Adam White has a characteristically insightful piece in the Weekly Standard on the Obamacare litigation. After a concise summary of the legal issues and their trajectory in the lower courts, Adam notes that NFIB v. Sebelius “is the latest case in a remarkable string of cases confronting the Roberts Court with an unprecedented assertion of government power, and leaving the Court with the difficult task of how to preserve our constitutional structure.” The earlier cases include Citizens United; the Gitmo cases; and Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB) (2009), where the Court held that the congressional creation of an independent agency within another independent agency (the SEC) violated the Constitution. Adam correctly identifies the common thread among these disparate cases:
In each, the government had attempted to ground an unprecedented assertion of power in the letter of old precedents. In each, the change involved a fundamental innovation in the structure of government… And in each, the justices lacked useful rules guiding their decision, leaving them to exercise judgment rooted in more fundamental principles. The Court responded in each case by exercising prudence, drawing a new line in the constitutional sand, and requiring the government to step back to a more limited assertion of power…The Court’s review of the individual mandate poses no less a challenge, and merits no less a response.