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Thursday, April 25, 2013


Daniel Artz

I agree that the Supreme Court is likely to grant Certiorari -- it's a compelling case with significant implications for the balance of power between the Executive Branch and the Senate. But based on the wild rantings from the Liberal Blogosphere and the liberal Legal Academia that the D.C. Circuit decision was so patently bad, I'm getting a feeling that this is deja vu all over again. When the Constitutional challenge to PPACA went up, the rantings from Legal Academia were all in line -- these folks were absolutely certain that there was no non-frivolous argument for the unconstitutionality of the Individual Mandate in PPACA, and just as certain that the challenges to the expansion of Medicaid were "off the wall", "outside the mainstream", "totally frivolous", and "just plain crazy." Yet when the Supreme Court proved all of them wrong, there was not a single whisper of apology or explanation. Indeed, some continued to preach as if the Ginsberg Dissent was the controlling opinion! Frankly, I think the D.C. Circuit got it right, though it over-reached in opining on whether or not the vacancy had to first arise during the recess -- that point was simply unnecessary to the ruling and was just dicta. Will there be wailing and knashing of teeth when SCOTUS affirms (at least in part) the D.C. Circuit? Or more deathly silence from those who will claim that this is a slam dunk for the President?

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