Orin Kerr indulges in his worst habit - straining mightily to find partisan equivalences where there are none:
If you took the public outcry over the Patriot Act in 2001, replaced
“police state” with “socialist state” and replaced “privacy” with
“freedom,” and then replaced the claims of violating the Fourth
Amendment with claims of violating the Commerce Clause, you would
pretty much have the public outcry over the health care law today —
except from the Right not the Left.
But Orin hedges: "Of course, I’m not saying the two laws are the same. [Of course not.] But I’m struck by
the rhetorical similarities of the case made by the laws’ outspoken
opponents."
It's a good thing that Orin hedged, there. It would really have been stupid to compare the laws substantively (police powers versus healthcare) or procedurally (the one passed with a single Democratic "no" vote, the other without a single Republican "yes" vote). Idiotic even. So kudos to Orin for carefully marking that distinction. His readers might otherwise have gotten the wrong idea.
The real point Orin wants to make, then, is about the many "rhetorical similarities." Which of course there are. Thing is, they are similarities between what you hear now from congressional leaders and what you heard then from some guy on the Internets. (Okay, and maybe Randi Rhoades.)
So I guess I'd just want to suggest that the analogy is perhaps one not worth making.
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