It's unlikely that the Court will turn to the tax power argument when the lower courts were so cool to it. But it is a compromise position that might garner five or six votes if Kennedy and Roberts don't want to take a position on the commerce power. We'll see.Read it at Balkinization
The tax power theory as a compromise position in the ACA litigation
by Jack Balkin | Knight Professor of Constitutional Law and the First Amendment and Director, The Information Society Project at Yale Law School
1 comment:
Actually, the Justices don't have to agree on the grounds they use to hold the ACA constitutional. The 4 liberals could argue the commerce power, another 2 or 3 could uphold it by calling the mandate a tax. That produces a 6-3 or 7-2 vote. No ambiguity.
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