Does anyone else remember the commentary from 2010 when Virginia passed its law stating that no resident of the state would be required by an act of Congress to purchase insurance? I distinctly remember listening to NPR at the time and them having only one law professor on the program discussing this. I remember that he said the act was absurd because of course under the Supremacy Clause a state legislature cannot overrule the federal government.
I remember how angry this commentary made me because it was extremely dishonest. It is simply impossible that any attorney could hear about the Virginia statute and not immediately understand that it was passed at least in part to get around the standing problem. It was partly a political statement to the citizens of Virginia, but it was clearly also passed with the health care lawsuits in mind. The standing issue is a very serious legal hurdle that the challenges to Obama Care have to pass. (And because many judicial conservatives have typically taken a very narrow approach to standing, its an issue that has the possibility of pulling off some of the conservatives out of the "unconstitutional" camp.)
To put this differently, its not that these legal professors failed to correctly predict how the courts would rule, or got their analysis wrong. Its that they purposefully and dishonestly decided not to discuss one very valid and important purpose of these statutes, which was to in essence try to create standing to challenge the mandate where the states wouldn't otherwise have had it.
If anyone can find links to any of these old interviews discussing the mandate, particularly the ones on NPR, please do post them in the comments. This sort of thing is the kind of thing that conservatives need to focus on in connection with the debate over whether federal tax dollars should go to fund NPR. NPR does some things pretty well, but at the end of the day your tax dollars are going to fund an organization that not only has an obviously liberal bias but that basically tries to hide its political arguments in the guise of "expert analysis" so that they are less likely to be challenged.
(And by the way, I understand the way they do this on Obamacare, because I have the legal training to understand what's going on. But I don't have the training to understand what their "experts" are doing on climate change. I strongly suspect the same thing is going on, and its not just a coincidence that they start the global warming stories every summer and lay off them during the winter.)