Balkinization  

Friday, March 15, 2013

The Tough Luck Constitution and the Assault on Health Care Reform

Andrew Koppelman



Chief Justice John Roberts stunned the nation last June by upholding the Affordable Care Act—better 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.

My new book, The Tough Luck Constitution and the Assault on Health Care Reform, 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 a “tough luck” philosophy: if you fall on hard times, too bad for you.  The rule they proposed - government can’t make citizens buy things – has nothing to do with the Constitution, is useless to stop real abuses of power, and was tailor-made to block this one law, after its opponents had lost in the legislature.  They came within one vote of taking health insurance away from 30 million people. 

I also scrutinize the high court’s crimped construction of the commerce clause, which almost crippled America’s ability to reverse rising health-care costs and shrinking access. He also places the act in historical context. The Constitution was written to increase central power after the failure of the Articles of Confederation. The Supreme Court’s previous limitations on Congressional power have proved unfortunate: it 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. The arguments used against Obamacare are radically new—not based on established constitutional principles.

The book is written for the general, nonspecialist reader who would like to understand what just happened in the Supreme Court.  It explains the whole thing in 146 short pages.  Its official publication date is a week away, but heavily discounted copies are already available on Amazon, here.

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