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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, February 01, 2011

A Bit More

Balkinization has a various opinions strongly rejecting the "Tea Party" opinion striking down the health care law root and branch. Tim Jost dismantles the opinion as well. Jack Balkin, who has does yeoman work defending the law is a tad pissed, showing Sandy Levinson type passion:
The notion that being asked to either buy health insurance and make health care accessible for one's fellow citizens--or to pay a small tax-- is a form of tyranny akin to George III's regime is simply bizarre: it shows how perverted and twisted public discourse has become in the United States. The assault on the individual mandate is really an assault on the public duty to assist other Americans in need, and in particular, an assault on the legal obligation to pay taxes to contribute to the general welfare. The assault on the health care bill is not a defense of liberty. It is a defense of selfishness.
I concur. The annoying thing here is not only the johnny come lately selective arguments but the idea that this is some major threat to liberty, when it in fact is just the opposite. One final thing, since others have covered this ground in depth as seen by the links thus far, an abortion ruling is cited to help show there is some need to strike down the legislation in full. The opinion, as is the norm, really goes the other way. This includes the general principle that courts should "enjoin only the unconstitutional applications of a statute while leaving other applications in force." But. as Orin Kerr notes, acting like an inferior court judge was something treated as a "now and then" sort of thing here.

A word on the other ruling cited today. The judge argues that a narrower anti-fraud law might be legitimate. The concern appears to be that it isn't content neutral. Again, this doesn't seem to be the rule in place for abortion providers. And, there was clear evidence that a special problem was involved that had to be addressed. So, I'm still very hazy on why this law is illegitimate, even though I'm quite supportive of a strong view of the First Amendment. Eugene Volokh, no wanker in that department, ended up agnostic. Note his telling (see my comment) update.