By Simon Lazarus, Public Policy Counsel, National Senior Citizens Law Center and author of the 2009 ACS Issue Brief, "Mandatory Health Insurance: Is It Constitutional?"
ACS has this morning released a new issue brief by me, "The Health Care Lawsuits: Unraveling A Century of Constitutional Law and The Fabric of Modern American Government." This evening, from 7 - 8:30 p.m., ACS's Virginia Lawyer Chapter and the George Mason University School of Law Student Chapter are co-sponsoring a debate between GMU professor Ilya Somin, who is Editor of the Supreme Court Economic Review, and myself, moderated by Christopher Hayes of The Nation, over the issues vetted in the issue brief.
The brief explains why the pending health care reform challenges constitute a bold bid for historic, sweeping constitutional change. If successful, they would be a major step toward reinstating the web of tight constitutional constraints on congressional authority, known as "Lochnerism," which conservative Supreme Court majorities repeatedly invoked during the first third of the 20th century to strike down economic regulatory laws. (Lochner v. New York, a 1905 Supreme Court decision that held maximum working hours legislation unconstitutional, launched and came to symbolize this period of conservative judicial activism.)
The legal theories behind the lawsuits take dead aim at three bedrock understandings that inform the vision of a democratically governed, economically robust nation-state first reflected in Chief Justice John Marshall's foundational decisions interpreting the constitutional provisions prescribing federal economic policy authority, and reaffirmed in all Supreme Court decisions since the New Deal era. These understandings are:
1. The federal government exists and is empowered to address objectives that states acting individually lack, in the words of the Framers, the "competence" to handle on their own. As Justice Anthony Kennedy expressed the principle, concurring in United States v. Lopez (1995): "Congress can regulate on the assumption that we have a single market and a unified purpose to build a stable national economy."
2. To tackle those "truly national" problems, the federal government has the flexibility to pick solutions that are the most "competent" in practice. In the words of Justice Antonin Scalia, concurring in Gonzales v. Raich (2005) the national government "possesses every power needed to make [its solution] effective."
3. The democratic branches, not the judiciary, have the principal constitutional writ to shape economic policy, and, accordingly, the courts are to defer to Congress and give it the running room necessary to target objectives and craft effective solutions.