Ramesh discusses something that doesn’t get enough discussion:

The argument that has not been made (or at least not made often) is that the whole legislation — not just the individual mandate — exceeds the constitutional powers of the federal government. This classic conservative position has gone unvoiced. I suspect that it has done so because, again, of the influence of judicial supremacy. We have been trained to think that saying that an overhaul of American health care exceeds the legitimate powers of Congress is equivalent to calling for the judicial invalidation of health-care legislation (along with much of modern government, by implication). Since that would be absurd to call for, we don’t say it.

At the risk of being thought quixotic, let me suggest that we need to revive a dormant tradition of legislative reasoning and argument about the Constitution. In this kind of constitutional reasoning considerations that it would be improper for judges to invoke have their place.

What a concept. This is annoying, too:

…too many commentators have dwelt on the question of how the courts are likely to treat the legislation — or, at best, what they should do consistent with their precedents — rather than on the distinct question of whether the Constitution, properly interpreted, grants Congress the power to enact this legislation.

It’s partly because many of the commentariat don’t even understand the Constitution, nor care about it much, at least when it comes to the government running the economy. But it’s also a symptom of the simple-mindedness of the media. It’s like a political campaign where they report on the horse race — who’s ahead or behind — rather than what the candidates actually say about the issues, with an analysis of it. Yes, it’s not unimportant to speculate about how a court will rule, but it’s not as important as analyzing the actual legal and constitutional issues, but they’re either incapable of that, or uninterested.