Liberals Must Embrace Constitution to Save Legislative Measures and Landmark Reforms, Lazarus Writes

by Jeremy Leaming

The White House need not look far in placing blame if the Supreme Court issues an unfavorable ruling on its signature domestic achievement, writes Simon Lazarus for The New Republic.

We’ll likely know Thursday whether the Obama administration’s landmark health care reform law, the Affordable Care Act, is invalidated or greatly hobbled by the Supreme Court. If that is the outcome, Lazarus, senior counsel to the Constitutional Accountability Center, writes that “leading Democrats” are primarily to blame for failing to defend the constitutionality of the law. They “didn’t even try,” he writes.

Quickly after the Republican politicos lodged lawsuits against the ACA, and in particular the law’s minimum coverage provision, right-wing activists and libertarians went about methodically convincing the pubic that their constitutional attacks were legitimate.

The Right’s legal arguments may have been “legally flimsy,” but they also lent themselves to easily “digestible sound-bites” that eventually helped move the public against the landmark law. The simplistic liberty based argument – if the federal government can mandate individuals to purchase a small amount of health care insurance, then its power is unlimited – was also seemingly adopted by Justice Antonin Scalia during oral arguments in the case.

But liberals’ failure to defend the constitutionality of the health care law was not a unique stumble, Lazarus says.

Indeed, he says it is “only the latest expression of progressive reluctance to make constitutional arguments. That hesitation by liberals has amounted to ceding the Constitution to their political opponents; Republicans clearly have no scruples about wrapping themselves in the mantle of the Constitution and the framers at every opportunity. Progressives must correct this chronic asymmetry if they harbor any hopes of saving contested legislative reforms, including landmark law already on the books, from hostile judges and justices. Smart, well-founded, compelling legal and constitutional arguments must become a central part of progressives’ repertoire, just as they are for the Right.”

Though Democratic leaders failed in properly defending the constitutionality of the ACA, there were a number of liberal activists, scholars and lawyers who did staunchly defend the Constitution and the scope of its commerce clause.

Indeed Lazarus authored two ACS Issue Briefs: one explaining the constitutionality of the minimum coverage provision, the other revealing the opponents’ radical agenda to overturn longstanding federal court precedent that interpreted the Constitution in a manner supporting the federal government’s ability to create laws regulating commerce, and laws for the country’s general welfare. Before that precedent was set, the Supreme Court regularly invalidated federal court efforts to protect workers’ rights and other New Deal measures.