Hugh,at Corrente, has an interesting post on the Obamacare sophistries of the Roberts' court and the sophistries of Roberts himself. The constitutional issues are not my strong suit and I feel a little badly that I don't particularly care about them.
What does tickle my funny bone is the legalistic counter-argument he got. It's filled with the flummery of enumerated powers and prerogatives. It has the ring of expertise. I'll bet it would be very easy to find scholars and courts who find it compelling—lots and lots of courts, with judges tripping over their robes in a rush to find it compelling.
Whether something is right or wrong is immaterial. They just don't apply. I think they should, but they don't. This might leave a pragmatic, utilitarian consideration, along the lines of, "is this thing workable towards a greater good, within the system as is actually exists?". That can be argued, although I think it gets into speculative fantasy land very quickly, but one way or the other it doesn't apply either. There's no room for it; no framework for its consideration. And the only fact that obtains is the demonstrable fact that this is now the law.
The expertise in flummery is a big part of how union pension plans get adjusted and readjusted and handed over to the PBGC and then melt away. How NAFTA and all the other "free trade" agreements knee-capped labor. How card check became a non-starter. There are always plenty of stalwart Democratic labor lawyers—with the relevant expertise, credentials and everything—and they can always explain, bless their hearts.
Whatever will they do when they finally kill their host?