In light of Chief Justice Roberts‟s tie-breaking vote to uphold the Patient Protection and Affordable Care Act (ACA) as a legitimate exercise of Congress‟s taxing power, it is worth asking whether the arguments of liberal textualists played any role in shaping the historic decision. After all, an amicus brief filed by Jack Balkin and other constitutional law scholars had argued that the mandate is clearly authorized by Congress‟s authority under Article I, section 8 of the Constitution “[t]o lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” Did Balkin‟s brief help persuade Chief Justice Roberts to uphold the Act?
How New Is the New Textualism?,
Yale J.L. & Human.
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