by Nicole Flatow
Friday’s appeals court decision striking down the individual coverage provision of the health care reform law did not hinge on any “constitutional bedrock doctrines” so much as on Congress’s alleged imprecise use of terminology, University of Southern California law professor Edward Kleinbard writes in The Huffington Post.
Had Congress framed the law as a “tax,” rather than as a “penalty” on those with certain incomes who do not buy health insurance, “the result apparently would have within its power,” even though the penalty envisioned by Congres
s is collected through the tax structure, Kleinbard writes.
“We now must hope that the Supreme Court will see past the formalism of this analysis and conclude that the legislation in substance is completely constitutional,” he adds.
Underlying the court's reasoning is the belief, also reflected in the recent debt-ceiling negotiations, that “government activity is largely hostile to prosperity and the pursuit of happiness, and therefore the less of it, the better,” Kleinbard writes.
Kleinbard goes on to explain why this view is wrong, in his full column here. And The Atlantic’s Andrew Cohen adds to the discussion, articulating why this view has no place in a court decision.
In his article, Winkler traces the surprising and contradictory history of the U.S. right to bear arms, starting with the Founding Fathers’ own version of an “individual mandate” that required many citizens to purchase guns, while forbidding gun ownership for slaves, free blacks, and “law-abiding white men who refused to swear loyalty to the Revolution.”
stitutional Accountability Center
the limited exceptions that the Court has recognized to the First Amendment -- Justice Scalia noted obscenity, incitement, and fighting words -- cannot be transmuted into other areas.