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First Thoughts on The Decision

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The decision of the Court, specifically the Chief Justice’s opinion, is so unexpected that it will take some time to absorb and analyze.
First thoughts:
The Chief Justice’s opinion of the Commerce Clause and the Necessary and Proper Clause is all that could be asked of from an originalist. Long may this portion of the opinion control lower courts.
The Chief Justice’s decision to embrace the taxing power as a justification for upholding Obamacare will be debated a hundred years down the road in institutional terms –did he find a way to uphold the Act so as not to damage the Court? etc– but in pragmatic impact it is a disaster for the country if Governor Romney does not become President Romney and with a majority sufficiently large to repeal the Act.
The Chief Justice’s decision greatly complicates the process of judicial selection down the road for any Republican president but especially Romney as every conservative will be waving this judicial equivalent of a bloody flag for decades to come.
The Chief Justice’s decision is the consequence of his personal integrity as it would have been much, much easier for him to rule the other way. Critics of him will have to consider what they would have done if they believed the mandate to have been justified by the taxing power.
Finally, the great disappointment should at least in part be eased by the prospect, very real, that the HHS regs will never survive this Court, nor other aspects of the law if it survives November’s political judgment.
Hard to believe but when President Romney issues his executive orders on day one of his Administration, many will say with reason that the election was decided this day when the decision in Obamacare made clear that only voters could make the U-turn required


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Friends and Allies of Rome