I read the Ultramercial opinion and the hand-waving. Here’s what’s going on: the court realizes that if you read the statute literally, 101 is not a defense. On the other hand, if you reason that, somehow, it is a defense, then it is subject to the presumption of validity. To avoid that, the court is reasoning that this judicial exception to 101 is “different” than everything else — including utility, which is in 101.
Read. The. Statute. Judicial activism at its worst by the Supreme Court is causing good judges everywhere to ignore the Constitution.
And let me be clear: there are doctrines — constitutional avoidance being one of them — which a court might be able to use to come up with some sort of rational reading of 101 to be limited by the Constitution, but that tortuous path is very, very different than this nonsense.