His article appears in the Summer 2011 issue of National Affairs and is entitled, "Obamacare and the Limits of Judicial Conservatism".
I'm still digesting Claeys' piece, but one of the many interesting points he makes pertains to the conventional wisdom that when the "individual mandate" is eventually decided by the US Supreme Court (SCOTUS), there will be 4 conservative votes against and 4 liberal votes for, with the "swing vote" being Justice Kennedy.
Claeys warns:
[T]his conventional wisdom is wrong -- and adhering to it could prove highly counterproductive for Obamacare's opponents. It is wrong largely because it assumes that the Roberts Court's 'judicial conservatives' are members of a monolithic bloc.In the final section of the paper, he also discusses 4 principles that ObamaCare opponents should keep in mind as the SCOTUS decision draws here:
1. There should be no irrational exuberance about the Virginia and Florida decisions.(He discusses each of these points in greater depth in the paper.)
2. Obamacare opponents should not despair if the Supreme Court votes not to declare the individual mandate unconstitutional.
3. Opponents of Obamacare must anticipate what to say if the Supreme Court votes not to declare the individual mandate unconstitutional.
4. If legislators and candidates will need to argue against Obamacare's constitutionality later, they might as well start now. And they should consult the opinions of Justice Thomas.
As I mentioned above, I'm still digesting this piece. But it's a thought-provoking read. The full text is available at "Obamacare and the Limits of Judicial Conservatism".
Disclaimer: Professor Claeys was on my wife's PhD dissertation committee.
(Link via GMU law professor Adam Mossoff.)
