http://www.biggerpockets.com/renewsblog/2008/09/27/paulson-rescue-plan-whats-in-it-what-dissenters-want-in-it/ Learn, Network, Invest Sun, 12 Feb 2012 02:59:04 +0000 hourly 1 http://wordpress.org/?v=3.3.1 http://www.biggerpockets.com/renewsblog/2008/09/27/paulson-rescue-plan-whats-in-it-what-dissenters-want-in-it/#comment-61520 Alex Sun, 23 Nov 2008 14:56:52 +0000 http://www.biggerpockets.com/renewsblog/?p=1550#comment-61520 You are correct,The Commerce Clause was raised and substantially discussed during oral arguments. Its “absence” from the briefs was explained as a background for the tactic of the suit, i.e., they assumed the Act was constitutional under the Commerce Clause to attack it on other bases. In other words, Act was conceded to be constitutional under the Commerce Clause for the purposes of the suit and the court assumed as much, for the sake of argument, in its ruling. I doubt Justice Kennedy is trying to make a sub silentio ruling and Scalia and Thomas are simply making that clear (in a concurrence that praises the majority’s proper application of Casey, no doubt, without overruling Stenberg). You are correct,The Commerce Clause was raised and substantially discussed during oral arguments. Its “absence” from the briefs was explained as a background for the tactic of the suit, i.e., they assumed the Act was constitutional under the Commerce Clause to attack it on other bases. In other words, Act was conceded to be constitutional under the Commerce Clause for the purposes of the suit and the court assumed as much, for the sake of argument, in its ruling. I doubt Justice Kennedy is trying to make a sub silentio ruling and Scalia and Thomas are simply making that clear (in a concurrence that praises the majority’s proper application of Casey, no doubt, without overruling Stenberg).

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