by Jeremy Leaming
According to at least some polling the Tea Party infused meme that the landmark health care reform law is constitutionally flawed because the law’s minimum coverage provision is a wild overreach of congressional power has had some success. But pollsters, thankfully, won’t determine whether the law stands or falls.
The Supreme Court, which hears oral argument in the states’ challenge to the Affordable Care Act in late March, of course will have the ultimate say in his matter. And according to an array of constitutional law experts it’s a matter that shouldn’t be a difficult call.
In a piece for the Federalist Society’s Harvard Journal of Law and Public Policy, UNC law professor and constitutional law expert William P. Marshall details why the ACA fits within the nation’s “constitutional culture,” as defined by the l
ate Chief Justice William Rehnquist. (In Planned Parenthood v. Casey, Marshall writes, that for Rehnquist “constitutional culture is akin to the beliefs about constitutional meaning that are embedded in what he calls the ‘national psyche.’”)
Opponents of the health care law say it goes against the nation’s commitment to “rugged individualism,” and against some conservatives' distrust of a strong central government.
“But the individualist claim,” Marshall (pictured) writes, “runs up against a number of harsh realities that diminish its force." For starters, societal changes since the 1930s have worked to undermine the notion of a society held together by rugged individualists.
Marshall, a former ACS Board member, notes, “The entry costs needed to succeed in this economy, for example, are far greater because of the shifts in the types of jobs that are available and because of the greater expectations placed on those joining the workforce. One reason for this is education. Succeeding in the current economy requires sophisticated training that cannot be mastered by the individual acting alone.”
“Washington’s partisan gridlock has stymied not just the policy process, but also the responsibility of the Senate to give advice and consent in the nomination process,” Robinson said. “Our federal court system —indispensable to the nation’s economy and the justice and freedoms we cherish — is being quietly undermined by needless deadlock.”
