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June 29, 2012

Federal Primacy in Action

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On Monday afternoon, after the Supreme Court had issued its decision on the Arizona immigration law with Chief Justice Roberts concurring with the majority I mentioned to a friend I was visiting with that Roberts was turning out to be a federal primacy jurist. And as we discussed his positions I got a chill when the conversation turned to speculation on what the Court would do about the Affordable Care Act aka Obamacare. It suddenly occurred to me that Roberts might consider the penalty for not buying insurance as a tax. I hate it when I am right!

The decision this morning to uphold Obamacare confirms both the federal primacy observation and the determination that a tax by any other name is still a tax. It is beginning to remind me of the turn the court took under the Warren Court of the 50's and 60's. Suddenly the Court's majority seeks to uphold the concept of federal primacy. Suddenly the Court's majority appears to look for ways to sustain Congressional Acts rather than confront them.

As I have already noted in previous postings the bulk of the Arizona immigration decision also established federal primacy at the expense of state's rights - more basically the state's rights to enforce the law be it federal state or political subdivision in nature.

And now the Court's majority has again taken the same position. These two decisions when taken in a global context are as remarkable and epochal as anything combination of decisions made by the Warren Court two generations ago. It sends a rather chilling message of Congressional freedom to absorb more state authority within the purview of federalism. It is a new context.

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