As with any conversation where the professors do not fully agre–or at least have additional perspectives–they are having a very, very interesting and in-depth convo. To start it off here is a post that speaks to the lack of consensus on this matter with in general. Oh–and per the usual atmosphere at Volokh, the comment section is civil, interesting, and stays largely focused on the merits.

Todd Zywicki starts off another post on Standing and Ripeness with this:

Ilya notes the standing and ripeness issues in the health care suits.  A few weeks ago, Virginia Attorney General Ken Cuccinelli spoke at GMU law school (following a now-established tradition of having newly-minted AG’s speak at the law school).  I asked him exactly these questions about Standing and Ripeness.

Read the rest of that post HERE which looks at the various lawsuits being brought against Obamacare and the mandate in particular by the States and is a follow up to Ilya’s post here, which begins:

This is the first in my projected series of posts on issues likely to arise in the various lawsuits challenging the constitutionality of the Obama health care bill. To briefly recap, the lawsuits in question are one filed by 13 state governments challenging the individual mandate and various mandates and grant conditions imposed by the states, one independent suit filed by the state of Virginia, and a little-noticed but potentially important case filed by the Thomas More Law Center on behalf of four individual citizens who object to the individual mandate and refuse to obey it.

The really important issues raised by these suits have to do with federalism, the Commerce Clause, and Congress’ power to tax. However, administration lawyers will probably try to get the lawsuits dismissed on procedural grounds of standing and ripeness.

However, the one I find most interesting, and takes on the broader-scoped question is here by David Kopel:

Thus far, the argument among law professors over the constitutionality of Obamacare has been well represented by scholars who have made pro and con arguments over particular clauses in the constitution, such as the interstate commerce clause, or the tax power. In this post, I would like to examine an insight by Jonathan Turley, which points the way to strong, recent, and repeated precedent suggesting that Obamacare is unconstitutional.

Let’s begin by getting rid of the red herring that questioning the constitutionality of Obamacare requires denying the constitutionality of the New Deal and the Great Society. Orin asks:

In your view, which of the following federal programs or agencies are constitutional?

(a) Social Security
(b) The Federal Trade Commission
(c) Medicare/Medicaid
(d) The Securities and Exchange Commission
(e) The new Health Care mandate

In my view, (a), (b), (c), and (d), are constitutional, but (e) is not. My answer is based on using “constitutional” in the normal sense of the word as it appears in most modern public dialogue. That is, “Should a judge who accurately applies existing precedents, and other sources of legal authority, find the law to be constitutional?” This is the question that federal district judges and circuit court of appeal judges will have to answer, since they have no authority to reject Supreme Court precedent.

Read the rest HERE. And head on over to the Volokh Conspiracy and just keep scrolling.

Read about his bold moves HERE.

Chait actually makes two distinct claims about Obama: that he has a superior intellect and that he is a superior “communicator.” The first claim could be true, although it is far from indisputable. But the second claim is so absurd as to be delusional.

Obama has spent the past year trying to sell Americans on ObamaCare. He has failed utterly, as Podhoretz notes. Now, maybe Chait is right that opposition to ObamaCare is a product of stupidity. Maybe ObamaCare would be popular if a majority of Americans were as brilliant as Jonathan Chait. But in a democratic republic, elections are not limited to the elect. Shockingly, half of all Americans have below-average IQs. They vote too.

By no imaginable standard can a politician be considered a great “communicator,” or even an adequate one, if he is unable to persuade voters of average-or-below intelligence to back his policies.

Indeed.

Via Tom Maquire

From Newsweek: “Washington is working just fine. It’s us that’s broken.“

Given that we live in a constitutional republic, one has to wonder if they get just how fucked up and insanely ironic [not to mention arrogant] this headline is.

Nah. I doubt they do.

For years, the site of the property condemned in the controversial Kelo v. City of New London case has stood empty. Now however, there are recent reports that the city of New London has found a developer interested in building townhouses on the site (see here andhere) [HT: my RA Eva Choi, and Michael O’Malley of the Yale University Press].

Several previous plans to develop on the condemned property have gone under. In November, the Pfizer Corporation, whose lobbying helped instigate the initial takings, announced the planned closing of its headquarters in New London. That step further reduced the likelihood that anything will be built in the area. It remains to be soon whether the townhouse development will work out better than these previous efforts. At present, it is not clear how much the new project will cost taxpayers, and a news report indicates that “[c]onstruction on the project will not occur any time soon.”

Even if the townhouses are eventually built, it is unlikely that they will generate enough development to offset the value of the numerous homes and businesses wiped out by the condemnations, the opportunity cost of having the area lie empty for years, and the over $80 million in public funds already expended on the project.

Ironically, much of the condemned area was a lower-middle class residential neighborhood before the takings, and New London’s current plan is to use the land for roughly the same purpose. The City could have “achieved” this result at far lower cost simply by leaving the neighborhood alone in the first place. Taken as a whole, the Kelo story exemplifies the ways in which “economic development” takings not only victimize property owners, but also often destroy more development than they create (see also my more extended discussion inthis article, which cites figures for the costs of the Kelo takings).

Ilya has added an update worth checking out. Me linky. You clicky.