The Tough Luck Constitution and the Assault on Health Care Reform
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Chief Justice John Roberts stunned the nation by upholding the Affordable Care Act--more commonly known as Obamacare. But legal experts observed that the decision might prove a strategic defeat for progressives. Roberts grounded his decision on Congress's power to tax. He dismissed the claim that it is allowed under the Constitution's commerce clause, which has been the basis of virtually all federal regulation--now thrown in doubt.
In The Tough Luck Constitution and the Assault on Health Care Reform, Andrew Koppelman explains how the Court's conservatives embraced the arguments of a fringe libertarian legal movement bent on eviscerating the modern social welfare state. They instead advocate what Koppelman calls a "tough luck" philosophy: if you fall on hard times, too bad for you. He argues that the rule they proposed--that the government can't make citizens buy things--has nothing to do with the Constitution, and that it is in fact useless to stop real abuses of power, as it was tailor-made to block this one law after its opponents had lost in the legislature. He goes on to dismantle the high court's construction of the commerce clause, arguing that it almost crippled America's ability to reverse rising health-care costs and shrinking access.
Koppelman also places the Affordable Care Act within a broader historical context. The Constitution was written to increase central power, he notes, after the failure of the Articles of Confederation. The Supreme Court's previous limitations on Congressional power have proved unfortunate: it has struck down anti-lynching laws, civil-rights protections, and declared that child-labor laws would end "all freedom of commerce, and . . . our system of government [would] be practically destroyed." Both somehow survived after the court revisited these precedents. Koppelman notes that the arguments used against Obamacare are radically new--not based on established constitutional principles.
Ranging from early constitutional history to potential consequences, this is the definitive postmortem of this landmark case.
Ohlendorf, Steve Presser, Neil Siegel, Nadav Shoked, and Ilya Somin. Special thanks to Kopel and Somin for repeatedly pressing me with smart objections by email after the conference. A writer’s best friends are those who frankly bring him the bad news. I am also grateful for comments from Bruce Ackerman, Jack Balkin, David Bernstein, Tony D’Amato, Senator Tom Daschle, Erin Delaney, Richard Epstein, Brian Glassman, Linda Greenhouse, Mark Hall, Tim Jost, Orin Kerr, Rogan Kersh, Margaret Koppelman,
endorsing the view that the mandate was beyond the commerce power. (At this point during his reading of the opinion, CNN and Fox News prematurely announced that the Court had struck down the law.) But he then upheld the mandate as a tax, because it is only enforced by a monetary penalty withheld from tax refunds. The bottom line: the mandate is upheld. The Court struck down a provision that, if states did not comply with a massive expansion of Medicaid coverage, they could lose all their Medicaid
alternative. Even if a State believes that the federal program is ineffective and inefficient, withdrawal would likely force the State to impose a huge tax increase on its residents, and this new state tax would come on top of the federal taxes already paid by residents to support subsidies to participating States. Th is has broader implications than they acknowledge. They have not just described the Medicaid expansion. They have described Medicaid itself. As they note, Medicaid is by far the
Republicans would have invented a different constitutional rule, which that mechanism would have violated? Th is creates a problem for the conscientious judge. If I get to make new rules that just happen to be politically convenient, how can I (much less everyone watching me) know that I have not become a corrupt political tool? (The liberals on the Court didn’t have this problem, because, as Ginsburg’s dissent made clear, the ACA can easily be upheld by straightforwardly applying longstanding
to go. If someone is indigent and in need of medical care, that person might perhaps be aided by private charity, but it would be unjust for the state to commandeer taxpayer dollars to aid them, or to require private parties to do so. Scalia’s “don’t obligate yourself to that” is phrased in the imperative. It itself states a moral obligation. What conception of justice could require that surprising result? Here we need to briefly review the most famous debate in modern political philosophy. The