Month: June 2012

 Scott Pilutik received his J.D. from Brooklyn Law.  His legal analyses have appeared in and been cited by numerous outlets, including The Village Voice.  Today he breaks down the legal intricacies and political ironies that shaped the Supreme Court’s 5-4 decision to uphold the ACA, popularly known as ObamaCare.   Prior to yesterday’s U.S. Supreme Court decision on the Patient Protection and Affordable Care Act (the ‘ACA’), a consistent legal narrative had dominated discussions.  On the Left, the law was deemed constitutional because it falls well within Congress’s authority under the commerce clause to regulate interstate commerce.  That argument is best summarized by Andrew Koppelman, here.  On the Right, it’s unconstitutional because Congress’s power to regulate interstate commerce does not include the power to compel, best summarized here by the argument’s intellectual author, Professor Randy Barnett. So when Chief Justice John Roberts began the day by announcing that Barnett’s argument had prevailed, you could almost forgive CNN and Fox for tripping over themselves to mistakenly report that the ACA’s individual mandate had been struck down.  But it didn’t work out that way.  As Barnett put it: “Who would have thought that we could win while losing?” John Roberts and John Roberts alone, apparently. Four justices (Breyer, Sotomayor, Ginsburg, and Kagan) found the individual mandate permissible via the commerce clause, while four other  justices (Scalia, Alito, Thomas, and Kennedy) emphatically did not, writing: “we would find the Act invalid in its entirety.”  In fact, they were more than emphatic.  Their dissent was fully joined, thorough, and strident.  It reads as if it were originally the majority opinion, a majority opinion that Roberts abandoned at some point.