The Agenda

A Few Links on the PPACA Decision

Before the decision, Tom Perriello, until recently a member of Congress, suggested that those who disagree with him on whether or not that the Commerce Clause gives Congress plenary power over all decisions and non-decisions with an economic dimension are “Confederates.” 

Noah Feldman offers an informed take from the legal center-left. 

Yuval Levin argues that the decision strengthens the case for repealing and replacing PPACA. He also finds Chief Justice John Roberts argument for interpreting the individual mandate as a tax extremely unconvincing. 

Jay Cost has been making the case that the decision, or rather Roberts’ minimalist interpretation, “was definitely a win” for those concerned about limited government. Ezra Klein, meanwhile, believes that the Roberts’ decision was a stroke of political genius. Ross Douthat provocatively argues that while many on the left had warned against a “political” decision, Roberts seems to have upheld PPACA on essentially political grounds

Jack Balkin of Yale Law School anticipated the approach Roberts would eventually take in an op-ed published back in May. Specifically, he suggested that because Roberts and Anthony Kennedy were concerned about establishing a limiting principle for the Commerce Clause, defining the mandate as a tax “offers them a way out.” Kennedy, of course, didn’t follow the script, but Balkin wasn’t the only observer who assumed that Roberts and Kennedy would move in lockstep. 

Randy Barnett, the libertarian legal scholar who helped build the case against the constitutionality of the individual mandate, considers the decision “a weird victory for federalism.” Ilya Somin also offers an optimistic interpretation. And Adam Winkler suggests that the Chief might be husbanding the Court’s political capital to take on a number of other contentious cases concerning racial preferences and the Voting Rights Act. Sean Trende argues in a similar vein

Charles Krauthammer offers a sophisticated take on Roberts’ possible motivations, as does Steve Teles. Steve’s post is particularly rich, and it offers a framework for thinking through how the Court might handle future decisions. Steve maintains that Roberts is a judicial conservative in the style of Robert Bork, and not a legal libertarian in the style of Barnett or Richard Epstein. He also notes that PPACA is “a fairly ragged piece of legislative work, with a lot of loose threads to pull on” — and so there is at least some reason to believe that the Court will hear future challenges to various aspects of the law.

Going forward, Ryan Lizza argues that Mitt Romney would have an exceedingly difficult time repealing PPACA if elected president. Matt Yglesias thinks that a victorious GOP would find repeal “a pretty easy lift.”

James Capretta, like Yuval Levin, raises an interesting wrinkle: if the penalty under the individual mandate is understood as an optional tax, it suggests that the mandate might not prove as effective as the CBO had originally assumed. He emphasizes that the key thing for Republicans and market-oriented critics of the health law more broadly is to offer a credible alternative. 

And finally, on an entirely unrelated note, Lena Dunham has a pitch-perfect short essay on her brief friendship with Nora Ephron, the celebrated screenwriter and humorist who died this week. 


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