Constitutional showdown - A Florida judge distorted the law in striking down healthcare reform.

Constitutional showdown
A Florida judge distorted the law in striking down healthcare reform.

By Akhil Reed Amar
February 6, 2011


Earlier this week, after grading student papers from my Yale Law School class on constitutional law, I began reading federal District Judge Roger Vinson's recent opinion declaring "Obamacare" unconstitutional. One thing was immediately clear: My students understand the Constitution better than the judge.

I strive to be apolitical in evaluating students and judges alike. Over the years, many of my favorite students have been proud conservatives, while others have been flaming liberals. The Constitution belongs to neither party.

As every first-year law student learns, lower court judges must heed Supreme Court precedents. The central issue in the Obamacare case is how much power the Constitution gives Congress, and the landmark Supreme Court opinion on this topic is the 1819 classic, McCulloch vs. Maryland.

In McCulloch, when states' rights attorneys claimed that Congress lacked authority to create a federal bank, Chief Justice John Marshall famously countered that the Constitution gives Congress implied as well as express powers. Marshall said that unelected judges should generally defer to elected members of Congress so long as a law plausibly falls within Congress' basic mission. Though the words "federal bank" nowhere appear in the Constitution's text, Marshall explained that Congress nevertheless had the power to create such a bank to facilitate national security and interstate commerce. Other words not in the Constitution include "air force," "NASA," "Social Security," "Peace Corps" and "paper money," but all these things are constitutional under the logic of McCulloch. Obamacare is no different.

http://www.latimes.com/news/opinion/la-oe-amar-health-care-legal-20110206,0,2864065.story

and nothing anyone says can change that.

To work.

The Wielding Truth

That was interesting, thank you for the insight..

Diclotican

which can be bought up by foreign firm and all the work shipped out.

The seamen had the precursor to Medicare.

That was a TAX assessed to a small group to cover medical expenses (similar to a medical pool). There was NO mandate to buy private coverage. Apples and oranges. Until we have a single payer system, all these little "fixes" will not pass constitutional muster.

... so many people here see what only they want to see to support their vision of 'the facts'.

Its nice when the real facts show up, although discouraging that some of us have to keep bringing them up time and time again.


:hi:

people overlook the precedent that would be set if this is deemed constitutional. The mandate is unconstitutional plain and simple, single payer paid for by a progressive tax system is the only acceptable option

is in the mail.

were defending the pro-segregation decision of Plessy v. Ferguson from 1896 until Brown v. Board of Education in 1954. And they were defending the constitutionality of the Dred Scott decision before that. Just because you teach Con Law at Yale or anywhere else does not make you God.

The whole damn thing is and if that is allowed we can kiss the idea of universal health care good-bye. I want medicare for all but and I think it will come to that but first we have to let the people see how the insurance companies are going to f--k this up. And we need a bigger majority in both house and senate. I am not for dumping the whole law. I am on medicare/medicaid already but I know a lot of people who have been helped by this bill and I would hate to see them lose it all again.

and losing it would guarantee single payer.

...more years of right-wing Repiglickin' obstructionism, while they looked for a free-market, for-profit solution that doesn't exist, never has existed, and never will exist. In the meantime, people will suffer and die while insurance companies' death panels deny coverage, deny claims for those in need. We can't go back. We simply CANNOT GO BACK!! PERIOD. End of discussion.

The mandate will only institutionalize and strengthen the private for profit "health" insurance corporations; hold on the American People as their wealth, power and influence grows exponentially so will their ability to influence future elections, along with an increased ability to bribe/lobby future Congresses.

But I'm swayed by the provisions in the Constitution that limit Congressional power. Coming out of a monarchy with vast powers behind it this makes sense.

I'm unswayed by the "if it's been done that way, it must be right." The history of Constitutional exegesis has been to find more and more powers invested in government, and more and more rights that sometimes affect government but more often serve to increase the powers vested in government. So much so that government is seen not as the protector of but the provider and source of rights. This strikes me as going against the grain of much Enlightenment thought, even with all its whorls.

I'm thoroughly unswayed by the logic I've seen proposed that the Constitution may restrict Congress but gives Congress unlimited power to do anything--however much that "anything" might be unconstitutional in other contexts--necessary in order to exercise a limited and proper power granted by the Constitution. So if it's necessary to declare martial law, expropriate all land assets over 5 sq in, imprison all people over 30 in concentration camps and shut every press without due process in order to pass a budget, since passing a budget is a legitimate function of Congress all the others--assuming they really are necessary to accomplish this goal--are suddenly Constitutional. This is so far past "we had to destroy the village in order to save it" that it's ludicrous--it's "we have to destroy the Constitution in order to allow the voluntary execution of one of its provisions."

I once read a funny little description of how it's possible to evert a human being using standard topological techniques that, in principle, should leave the human being alive. It wouldn't, of course. With an abstraction the difference between a painful death and joyous life is a bit harder to suss out.

actually a tax.

So many "constitutional scholars" disputing the writing of a real consititutional scholar. I'm impressed.

or power. Ask Laurence Tribe, for example.

are more informed than others. For example, I would cast my lot with Tribe (a virtual constitutional god) over Joe/Jane Blog Poster.

You will note the weight and credentials of those arguing the constitutionality of the bill versus those arguing against. If Tribe says it's constitutionally good, that's good enough for me.