More on the Constitutionality of the PPACA
By I have some thoughts about Ronald Dworkin’s new NYRB article on the constitutionality of the PPACA. My primary takeaway:
Alas, as Dworkin also notes while the constitutional issues involved in the challenge to the ACA are trivial the effects of striking down the ACA would not be. Congress will not force anybody to purchase broccoli or a 2007 Chrysler Sebring if the PPACA is upheld. But if it’s struck down, many Americans will die or suffer needless illness and disability. These policy consequences would be disturbing if the constitutional arguments against the PPACA were compelling; given that the constitutional arguments are weak or silly striking the bill down would be outrageous. I wish I shared Dworkin’s confidence that Kennedy will not go down this road.
On that last point, Dworkin is certainly right that given his vote in Raich it would be ridiculously unprincipled for Kennedy to vote to strike down the ACA. But that doesn’t mean he won’t do it. The contradiction sure didn’t seem to affect Scalia…