Health Care Law and U.S. History

By Lane, Charles | Pittsburgh Post-Gazette (Pittsburgh, PA), June 27, 2012 | Go to article overview

Health Care Law and U.S. History


Lane, Charles, Pittsburgh Post-Gazette (Pittsburgh, PA)


We have one day until the Supreme Court rules on health care -- two days until we find out whether Akhil Amar's life has been a fraud.

Mr. Amar is the Yale constitutional law professor (my former teacher), who recently told The Post's Ezra Klein that a 5 -4 ruling striking down Obamacare would destroy his faith in the court.

"If they decide this by 5-4," Mr. Amar said, "then yes, it's disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn't. What mattered was politics, money, party and party loyalty."

Mr. Amar's cri de coeur was a dramatic but otherwise typical expression of sentiment in legal academia, where it is widely assumed that no serious person could doubt the law's constitutionality.

Professors have stuck to that view even after a couple of lower federal courts struck down the 2010 law wholly or in part, and after oral arguments in April showed that the five most conservative Supreme Court justices might be leaning against the law, too. Hence Mr. Amar's angst.

Knowing Mr. Amar's eclectic brand of liberalism, I wouldn't charge him with reading his ideology into the Constitution, though I can't say the same for all law professors, who tend to be much more liberal than the general public.

Remarkably few of them have shown the perspicacity of Mr. Amar's Yale colleague Stephen Carter, who has written: "Both sides have a point. The mandate to purchase health insurance does indeed run counter to the libertarian strain of the American tradition, and the arguments in support of federal power don't have a logical stopping place. On the other hand, one must also recall the egalitarian aspects of the American tradition."

But assume the professors are arguing in good faith, and correctly interpreting precedent: that until now Congress could enact almost any law in the name of regulating interstate commerce, up to and including a limit on subsistence wheat farming.

What, then, led the academics to misread this case?

In a sense, they resemble the conservative leaders of the bar at the dawn of the New Deal. President Franklin Roosevelt's alphabet soup of federal programs ran counter to established doctrine denying the constitutionality of economic and social legislation, state or federal. Steeped in that tradition, many legal experts recoiled in horror at FDR's plans. …

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