Cultural Revolutions

The Last Word

What would the country be like if Congress added to every law it passed a section that said “No court of the United States or any state shall have power to review or interpret this act”?  Such a proviso, popularly known as a “stripper,” prevents the Supreme Court from declaring the act unconstitutional.  In the new America, we would not wait around for two or more years to find out if a law is legal—and then be obliged to deal with hundreds of pages of grotesque distinctions.

For example, in the ObamaCare case (National Federation of Independent Business v. Sebelius), the Roberts Court found the healthcare mandate was not a “tax” but a “penalty” for purposes of the Tax Injunction Act, which would have stripped the Court of power to hear the case, but was a tax and not a penalty for purposes of upholding the mandate’s constitutionality.  That, as the dissenters write, “Carries verbal wizardry too far, deep into the forbidden land of the sophists.”  A tax imposed on going without health insurance sounds a little odd.  If we can tax that omission, we can presumably tax any other omission, including the failure to eat enough broccoli.  In any case, the concepts the Supreme Court uses are so plastic that they allow it to reach any result five justices agree on.

Justice Breyer recently...

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