There’s a lot of nonsense out there about constitutional challenges to the Health Care Reform law on various ‘state sovereignty’ grounds. That’s nonsense. The Nullification Crisis and Civil War settled those issues. But the more serious challenges are based on extremely forward-leaning conservative arguments about the ‘commerce clause’. It seems very out there. Comical almost. And with your average Court, I would think it a trivial concern. But this Court, particularly the four most conservative members, have shown themselves to be not only so ideological but so activist and even so partisan that I’m not sure you can really put it past them. We’re going to do some poking around to find out more, particularly views on this question among the sort of legal academics and would-be judges who cluster around the Federalist Society.
Just to be clear, I’m not saying I consider this at all likely. But I’ve seen a number of things happen lately that I didn’t think at all likely. So I’m watching.
Josh Marshall is editor and publisher of TalkingPointsMemo.com.