Picture the scene (I). Its 4 am, November 1st. 4 young girls in their Halloween costumes are being rushed to the hospital after the tragic stampede that took place minutes ago at the “Madrid Arena”, a huge disco in which more than 10,000 people gathered to listen to a super DJ which goes by the name of “Aoki”. You can read here the whole story. Three of the girls were pronounced dead on arrival, and the fourth, although not dead yet, suffers from devastating brain injury due to the anoxia. She is placed on a ventilator and the subsequent tests confirm the horrible prognosis. Her family, members of the ultraorthodox catholic sect known as “Opus Dei” (remember “The Da Vinci Code”?), agrees to the withdrawal of Belen’s life sustaining treatment and to donate her organs. Pedro Almodovar would not have written the script in a better fashion. But wait… Continue reading
Professor Elhauge‘s provocative little book, Obamacare on Trial, has many of us rethinking and revisiting the NFIB v. Sebelius decision, and I had a chance to attend the nice book talk featuring Professor Elhauge and several interlocutors last week.
Chief Justice Roberts’ opinion in the case is not prominently textualist (since contemporaneous dictionary definitions of “regulate” are unhelpful to him, as Elhauge shows) nor historicist (since the founders themselves imposed healthcare insurance purchase mandates, as Elhauge also shows). Instead, Chief Justice Roberts repeatedly relies on a slippery slope style of argument (or a reductio ad absurdum), not unlike those I heard from Fox TV commentators and friends on Facebook in the months prior to the decision. Below the fold, I suggest that this form of argument is incoherent given the larger holding of the case.