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Tribe Baits Scalia

February 9th, 2011 No comments

That’s surely what liberal Professor Laurence Tribe is doing here, right?

Given the clear case for the [health care] law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

Two predictions:

(1) Scalia, as obvious a partisan as you’ll ever find, will vote to strike down the law; and

(2) He won’t be able to resist taking on Tribe, probably in that nasty-clever way that he’s perversely perfected.

This should be good. (By “this” I mean Scalia’s response, not the possibility that the law will actually be struck down. I still don’t think that’s likely, and it would be a disaster for both the Obama Administration and the country.)