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March 26th, 2012 4:55 pm
Then Again, Maybe I Was Right Before I Was Wrong

After reading the transcript of today’s oral argument, I thought the justices seemed extremely chilly to the idea that the Anti-Injunction Act should bar the court’s consideration of the ObamaCare “mandate” case until the mandate actually goes into effect — thus making my most recent post dead wrong (if my interpretation today is right), thank goodness. A few months ago, I had dismissed the AIA argument; last week, however, I wrote that Anthony Kennedy might find it a convenient dodge. But after today, it doesn’t look like anywhere near a court majority will do so. Judging from Lyle Denniston’s summary at Scotusblog, which I read after forming my opinion on the justices’ behavior today, it seems as if that eminent court-watcher agrees.

So, if this interpretation is correct, then we do get to move on to the most important question, which is the question on the merits of whether the mandate itself is constitutional. There are three different sorts of challenges to its constitutionality; the ultimate disposition of these challenges is very much up in the air — and there are millions of Americans who care deeply enough about this case that the tension of waiting for the court’s decision will be decidedly uncomfortable.

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