The American Bear


Constitutional law | Reclusive Leftist

I’m discovering now that some left-wing bloggers don’t understand the Court’s job in a case like the Affordable Care Act. These bloggers believe that the ACA is bad policy; they would much rather have single-payer healthcare. I agree with them on that. However, these bloggers also seem to think that because the ACA is bad policy, it would have been better for the Court to strike it down. This is a profound misunderstanding of the Court’s role.

The job of the Supreme Court is not to determine whether laws are desirable or effective. The job of the Court is to rule on constitutionality. The Affordable Care Act was challenged as being unconstitutional: its opponents charged that Congress did not have the power under the Constitution to enact the legislation. The only way the Court could strike down the ACA was by finding it unconstitutional.

The Affordable Care Act is not unconstitutional. The legal challenges to it consisted of right-wing intellectual garbage largely cooked up in the past few years explicitly to oppose Obamacare. In contrast, the Administration’s triple arguments for constitutionality (under the Commerce Clause, the Necessary and Proper Clause, and the Taxing Clause) all fit comfortably within longstanding jurisprudence. There’s a reason that legal scholars could see no constitutional problem with the ACA when it was passed; there wasn’t any. (I again urge everyone to read Justice Ginsburg’s concurrence, which is a model of clarity on the legal issues and reasoning involved.)

… If you dislike the Affordable Care Act, the answer is to work towards a better legislative solution. The answer is not to have the law struck down for partisan reasons by an unprincipled renegade Court acting on nothing but its own political sympathies.