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April 8, 2010 [LINK / comment]

Health care & the Constitution

Sooner or later, the United States Supreme Court is going to have to take up the issue of whether the recently-enacted health care "reform" legislation violates the U.S. Constitution. Virginia Attorney General Ken Cuccinelli and a dozen or so of his counterparts in other states are filing lawsuits that challenge the authority of Congress to impose an insurance mandate on all individuals. I have no idea how the justices will rule, but it will probably be a 5-4 decision one way or the other, with Anthony Kennedy providing the swing vote.

Thanks mainly to Facebook friends, I've come across a wide variety of legal analyses over the past couple weeks. Here are some of the best:

A roundtable among experts, "Is the Health Care Law Unconstitutional?" at the New York Times; it includes Prof. Randy Barnett, of Georgetown University.

Leon H. Wolf, "A Brief Analysis of the Legal Challenges to Obamacare" at

Brian D. Galle, "Conditional Taxation and the Constitutionality of Health Care Reform," at

It will take a long time to fully absorb and digest all the arguments pro and con. I try to keep an open mind about the issue, but one thing gives me reason for deep worry: Those people who downplay the threat to freedom from Obamacare, and insist that existing court precedents must be upheld, as though they were graven in stone, seem to ignore the strong likelihood that a ruling in favor of the new law will itself create a wholly new precedent for an even larger-scale role of government in running our private lives. I would need to be convinced that permitting the individual insurance mandate would not be a big step toward more and more such mandates in the future.

In a debate on the Supreme Court's role on Bruce Bartlett's Facebook page yesterday, I wrote:

Bruce candidly expresses a widely-held view of the Supreme Court's role which, ironically, subverts our constitutional polity. I dare say it is an authoritarian view. As John Agresto makes clear in "The Supreme Court and Constitutional Democracy," which Martha Derthick had us read at U.Va., there is NO "supreme," final arbiter of what is or is not constitutional in the American system of government. What we have is a constant tug of war involving the three branches of government AND the public.

[clickable hyperlink:]

But back to the original point, the oft-stated notion that there is "no question" about the constitutionality of HCR strikes me as bizarre. If there is no question, then why are people debating it?? Are you afraid of the consequences if, somehow, the Supreme Court actually did its duty and upheld the Constitution in the way it was meant to be understood?

That wacky Glenn Beck

There is a place in this world for painfully earnest and dull observers of the political scene, such as moi, as well as "color commentators" such as Al Franken (at least until he became a senator) and Glenn Beck, whose forte is irony and sarcasm. Among the latter group, Mr. Beck has just admitted that he is in the entertainment business. Well, Rush Limbaugh has said similar things, so maybe it's no big deal. But what Beck said in an interview for (hat tip to Andrew Murphy) is disturbing: "I could give a flying crap about the political process." (???)

In the past I referred to Beck as "sporadically cogent," but more often he is "unhinged." The latest admission makes one wonder whether his opinions should be taken seriously at all.

Posted (or last updated or commented upon): 09 Apr 2010, 12: 53 AM

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