Thursday, May 31, 2012

The unknown history of the argument against the health care mandate

Andrew Koppelman

Prof. Michael McConnell, the distinguished constitutional theorist, has weighed in, to my knowledge for the first time, on the health care reform case pending in the Supreme Court.  He writes in a recent Wall Street Journal op-ed that “[t]he drafters and defenders of the health-care law have only themselves to blame for this mess.”  This is because “they did not take seriously their obligation to legislate within the limits set by the Constitution.” 

Prof. McConnell's essay includes some uncharacteristically sloppy statements in his piece, as Sam Bagenstos points out, but he asks a good question.  Why didn’t the Democrats see this trouble coming? 

I’m now working on a book on the constitutional objections to the Affordable Care Act, which will be published in the spring of 2013 by Oxford, and I’ve been researching this very question.  What I’ve found may be surprising.

The Constitutional limits that the bill supposedly disregarded could not have been anticipated.  They did not exist while the bill was being written.  They were invented only in the fall of 2009, quite late in the legislative process.

The rest of this post can be found at, here.

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