From the “That was then - This is now” department. Here’s an interesting observation from Orin Kerr, Professor of Law, George Washington University. (emphasis mine)
“ If the Court does end up striking down the mandate, this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted. Last time around, it was President Bush and the War on Terror. The President relied on precedents like Johnson v. Eisentrager in setting up Gitmo. But when the Court was called on to review this key aspect of the President’s strategy for the War on Terror, the Court maneuvered around Eisentrager and imposed new limits on the executive branch in cases like Rasul v. Bush and Boumediene v. Bush. The President’s opponents heralded the Court’s new decisions as the restoration of the rule of law and the application of profound constitutional principle. Meanwhile, the President’s allies condemned the decisions as the products of unbridled judicial activism from a political court. If the mandate gets struck down, we’ll get a replay with the politics reversed. Just substitute Obama for Bush, health care reform for the War on Terror, the individual mandate for Gitmo, and Wickard for Eisentrager.”
This time last week most pundits assured us that it was a slam dunk for the administration that the health care bill would be supported by the Supreme Court. We were told that even the conservative judges would see that the commerce clause of the constitution would allow the individual mandate to stay in place. Now, after two days of deliberations down with one more to go, it’s no longer assured. Talk about a roller coaster ride….