Chief Justice John Roberts stunned the nation by upholding the Affordable Care Actmore 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 regulationnow 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 proposedthat the government can't make citizens buy thingshas 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 newnot based on established constitutional principles.
Ranging from early constitutional history to potential consequences, this is the definitive postmortem of this landmark case.
|Publisher:||Oxford University Press|
|Product dimensions:||5.80(w) x 8.40(h) x 0.80(d)|
About 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.
Most Helpful Customer Reviews
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?"