Commerce clause

by Nicole Flatow

Eighty-five percent of "a select group of academics, journalists and lawyers who regularly follow and/or comment on the Supreme Court" believe the U.S. Supreme Court will uphold the Affordable Care Act, according to a new American Bar Association poll.

The widespread belief among legal experts that the health care reform law is constitutional is nothing new. As Reuters’ Joan Biskupic writes in a story tracing the history of the health care litigation, legal challenges to the law were initially regarded among many law professors as “implausible” and “frivolous.”

She explains:

As the suits proliferated, many professors, including conservatives, declared the challenges meritless. Charles Fried, a U.S. solicitor general under Reagan and now a Harvard law professor, told Greta Van Susteren of Fox News that he was so confident the individual mandate was valid that he would eat his hat - "bought in Australia ... made of kangaroo skin" - if the law was struck down.

Public buy-in of the concept that the individual coverage provision is unconstitutional increased when the challengers recruited seasoned Supreme Court litigator Paul Clement. Clement shifted the argument away from directly relevant Commerce Clause precedent and toward the slippery-slope message that there are no discernible limits on the government’s commerce power, and that the law is “unprecedented.”

The “It’s unprecedented!” rhetoric has been a rallying cry throughout history for those pushing back against progress, writes UCLA law professor Adam Winkler in a column for the San Jose Mercury News. But it hardly ever succeeds. He explains:

by Jeremy Leaming

The Supreme Court has set aside a large chunk of time later this month to hear argument over the constitutionality of the health care law’s integral provision, but the primary argument against the minimum coverage provisions has been loudly and repeatedly bandied about since the law’s enactment.

The law’s minimum coverage provision requires people who can afford it to obtain a minimum coverage of health insurance or pay a penalty when filing their income tax returns. It’s not the only provision being challenged by the states, but it is the one that has largely driven the right-wing argument that if the federal government can force some people to purchase health care insurance, there’s no limit to what Congress will be able to require individuals to purchase. (Maybe Congress will require everyone to purchase a gun, to protect their lives, from predators. While becoming a target of crime is obviously something that does and can happen anywhere in the world, it is not as certain as humans’ need for medical treatment due to many other causes, many natural.)

As noted on ACSblog numerous times, the liberty argument is not only wobbly, but hypocritical. A former U.S. Solicitor General Walter Dellinger noted at last year’s ACS Convention that many of the folks complaining about the minimum coverage provision are also supporters of laws requiring women to undergo sonograms and listen to propaganda from doctors before receiving an abortion.

In a March 7 piece for The Nation, Georgetown University law school professor and constitutional law expert David Cole provides, as usual for the professor, an accessible explanation about why the argument against the minimum coverage provision is unlikely to be invalidated by the high court.

Not only is the argument against the minimum coverage provision on flimsy ground, it’s also not conservative. The argument is, in reality, “radically libertarian,” Cole writes.

Cole states:

We’ve seen this kind of libertarian constitutional argument before. In the early twentieth century, after the Industrial Revolution had concentrated economic power in employers’ hands, Congress and the states passed many laws designed to protect workers from exploitation. Time and again, the Supreme Court invalidated these statutes. It deemed the federal laws beyond Congress’s power to regulate interstate commerce because they were said to regulate the terms of production, manufacture or mining, all of which were said to precede interstate commerce. And it invalidated state labor laws as infringements on the “freedom of contract” protected by the due process clause.

After the Depression, however, the court “overruled both lines of precedent it abandoned altogether the due process notion that economic regulation infringes on ‘freedom of contract,’” and “it has never since invalidated any law on that ground. And it ruled that in our integrated national economy, Congress is entitled to regulate on the presumption that all economic activity, not matter how local, affects interstate commerce.”