Thursday, June 28, 2012

Take That, Nancy Pelosi....

George Will believes that conservatives should view the Supreme Court's endorsement of the "activity/inactivity" distinction as a consolation prize. Maybe he's right - after all, as the issue seems to come up every two centuries or so, perhaps a couple of hundred years from now the Supreme Court will review an inartfully worded statute and find it to impose an unconstitutional mandate. And perhaps they'll again say, "But who cares, because if we call it a 'tax' it's all good".

Will takes a potshot at Nancy Pelosi:
When Rep. Nancy Pelosi (D-Calif.), asked where the Constitution authorized the mandate, exclaimed, “Are you serious? Are you serious?,” she was utterly ingenuous. People steeped in Congress’s culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle.
You know, "Ha ha ha ha, she said 'Are you serious' because she thought the mandate was permissible under the Commerce Clause. But the joke was on her because it was actually permissible under Congress's power to levy taxes. Next time she's asked that question and she again answers 'Are you serious', she'll be so embarrassed that she once gave the same answer for the wrong reason."

Brooks suggests that the proper question for the Court is "the 'legitimacy question'":
Is it proper for the federal government to do this?
As I have previously commented, I agree with that thesis - that the court should not put form ahead of substance. But unlike Will I noticed that the court answered his question in the affirmative.

You have to also love Will's argument of convenience about conservatives, democracy and patience:
Conservatives understand the patience requisite for the politics of democracy — the politics of persuasion. Elections matter most; only they can end Obamacare. But in Roberts’s decision, conservatives can see that the court has been persuaded to think more as they do about the constitutional language that has most enabled the promiscuous expansion of government.
All the right wing demagoguery against the ACA, the creation and advancement of a legal theory designed solely to target the ACA, lawsuit after lawsuit after lawsuit, trying to win through the courts a battle that they lost in the legislature... None of that was about trying to "end Obamacare" because (now that the Supreme Court has ruled) conservatives understand that "only elections" can do that.

One last question: If Will is in fact concerned about how "constitutional language" is interpreted, where can I find support for the "activity/inactivity" distinction in the actual language of the Constitution? I urge him to stop writing columns and devote every waking moment to the intense study of the Constitution. After all, it's not a long document - how long can it take?

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