New York Times Supreme Court Analyst Pines for "presumption of constitutionality" for Federal Laws


A revealing passage from Linda Greenhouse about the U.S. District Court ruling against ObamaCare's individual mandate:

Whatever its ultimate fate, the decision has succeeded quite well in shifting the burden of the argument, removing the presumption of constitutionality in which federal laws ordinarily come clothed and that the Obama administration now has to regain, as not only the appeals process, but the public conversation as well, moves forward.

Lest you think Greenhouse's lament covers only economic regulations, the fulcrum of her analysis is the Supreme Court's 7-2 decision in U.S. v. Comstock asserting the federal government's right under the "necessary and proper" clause of the Constitution to imprison "sexually dangerous prisoners" even after their sentences have been served. Like Kelo v. New London and Raich v. Gonzales, the Commerce Clause fight over ObamaCare is proving to be a clarifying moment for liberal deference to state power.

Damon Root on Comstock here; his must-read cover story on Conservatives v. Libertarians here.