I am moving today from Johnstown to Louisville, and have not had nearly enough time to read the entire opinion. Really, I skimmed the first half or so. A few observations.

First, this entire opinion is screaming to Justice Kennedy. The number of citations to AMK’s opinion in Lopez–something Orin Kerr was very proud of citing–make this Tony’s game.

Second, the entire section on federalism and US v. Bond fit nicely in with my analysis of Federalism 2.0. Using federalism to protect individual liberty is the way going forward. No surprise, but Bond was a Kennedy opinion.

Third, and this is perhaps the most strategic, what happens next? The United States will almost certainly want to go en banc. Can NFIB and the states petition for cert before the en banc petition? Would a petition for en banc review stay the petition for Cert. Does the Supreme Court really give a damn what pesky Circuit Judges are talking about? I think since the answer to the last question is no, the answer to the first two questions really don’t matter.

I would go for a prompt cert petition, get this to the Court for the October 2011 Term, and, well, let the games begin.

Update: Another observation. It is amazing how both sides can cite Justice Kennedy’s concurring opinion in Lopez to support their position. That tells me that Justice Kennedy really does swing both ways in his own opinions.