Bench Memos

The Sixth Circuit Sharpens the Questions

By a 2-1 vote today, a Sixth Circuit Court of Appeals panel has upheld the individual mandate in ObamaCare.  Judge Jeffrey Sutton’s concurrence and the dissent of District Judge James Graham (sitting by designation) sharpen the arguments considerably.  Graham’s is one of the best available opinions arguing that the mandate is an unconstitutional exercise of the commerce power.  And Sutton’s is far and away the best defense of the mandate’s constitutionality yet published.  It could also, of course, be read as a very large query to the Supreme Court: Are you serious about judicially enforced limitations on the commerce power?  Because if so, here is the mess in your own precedents that you would have to clean up to get serious about it.  On the other hand, if you’d rather not, there’s always politics . . .

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Politics & Policy

Get Your Facts Right

On the menu today: Another reminder that “People of Praise” and “People of Hope” are not the same group, and proof that “People of Hope” did not inspire Margaret Atwood’s The Handmaid’s Tale; wondering what Joe Biden is doing with his time these days; and two Senate committees release their ... Read More
Politics & Policy

Get Your Facts Right

On the menu today: Another reminder that “People of Praise” and “People of Hope” are not the same group, and proof that “People of Hope” did not inspire Margaret Atwood’s The Handmaid’s Tale; wondering what Joe Biden is doing with his time these days; and two Senate committees release their ... Read More

Why Not Make Democrats Angry?

Some of the Right’s leading thinkers, people I hold in the highest esteem, say circumstances are so unusual right now that the president and the Senate should do something other than what they ordinarily would do when a Supreme Court vacancy occurs: nominate and consider a replacement for Justice Ruth Bader ... Read More

Why Not Make Democrats Angry?

Some of the Right’s leading thinkers, people I hold in the highest esteem, say circumstances are so unusual right now that the president and the Senate should do something other than what they ordinarily would do when a Supreme Court vacancy occurs: nominate and consider a replacement for Justice Ruth Bader ... Read More