When the legal challenges to the Affordable Care Act first started taking form, the assertion that Congress did not have the power to regulate the health insurance industry under either the Commerce Clause or the Necessary and Proper Clause was largely seen as an academic argument that had percolated in law schools thanks to a robust presence of the Federalist Society. After all, how could an industry that accounts for approximately 16 percent of economic activity in this country be said not to affect interstate commerce?

There was only one problem with their glorious horses head in the conservative wingnut bed – the White House apparently never disclosed the same documents to the Senate Judiciary Committee when they were requested during consideration of Kagan’s nomination.