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March 23rd, 2012 2:32 pm
My Prediction on Obamacare Case

For what it’s worth, my prediction on the ultimate outcome of the ObamaCare case this term, even before oral arguments are made this coming Monday, is as follows:

Anthony Kennedy accepts his former law clerk Brett Kavanaugh’s ludicrous argument that the Anti-Injunction Act bars court jurisdiction on Obamacare until the mandate and its penalty are actually implemented. He does so while dropping rather clear, even if implicit rather than explicit, hints in his bare-majority opinion that if the case were able to reach the merits, he would find the mandate unconstitutional.

It might even be some sort of plurality opinion.

I know this contradicts my prediction from several months ago right here. There, I dismissed the argument on the Anti-Injunction Act. I still think it is eminently dismissable. But that doesn’t mean Kennedy won’t latch onto it. It provides a handy way to punt the issue away, which is why I think Kavanaugh provided it, knowing his former boss as well as he does. Kavanaugh’s logic was extremely tortured… but Kennedy delights in tortured logic. Alas.

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