12/2010: “I’ve been following the debate both at the VC and elsewhere, and find myself somewhat amused at the law professor conceit that the constitutionality of the individual mandate will be determined based on whether the ‘best’ interpretation of USSC precedent supports it or not.”
Before the litigation, the wide consensus was that the “best” interpretation of (a) Commerce Clause precedent allowed the mandate, a proposition that received only four votes; (b) tax power precedents allowed the mandate, but that this was weaker than the Commerce Clause argument, when in fact it turned out to be stronger in practice; and (c) spending power precedent allowed the Medicare expansion as written, a proposition that received only two votes. I don’t think that the “consensus” was wildly mistaken about the natural implications of existing precedent, just wildly mistaken about how important such precedents are when historic litigation supported by only a minority of the country and requiring an extension of existing precedent is before the Court, and none of the relevant precedents are directly on point.