Constitutionality of Health Care Law ‘Unambiguous,’ Say More Than 100 Leading Scholars

January 18, 2011

Highly politicized efforts to repeal the landmark health care law have led a group of more than 100 leading legal scholars from across the country to join together in a statement reaffirming the constitutionality of the Affordable Care Act and calling attention to the dangers of "throwing out nearly two centuries of settled law."

"I've never seen such an outpouring of support among law professors before," UCLA School of Law professor Adam Winkler said during a press call today hosted by the American Constitution Society and the Center for American Progress. "Legal experts nationwide are worried about the bald-faced judicial activism of the lower court in Virginia."

In the statement, the law professors make clear that "Congress's power to regulate the national healthcare market is unambiguous." The professors cite recent opinions by Justice Antonin Scalia and Chief Justice John Roberts that reinforce the broad power contained in the Constitution's Commerce Clause and "easily" encompass the health care law's minimum coverage provision.

 "Nothing in the Constitution's text, history, or structure suggests that, in exercising its enumerated powers, Congress is barred from imposing reasonable duties on citizens on the theory that such requirements amount to regulating ‘inactivity,' " the statement explains.

Indeed, the Framers would be surprised by this view of Congress's powers; they enacted an individual mandate in the Second Militia Act of 1792, which required all men eligible for militia service to outfit themselves with a military style firearm, ammunition, and other equipment, even if such items had to be purchased in the marketplace. Today, individuals are still obligated by federal law to perform other actions, like serve on juries, file tax returns, and register for selective service, among other duties.

During the press call today, University of North Carolina law professor Bill Marshall, a former ACS Board Member, emphasized the devastating impact that a decision striking down the health care law could have on the nation's regulatory system.

"We're talking about the regulation of a $2 trillion industry in this country," Marshall said. "The argument that the federal government cannot regulate what is one of the most important aspects of interstate commerce in this country is considerable and could be devastating not just to health care but other kinds of government regulation as well."

American Constitution Society Executive Director Caroline Fredrickson, who participated in press the call, also noted that this challenge has "a very radical aspect to it."

"The arguments that are being made in the challenges really go to a much broader set of statutes that I think Americans take for granted, and if this were to prevail, I think we would see a radical change in the way that the nation is able to govern itself," Fredrickson said.

Read the letter signed by over 100 law professors here, and listen to this morning's press call here.