An explanation by the Department of Justice of why the health care reform bill is constitutional, described by The New York Times as a change in strategy, is neither new nor surprising, a constitutional law scholar says.
Yale Law Professor Jack M. Balkin, quoted in the article from his remarks at the 2010 ACS National Convention, defended the bill under the government's power to tax and provide for the general welfare during the convention's health care reform panel.
Indeed, "[t]he tax argument is the strongest argument for upholding" the individual-coverage requirement, Balkin told The Times.
White House Communications Director Dan Pfieffer told The Times that the tax and spend clause is an "alternative source of authority," and its primary source remains the commerce clause.
"The Commerce Clause supplies sufficient authority for the shared-responsibility requirements in the new health reform law," Pfeiffer said.
Balkin made clear at the ACS convention, during his participation in the health care reform panel, that the law is justifiable under both the commerce clause and the power to tax clause. A number of other constitutional law professors, including Erwin Chemerinsky and Robert A. Schapiro have also asserted that the health care reform law is on solid constitutional ground under both clauses.
Georgetown Law Professor Randy E. Barnett, who engaged in a spirited discussion with Balkin during the ACS convention panel, responded to Balkin's commerce clause argument by suggesting that the law is an "unconstitutional commandeering of the people."
"Now, you may say that's a novel argument," Barnett said. "And I agree. But why is this a novel argument? Because this has never been done before. ... And something that's never been done before is going to require a novel argument on both sides."
View the conversation between Balkin and Barnett below. Watch video of the entire panel discussion here.
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