| Kasz216 said: You seem to have a clear misunderstanding of how the supreme court works. I suggest more to yesterday's arguements. Lateral arguements and questions were in VERY high use, and seen as VERY relevent because of how ruling that the law is consitutional leads to other lateral arguements that may more cleaerly be unconsitutional, therefore making the whole thing unconstituional. |
Could be. In the Citizens United case the government found itself arguing that it could not only ban advertisements and the airing of movies, but also books and whatever else it wanted. Partisans and ideologues will probably rule the way they're going to rule regardless because they focus more on intent than actual effect, but such a display of wanton disregard for free expression had to make it hard for a Kennedy to do anything other than strike down McCain-Feingold. I didn't see the Solicitor General resort to anything quite that egregious yesterday, but Kennedy was clearly concerned with the kind of precedent this law sets. If Scalia is really as down on the mandate as he sounded yesterday, then this whole thing probably comes down to whether or not Kennedy buys the argument that the very nature of health care makes this fundamentally different than compelling any other form of economic activity.
It's still funny to me that it would probably have never made it this far had the penalty been included in the tax code (which is used for social engineering all the time) rather than as a fine. Part of me understands the desperation of Democrats to avoid being accused of raising taxes because it's such a longstanding knock against them, but on a superficial level I think I'd personally resent being fined more than I would just paying more in taxes.
