Sunday, June 1, 2014

The health care case, again: Koppelman on Dorf on Koppelman // Balkinization

Five Justices of the Supreme Court, including the Chief, agreed that the entire Affordable Care Act could not be justified by the commerce clause.  The conservatives had, of course, voided the guns near schools law - no need for federal action.  But in health care?  Yet Georgetown's Randall Barnett developed an off the wall argument that nearly stuck:  the federal government cannot compel you to buy something.  Koppelman disposes of that here:
Under settled law at the time that the ACA was enacted, the mandate is obviously constitutional. That is why the Democrats paid so little attention to the constitutional objections. Here is the case for its constitutionality under existing precedent, in four sentences.
Insurance is commerce.
Congress can regulate it.
Therefore, Congress can ban discrimination on the basis of preexisting conditions.
Under the Necessary and Proper Clause, it gets to decide what means it may employ to make that regulation effective.


Balkinization: The health care case, again: Koppelman on Dorf on Koppelman
by AndrewKoppelman
"Michael Dorf’s generous review in the Texas Law Review of my book, The Tough Luck Constitution and the Assault on Health Care Reform, agrees with me that what I call “Tough Luck Libertarianism” - the idea that if you get sick and can’t pay for it, the state has no right to help you - played a large role in the Court’s decision in the health care case.  Dorf however thinks I haven’t given enough weight to two other factors:  federalism and “nonpartisan framing” – the presentation of partisan arguments in nonpartisan legal terms.  When these are taken into account, the constitutional challenge no longer seems to him as frivolous as he once thought (and I still think) it to be. The law review has now published my response to the article, here.  In it, I agree with Dorf that it’s important to consider, as sympathetically as you can, arguments with which you don’t agree.  But there are dangers.  Dorf’s generous spirit has led him to expand, really to explode, the bounds of the frivolous."

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