Kevin Drum, in Mother Jones, contends that we diabolical conservatives first strong-armed the Republican Party into accepting our view of the unconstitutionality of the Obamacare individual mandate, then we successfully used the right-wing media to brainwash the mainstream media into accepting our arguments as legitimate, and all this, you see, gives cover to our partisan judges to make a partisan ruling.

Two years ago, when President Obama signed the Affordable Care Act into law, the idea that its individual mandate provision was unconstitutional was laughable. There was no case law, no precedent, and frankly, no serious argument that the federal government’s Commerce Clause power didn’t give it the authority to mandate purchase of health insurance if it wanted to. That’s why Democrats didn’t bother looking for a clever alternative—many of which were available—in order to avoid including an explicit mandate in the law. They didn’t think they needed to. Of course it was constitutional. Even Randy Barnett, the law professor who popularized the activity/inactivity distinction that opponents latched onto as their best bet against the mandate, initially didn’t really think it was anything but a long shot.

So how did that conventional wisdom change so dramatically in only two years? …

let’s hear what a nonliberal has to say about it:

Orin Kerr says that, in the two years since he gave the individual mandate only a one-percent chance of being overturned, three key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. “That legitimized the argument in a way we haven’t really seen before,” Kerr said. “We haven’t seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage.” Finally, he says, “there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame.”

This is, needless to say, a powerfully depressing analysis. For all practical purposes, Kerr is agreeing that conservative judges don’t even bother pretending to be neutral anymore. They listen to Fox News, and if something becomes a consvative talking point then they’re on board. And that goes all the way up to the Supreme Court.

Kevin Drum’s perspective amounts to assuming that extreme New Deal jurisprudence, like the 1942 Wickard v. Filburn (a decision which ruled that the Constitution’s grant of power to regulate Interstate Commerce gave Congress the power to tell an Ohio farmer named Roscoe Filburn that he was not allowed to grow wheat on his farm to feed his own chickens. Farmer Filburn using his own wheat, and not buying wheat on the market, was deemed to impact Interstate Commerce and therefore to provide a legal basis for Congressional authority.) was good law and destined to endure forever unchallenged by the reasoning of later courts.

Kevin Drum studiously ignores the fact that the Constitution-in-exile of the New Deal era has been gradually coming back. The Supreme Court resumed, in a modest way, re-adopting the perspective that Constitutional authority to regulate Interstate Commerce actually required the legislative object to involve commerce crossing state lines. In U.S. v. Lopez (1995), the Court struck down a Gun-Free School Zone law because the regulated activity concerned actually had nothing to do with Interstate Commerce.

A number of other once-thought-to-be-extinct Constitutional provisions, like the Second Amendment, have come roaring back to life in recent years.

To believe, as people like Kevin Drum and Nancy Pelosi notoriously did, that it was completely unnecessary to look for an actual constitutionally enumerated power to permit Congress to tell Americans to buy health insurance policies is to reject the fundamental American idea of limited government.

What has actually occurred, over decades, is a national debate over whether a long string of unprincipled, legal realist rulings simply setting the Constitution and the entire earlier history of constitutional law aside were correct. In law review articles, public debate, and in national elections leading to judicial appointments and ultimately to rulings, the left has been losing and the conservative position has been winning.

In the end, there should be no surprise to anyone who takes the Constitution seriously when the Obamacare individual mandate is struck down. That was the intent of the framers, and those of us who contend that that is what the Constitution says inevitably have the better arguments.

Some commentators thought the Supreme Court’s failure to grant cert in Alderman v. US, a 9th Circuit case involving possession of body armor by a felon, testing the reach of the Commerce Clause, may have evidenced an inclination on the part of the Court to decline to consider the same kind of issue as it applies to a federal mandate to purchase health insurance as part of Obamacare.

Well, now that half of all the states in the Union are in court asking that the democrat Health Care Reform Bill be struck down as unconstitutional, it seems to me increasingly less likely that the Supreme Court will feel able to shirk making a historic decision.

[T]he newly elected governors of Ohio, Oklahoma, Maine, and Wisconsin have all decided to sue the Obama administration in hopes of stopping Obamacare. Specifically, Gov. Mary Fallin of Oklahoma has announced that the Sooner State will pursue its own case against the law, while Govs. John Kasich (R) and Scott Walker (R) (of Ohio and Wisconsin respectively) will add their states to Florida’s multi-state suit. And yesterday, newly sworn-in state Attorney General William Schneider announced Maine would also join the the Florida litigation. That brings the number of states on the Florida suit to 23 and the total number of states suing to stop Obamacare (which includes Virginia and Oklahoma) to 25.

Death of Achilles, Villa Reale, Milan

Louis Case, at American Thinker, points out that the complicated Machiavellian shenanigans needed to get Obamacare through Congress inevitably include the potential legal seed of the destruction of the entire bill.

Virginia’s lawsuit argues that the federal government has no constitutional authority to require individuals to purchase health insurance policies.

Virginia is asserting that certain portions (that is, the personal mandate) of ObamaCare are unconstitutional. If Virginia prevails, it leaves the question of what happens to the rest of the ObamaCare statute. This is where the concept of severance comes in. Normally, all comprehensive laws contain a boilerplate severance clause: it says that if any portion of the law is found to be unconstitutional, that portion is severed from the rest of the law — that is, the rest of the law stands.

But ObamaCare contains no severance clause. Virginia is asserting that if it prevails on its substantive claims, the whole law is unconstitutional. (If Virginia does not prevail, any one of the twenty-plus legal challenges have the same severance argument available.)

If a severance clause is normal boilerplate, why does not ObamaCare contain one? This is where Scott Brown’s election enters. Recall that the House passed its version of ObamaCare. On Christmas Eve, after much horsetrading and bribing, the Senate passed its version. The Senate version was not drafted to be in its final form; it was drafted to get 60 votes. Normally, these bills would be reconciled in a conference committee, and the final version would have to be voted on again with 60 votes in the Senate. However, before it could be sent to conference and reconciled, Scott Brown won in Massachusetts — a reconciled bill could no longer get 60 votes! That is why the House had to vote up or down on the Senate bill, which was basically a draft without the normal boilerplate inserted.

As Virginia argued in its Memorandum (Pages 24 to 28), the presence of a severance clause raises a presumption that Congress did not intend the whole statute to depend on the constitutionality of any particular clause. But with no severance clause, they are not entitled to that presumption. A court cannot sever the offending clause on its own if the statute would not function as Congress intended.

The courage of the elite: Metropolitan Museum prudentially removes images of Mohammed and renames Islamic Galleries.

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High rise buildings in Mecca make it evident that roughly 200 mosques are pointing in the wrong direction.

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Crime pays in Norway.. Foreigners qualify for welfare after a year in jail. If they serve three years, they get health benefits and qualify for old age pension. Hat tip to the News Junkie.

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Lawsuit begins in California federal court contending that the US Constitution mandates Gay Marriage. Wouldn’t Gouverneur Morris be surprised?

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Obama postpones State of the Union address in order to avoid preempting season opener of Lost.