I’m in wholehearted agreement with Ed Kilgore’s point, made in his post on Romney’s stake in Judge Robert Vinson’s ruling on the Patient Protection and Affordable Care Act (ACA), that, “conservative commitment to federalist principles is almost certainly being overrated on this issue as on many others over the years. …federalism is primarily a mean to a desired end, and is disposable otherwise.”
Ed cites conservative support for a constitutional amendment to ban abortion and the high court’s decision in “Bush v Gore” as the leading examples of conservatives’ extravagant flexibility on federalist arguments. I would also cite the latter as cause for concern that the Supreme Court’s partisan conservatives may set a new standard for activist interpretation when it comes time to rule on the ACA.
As Ed noted, conservatives will use the full range of legal challenges to invalidate the Act. The only question is whether the conservative high court justices are politicized to the point where they will do the Tea Party’s bidding.
Legal commentator Jonathan Turley thinks the Act is weakened by the omission of a “severability clause,” expressly allowing courts to remove provisions of the law as unconstitutional, while allowing the rest of the law to stand. A severability clause was removed from an earlier draft of the bill. However, provisions have been severed in previous rulings on other laws, even when there was no severability clause.
Senator Dick Durbin makes a strong case that the Act is on solid legal grounds. His remarks in a recent television interview provide excellent boilerplate for Dems seeking a succinct rebuttal to the conservative meme that the law is somehow unconstitutional. Here’s the text, followed by a video of the interview with Senator Durbin, one of the Dems’ better soundbite craftsmen:

This law has been challenged in 16 diffferent federal courts. Twelve judges have dismissed the challenges. Four have considered it. Two ruled that it was constitutional, two unconstitutional. So it isn’t exactly a wave of sentiment against the law.

The quote kicks in about a quarter of the way into the interview:

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Smooth.