Thursday, April 5, 2012

Mulligans, two?

Steven Hayward at Powerline draws a parallel.
Richard Epstein points to Justice Anthony Kennedy’s killer question in the oral arguments over the Obamacare mandate last week: “Can you create commerce in order to regulate it?” Where have we heard something like that before? That’s right—in Citizens United.

Prior to the prospect raised last week of the Supreme Court striking down Obamacare, Citizens United is the modern case that gets the most ire from the Left. ...

What people forget is that Citizens United was reargued, because the Justice Department also could not give a coherent answer to a killer question, this time from Justice Alito, as to whether the campaign finance laws that prohibited the distribution of Hillary, the Movie wouldn’t also allow the Federal Election Commission to regulate the distribution of books near election day. Then-solicitor general Donald Stewart answered Yes, notwithstanding that pesky little First Amendment thingie.

Alarmed, the Court ordered the case reargued, specifically expanding its scope to ask whether certain previous cases that provided the basis for Stewart’s answer had been erroneously decided and should be overruled. During the second oral argument, a new solicitor general—Elena Kagan—was asked the same killer question, and answered: “No [we can’t regulate books]; the government’s position has changed.”
Via KausFiles, Mulligan v. Maryland:
Reargument! Give the stunned liberal legal intelligentsia time to regroup. Send Solicitor General Verrilli to the showers and bring on someone better. ...