Readers of Bench Memos may recall that I made myself tiresome by defending the probity of Chief Justice Roberts, and the plausibility of his opinion for the Court upholding the “individual mandate” under Obamacare, in the days immediately following the June 28 decision. As I wrote about it more and more, reread Roberts’ opinion, and examined the statute and the legislative history more closely, I found his views more and more defensible. Still I clung to the notion that the dissenters in the case (Justices Scalia, Kennedy, Thomas, and Alito) had it right on the merits of the statutory interpretation, categorizing the mandate as, well, a mandate, with a penalty, rather than an exercise of the taxing power.
Now I give up. Roberts was correct through and through, and rightly upheld the act under the taxing power. Professor Michael Stokes Paulsen has convinced me, in a clear and powerful essay today at Public Discourse titled “The Power to Destroy.” The chief justice didn’t “stretch” a barely plausible argument. He got it right, period. My hat’s off to Mike Paulsen.
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