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May 14, 2011
Why the health care law is constitutional but may be overturned
Northwestern University professor of law Andrew Koppelman has a long article in the Yale Law Journal arguing that the constitutional objections that have been brought against the Patient Protection and Affordable Care Act (PPACA) health care reform package have little legal merit but that this does not mean that the current Supreme Court will uphold the law, given the propensity of some of the judges to create convoluted legal justifications to arrive at political conclusions.
The constitutional objections are silly. However, because constitutional law is abstract and technical and because almost no one reads Supreme Court opinions, the conservative majority on the Court may feel emboldened to adopt these silly objections in order to crush the most important progressive legislation in decades. One lesson of Bush v. Gore, which did no harm at all to the Court’s prestige in the eyes of the public, is that if there are any limits to the Justices’ power, those limits are political: absent a likelihood of public outrage, they can do anything they want. So the fate of health care reform may depend on the constitutional issues being understood at least well enough for shame to have some effect on the Court.
He then outlines the objections to the reform and why they cannot be sustained. He concludes with a nice summary.
What will the Supreme Court do? There is no nice way to say this: the silliness of the constitutional objections may not be enough to stop these Justices from relying on them to strike down the law. The Republican Party, increasingly, is the party of urban legends: that tax cuts for the rich always pay for themselves, that government spending does not create jobs, that government overregulation of banks caused the crash of 2008, that global warming is not happening. The unconstitutionality of health care reform is another of those legends, legitimated in American culture by frequent repetition.
The Republican Party, once a party of intellectuals and ideas, is now the captive of crazies driven by blind ideological prejudices in the service of the oligarchy. The Democratic Party has taken the place of the former Republican Party as the subtle agents of the oligarchy.
Comments
An excellent essay by Koppelman, missing only one further point. The Republican opponents of "Obamacare" are the same people who like to campaign against judicial activism in favor of a "strict construction" (read: their construction) of the Constitution. We've always known, of course, that they have no problem with judicial activism when that activism promotes outcomes they prefer.
Thus, we see Republican-appointed federal district court judges striking down an important federal statute and no-one in the GOP says a word about judicial over-reaching. If Democratic-appointed federal judges were to be so bold as to, say, invalidate a law requiring pregnant women to undergo an ultrasound of the fetus before having an abortion (a law which has just passed in FL), there'd by quite a hue and cry, wouldn't there? The Democrats should be calling them on this inconsistency at every opportunity.
From the inception of government-funded healthcare, the US has been prone to adopt incremental change in response to the healthcare needs of the citizenry, with few exceptions. PPACA is one of these rare examples when the federal government has attempted to take a substantial stride toward attaining what is best for the American people with regard to healthcare.
Richard, I particularly admired your ultrasound reference. The inconsistencies and contradictions are deafening, especially at juncture involving healthcare reform. Thanks for the interesting commentary.