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The Tough Luck Constitution and the Assault on Healthcare Reform

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Chief Justice John Roberts stunned the nation by upholding the Affordable Care Act—more commonly 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.

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The Tough Luck Constitution and the Assault on Health Care Reform

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Chief Justice John Roberts stunned the nation by upholding the Affordable Care Act—more commonly 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.

In The Tough Luck Constitution and the Assault on Health Care Reform, Andrew Koppelman 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 what Koppelman calls a "tough luck" philosophy: if you fall on hard times, too bad for you. He argues that the rule they proposed—that the government can't make citizens buy things—has nothing to do with the Constitution, and that it is in fact useless to stop real abuses of power, as it was tailor-made to block this one law after its opponents had lost in the legislature. He goes on to dismantle the high court's construction of the commerce clause, arguing that it almost crippled America's ability to reverse rising health-care costs and shrinking access.

Koppelman also places the Affordable Care Act within a broader historical context. The Constitution was written to increase central power, he notes, after the failure of the Articles of Confederation. The Supreme Court's previous limitations on Congressional power have proved unfortunate: it has 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. Koppelman notes that the arguments used against Obamacare are radically new—not based on established constitutional principles.

Ranging from early constitutional history to potential consequences, this is the definitive postmortem of this landmark case.

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Editorial Reviews

From the Publisher
"Andrew Koppelman has magnificently captured the current legal, political and policy-related lay of the land in Washington. His insightful analysis here should be mandatory reading for anyone concerned about the future of health care in America."—Tom Daschle, former Senate Majority Leader

"This book is a tour de force. It offers a compendium of telling facts and provocative arguments concerning the Affordable Care and the legal and political debates surrounding it. Koppelman persuasively unmasks a political and constitutional vision that says 'Tough Luck!' to the disadvantaged and reveals how that vision almost killed the health care act." —Richard Fallon, Harvard Law School

"This is the definitive book on the Affordable Care Act decision. Koppelman explains clearly and concisely the history of the lawsuit, the mandate it challenged, and the constitutional provisions on which the challenge was based. Most importantly, Koppelman explains the decision's implications for the future." —Timothy Jost, The Washington and Lee University School of Law

"Unlike the Affordable Care Act itself, Koppelman's Tough Luck Constitution is a short and enjoyable read. Like the Act, this book speaks truth about the public interest and offers a hopeful vision for the health care reform." —William Eskridge, Yale Law School

"Professor Koppelman's analysis of the constitutional fight to stop health reform is must-reading for anyone who desires a deeper understanding of the Constitutional story behind one of the most intense legal battles ever waged over a seminal advance in U.S. social welfare policy. Neither health policy nor constitutional theory and practice will ever be quite the same." —Sara Rosenbaum, George Washington University School of Public Health and Health Services

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Product Details

  • ISBN-13: 9780199970025
  • Publisher: Oxford University Press
  • Publication date: 3/22/2013
  • Pages: 208
  • Sales rank: 1,443,748
  • Product dimensions: 5.80 (w) x 8.40 (h) x 0.80 (d)

Meet the Author

Andrew Koppelman is John Paul Stevens Professor of Law, Northwestern University. His books include Defending American Religious Neutrality, A Right to Discriminate?, and The Gay Rights Question in Contemporary American Law.

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Table of Contents


Chapter One: The Road to the Mandate
Origins of health insurance
After Medicare and Medicaid
Chapter Two: Appropriate Constitutional Limits
The enumerated powers
Necessary and Proper
The unhappy story of judicially crafted limits
A Constitution of subsidiarity
Why the mandate is constitutional
Chapter Three: Bad News for Mail Robbers
The invention of the constitutional objection
Barnett's libertarianism
The path to the Supreme Court
The Broccoli Horrible
From court to Court
Chapter Four: What the Court Did
The mandate
Explaining John Roberts
Chapter Five: Where It Hurts
So what happens to the Medicaid expansion?
Your tough luck

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Customer Reviews

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  • Posted May 8, 2013

    This book concerns itself with the challenge to Obama's Affordab

    This book concerns itself with the challenge to Obama's Affordable Healthcare Act (Obamacare) in the lower Federal Courts, and, primarily, in the Supreme Court.

    The information is often from a legal perspective which I, not being a lawyer, had a little trouble with. It is not, however, so dense as to be only written for people specializing in Constitutional Law.
    I was expecting a history of the whole range of opposition to Obamacare--right wing media, the Tea Party, Republican politicians, etc. What I got was just the legal arguments against the mandate for every citizent o purchase healthcare, and other aspects of the law as well. This turned out to be useful information and an interesting story all in and of itself. Just why did Justice Roberts go against all of his political instincts to uphold the law in general, and the mandate in particular? How could he agree with the main argument against the mandate, and yet still find it contitutional? Even Supreme Court specialists were confused and astounded by the ruling in this case, and a book shedding light on the case and its outcome is welcome.
    Though the author shows proper respect for opponent's arguments against Obamacare in the lower courts and the Supreme Court, the following statement near the end of Chapter Four is revealing of Koppelman's attitude towards the legal challenge to Obamacare:
    "Isn't it odd that the mandate, which a few years earlier was the Republican alternative to Clinton's health plan, suddenly became, once Obama supported it, an intolerable intrusion on a new, unenumerated liberty? May we not suspect that, if Obama had rejected the mandate and chosen a different mechanism, those wonderfully creative Republicans would have invented a different constitutional rule, which that mechanism would have violated?"

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