Clerking for two Supreme Court justices taught Ohio Attorney General Richard Cordray about the value of precedent, he said this week, explaining why his state would not join the suit of 13 attorneys general challenging health care reform. In the late-1980s, Cordray served in the chambers of Justices Byron White and Anthony Kennedy, whose constitutional law teachings he referenced in his statement regarding health care reform.
The suit filed by 12 Republican attorneys general and one Democrat has raised hackles, though experts have questioned its chances for success. The suit has caused public clashes between the governors and attorneys general of six states.
"Anybody who proposes something like this is either ignorant -- I mean, deeply ignorant -- or just grandstanding in a preposterous way," said Charles Fried, former solicitor general under President Ronald Reagan. "It is simply a political ploy and a pathetic one at that."
"It's bad enough when TV pundits proclaim that what case law and the Constitution say doesn't matter; the only important thing is what the public wants," writes Dahlia Lithwick at Slate, assessing the arguments presented in the attorneys general's suit. "But when attorneys general start to offer up such arguments in legal pleadings, it transcends legal activism and starts to look like pure ideological yearning.
"And that's a particularly cynical enterprise for someone who preaches fidelity to the law and Constitution as written," Lithwick concluded.
The constitutionality of the Affordable Care Act was examined in an ACS Issue Brief by Simon Lazarus, Public Policy Counsel for the National Senior Citizens Law Center. In "Mandatory Health Insurance - Is It Constitutional?," Lazarus concludes that the Act's mandatory insurance provisions challenged by the AGs' suit are well within Congress' powers delineated by the Constitution.
"No doubt, in some quarters, opponents' libertarian views are deeply felt," Lazarus writes. "But they have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting those provisions.
[Image via kjd.]