Wednesday, March 28, 2012

Obamacare is Unconstitutional? Now They Tell Us

The opposition to Hillarycare from Republicans was ferocious, just like their opposition to Obamacare more recently -- and in the Clinton case, the opposition was successful. They threw everything they had at her. They got a judge to rule (later reversed) that her plan was illegal because it had been partly designed in private meetings.

One argument they did not make was that Hillarycare exceeded the government’s powers under the Commerce Clause of the Constitution. (Search the New York Times for all of 1993 and 1994. There is just one buried and dismissive reference to the possibility of a Commerce Clause challenge in an article about half a dozen possible legal strategies for challenging Hillarycare.) Is it possible that requiring people to buy their own insurance is unconstitutional but requiring owners of companies to buy other people’s insurance for them would have been perfectly OK?

During the decades it took for the court to come to its senses about segregation and sexual privacy, there were always lots of people on both sides of the arguments. By contrast, as Dahlia Lithwick points out in Slate, the notion that health-care reform with an individual mandate might be unconstitutional was virtually never heard of until the bill passed and the Vast Right-Wing Conspiracy went to work. Professor Randy Barnett, the intellectual father of the Commerce Clause argument, didn’t really start churning out scholarship on the subject until 2011. During the whole debate over Obamacare, it seems, nobody noticed that it was unconstitutional. Now every conservative politician and pundit finds it not just unconstitutional but obviously so.

It was during the Hillarycare debate that Stuart Butler of the conservative Heritage Foundationfirst proposed a health- care plan based on the individual mandate. Butler says today: “I’ve altered my views on many things. The individual mandate in health care is one of them.” There’s no stare decisis at the Heritage Foundation, apparently.

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