The Radical Argument to Topple the Health Care Reform Law

by Jeremy Leaming

If the Supreme Court’s conservative wing finds a way to ignore precedent and sticks together to strike the integral provision of the Obama administration’s landmark health care reform law, it will egregiously misread the Constitution, write Akhil Amar and Todd Brewster for Constitution Daily.

The two provide reasons why striking the law's minimum coverage provision would represent such a flawed interpretation of the Constitution, which have been reiterated on this blog numerous times. And Amar has authored other articles and spoken often of the Patient Protection and Affordable Care Act and how its minimum coverage provision is constitutional. As noted by ACSblog last week, the majority of experts on the health care law believe the Supreme Court’s right-wing will not carry the day, and the law will be upheld.

Amar and Brewster tackle two of the main arguments against the law’s minimum coverage provision, which staring in 2014 requires Americans who can afford to do so to purchase health care coverage or pay a penalty when filing their income tax returns. As Amar and Brewster note the opponents of the Affordable Care Act have attempted to make the argument that Congress with its passage of the law has taken major swipe at liberty – that is by allegedly forcing people into the health care insurance market.

But Amar and Brewster, in accessible form, explain why the liberty argument fails – mainly because the Constitution provides Congress the powers to tax and spend, and regulate interstate commerce. The Supreme Court, moreover, has since the late 1930s, interpreted those powers to be broad ones.

Amar, Brewster write:

To our friends in the tea party who think the American Revolution is on their side, we say, think again. The rallying cry of the American Revolution in 1776 was ‘no taxation without representation!’ But the 1787 Constitution’s big idea was taxation with representation. Bluntly, the Constitution was a pro-tax revolution. It aimed to give a representative Congress broad power to tax and regulate – to do all sorts of things that Parliament could not properly do precisely because the new Congress, unlike the old Parliament, would be elected by American voters who could vote the bums out if we disliked the taxes, or the duties or the excises or the imposts or the penalties or the regulations. Whatever.

So instead of activist right-wing Supreme Court justices invalidating the Affordable Care Act, the “proper check” on Congress belongs to voters. If the right-wing justices don’t like the health care reform law, they should make their preferences known this November, the two conclude.

Simon Lazarus, of the National Senior Citizens Law Center, wrote extensively of the health care reform law’s opponents’ agenda – to radically constrain the federal government’s ability to address national concerns, such as the nation’s costly and inadequate health care system.

Lazarus in an ACS Issue Brief said the legal challenges to the health care law “constitute a bold bid for historic, sweeping constitutional change. If successful, the challenges would be a major step toward resuscitating a web of tight constitutional constraints on congressional authority that conservative Supreme Court majorities repeatedly invoked during the first third of the 20th century to strike down economic regulatory laws. In the late 1930s and thereafter, the Supreme Court jettisoned this conservative activist jurisprudence, replacing it with constitutional interpretations supporting Progressive Era, New Deal, Great Society, and kindred reforms.”

Right-wing activists, however, have been itching to roll matters back ever since, to hobble the federal government.