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An Excuse, Not An Argument

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My column in the Prospect this week discusses how the oral arguments at 4th Circuit earlier this week represented the pure shoddiness of the constitutional arguments being mounted against the ACA. The “inactivity/activity” distinction is not a serious argument but something cooked up to strike down a particular bill without accepting the logical implications, and it shows:

But the “activity/inactivity” distinction is not only conceptually problematic; it lacks any real legal basis. The text of the Constitution certainly does not make this distinction, nor has it been relevant to the many of the Supreme Court’s foundational precedents.

[…]

Why did legal challenges to the ACA come to rest on such a feeble argument? The answer is that political realities painted conservative litigators into a corner. It is possible to make a coherent and principled argument that the Affordable Care Act is unconstitutional. But this argument would have to look like those advanced by libertarian legal scholars like Randy Barnett and Richard Epstein, who have argued that the modern regulatory state is itself unconstitutional. If the commerce clause should be read as merely conferring on the government a limited power to regulate trade, then the Affordable Care Act is indeed unconstitutional.

The problems with advancing such a claim, however, are manifest. First, such arguments were conclusively rejected by the Supreme Court 70 years ago. Second, a constitutional vision reverting our regulatory law to the 1800s would have no political support. The “activity/inactivity” distinction is less a serious argument than an ad hoc, outcome-oriented attempt to strike down on particular law without threatening other popular federal programs.

If the Supreme Court were to strike down the ACA based on this argument, it would be the worst Supreme Court decision since Bush v. Gore. Alas, that decision should remind us that the Supreme Court could very well do it anyway.

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