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.