The decision and opinions in the health care cases were bound to be shaped by considerations outside “pure” legal principle—by politics or statesmanship, call it what you will. As it happens, I have a relatively high tolerance for that sort of thing. What strikes me as disappointing about NFIB v. Sebelius is that the statesmanship and politics are so bad.
Today’s Washington Post features a front-page article on “A legal case that’s not so open and shut,” featuring a challenge to a Louisiana state law requiring casket sellers to obtain a license that, inter alia, demands a layout parlor, an embalming room, and the employment of a state-approved funeral director. Plaintiffs are monks at St. Joseph’s Abbey, which lacks any and all of those accoutrements. Still, the monks find both economic and spiritual fulfillment in building caskets. It’s what they do when they’re not in prayer or lounging around the pool: blessed are you a monk swimming. (Belated Catholic joke alert.) What the monks demand to know, along with the rest of us, is where the heck the state gets off passing a law like that.