I doubt the Supreme Court will strike down Obamacare on Epstein’s taking argument, states challenging the so-called “Nebraska Compromise” may have some luck.
But, this 23rd day of December, 2009, I am making a prediction.
If the recalcitrant Supreme Court actually strikes down any portion of ObamaCare, we will see a political backlash against the Supreme Court unlike anything we’ve seen since FDR’s court packing scheme.
This landmark legislation, which blows away Title VII, the ADA, and the Social Security Act, in its scope and power, will constitute the next constitutional moment.
The Constitution in 2020 movement realizes the futility of relying on the Supreme Court to protect their preferred rights, and aim to shift the constitutional obligation to the Legislature, and to the people.
Jack Balkin and Sandy Levinson have already blogged about a constitutional moment, with respect to Nelson and Lieberman. Just wait till SCOTUS tells POTUS nope. Expect to see call for term limits for SCOTUS and other measures to take power away from these unelected oracles of the law.