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.”
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:
Throughout American history, opponents of reform have used this argument to claim that innovative legislation fundamentally undermines the Constitution.
The justices of the Supreme Court rarely buy into such overheated, sky-is-falling rhetoric. If they did, we'd still have a 19th century economy where corporations were largely immune to regulation, businesses could engage in racial discrimination, and industry could freely pollute our environment.
Challengers nonetheless “emphasize the novel argument because they have little else on which to rely,” he writes. After all:
We are mandated to file tax returns, serve on juries and register for the draft. Indeed, the Founders would be surprised to learn that Congress doesn't have the power to require people to purchase a product. In 1792, they passed a federal law mandating that people buy guns and ammunition as part of their duties in the citizen militia.
Mandates aren't new, but neither is the argument of health care reform's opponents. What would really be unprecedented is for the Supreme Court to hogtie Congress to the use of 18th century regulation to solve 21st century economic problems.