In case you haven't checked the front page today, my TRB column is up, about the whackadoodle attempt to overturn the Affordable Care Act on Constitutional grounds:
When U.S. District Court Judge Roger Vinson ruled last week that the individual mandate—and hence, the entire Affordable Care Act (ACA)—violates the Constitution, right-wingers were entitled to feel giddy. But they want more than giddiness at the prospect that ideologically friendly judges may win for them what they lost at the ballot box in 2008. They want intellectual respect, too. Most of the legal profession had, until recently, dismissed lawsuits against the ACA as nutty, a fantasy of right-wing judicial activism. “Suddenly,” gloated libertarian law professor Randy Barnett, “they had to take these arguments seriously.”
The legal experts were wrong, but Barnett fails to locate their error. The mistake wasn’t in failing to take the intellectual merits of the conservative case against the ACA seriously. Their mistake was taking right-wing jurists too seriously—thinking of them as judges who happened to have a conservative point of view, rather than as the judicial wing of the conservative movement.
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