Far be it from me to question Justice Breyer’s competence

But I get the impression he doesn’t do his research:

I was listening to the tape-delayed Obamacare oral arguments in the car Tuesday when I first heard Justice Breyer’s Commerce Clause diatribe, and I meant to post something when I got home. But after making dinner and putting the kids to bed, I forgot.

Until today, that is, when I read Jeffrey Anderson’s account of “Breyer’s Missteps.” I think Jeffrey is far too generous to Breyer. Here is a fuller transcript of Breyer’s outburst…

(…)

Breyer alludes to four Supreme Court cases. And he manages to botch the key facts of the case in every single one of them. Let’s start at the top:

“That’s the national bank, which was created out of nothing to create other commerce out of nothing.”

This is a reference to McCulloch v. Maryland, in which the Court upheld Congress’ ability to create the Second Bank of the United States. But, as Paul Clement pointed out in oral argument, Chief Justice John Marshall found that Congress’ power to create the bank came from the Necessary and Proper Clause, not the Commerce Clause as Breyer suggests. Furthermore, Congress did not compel individuals to deposit money in the bank, only that Congress could create it in order to better manage its financial affairs.

Be sure to read the rest. If that’s the quality of argument coming from the progressive side of the bench, the ObamaCare law is not long for this world.

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