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September 08, 2011


NoVA Scout

I agree with Marshall that it makes sense to seek review by the Court sitting en banc. The decision has the scent of a side-step on important issues. The panel's standing analysis may be correct, but, given the importance of the case not just for health care reform, but also for Social Security and other federal programs, it's the kind of thing that should have buy-in from the court as a whole if this is the way the Fourth Circuit is going to line up. The rest of Marshall's press release is generally malarkey. It's very hard to imagine an elected official having so distorted a view of the constitutional history of this country (well, now that I've typed that, I guess the level of understanding of the Constitution is about as bad among our elected officials as it is in the electorate at large - Guys like Marshall just can project their ignorance more loudly than most). Marshall's amicus brief is (like his press release) a Calhounist polemic. His overt suggestion that the decision is politically motivated is unhelpful. Asking for review en banc (even if it is denied) is one way to dispel that concern.

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