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View Diary: Sixth Circuit Upholds Individual Mandate In ACA As Constitutional (85 comments)

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  •  From the Dissent (4+ / 0-)
    Recommended by:
    itskevin, atdnext, wader, Publius2008

    and it is really shocking:
    "To the fatalistic view that Congress will always prevail and courts should step
    back and let the people, if offended, speak through their political representatives, I say
    that “courts were designed to be an intermediate body between the people and the
    legislature, in order, among other things, to keep the latter within the limits assigned to
    their authority.” The Federalist No. 78 (A. Hamilton). In this arena, the “public force”
    is entrusted to the courts. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L.
    Rev. 457, 457 (1897). “[W]here the will of the legislature, declared in its statutes, stands
    in opposition to that of the people, declared in the Constitution, the judges ought to be
    governed by the latter rather than the former.” The Federalist No. 78."

    What is striking is the complete lack of case law in the last part of the dissent.  Really this is an attempt to return the law to its state before the New Deal.  As such it is breathtaking in the extent to which it would override Democratic processes.  Given the last 30 years of conservative writings on the need to defer to the legislature, it is stunning in its hypocrisy.

    The problem for those who want to hold HCR unconstitutional will be to identify why this law should be overturned but the rest of the post New Deal Legislation should not.  The Dissent's case is one familiar to any defense lawyer and built on dicta from concurring opinions.  The Dissent's opinion in a way is nothing less than an attempt to undue the 14th Amendment, and the Civil War.

    The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

    by fladem on Wed Jun 29, 2011 at 10:03:06 AM PDT

    [ Parent ]

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