Gerry Canavan

the smartest kid on earth

Esenberg and Balkin Play “Is Health Care Reform Constitutional?”

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It’s time again for everyone’s favorite game, “Is Health Care Reform Constitutional?” Today’s contestants are (from the right) Marquette University Law School visiting professor Richard Esenberg and (from the left) Jack Balkin of Yale Law School. Esenberg doesn’t like the bill but thinks it will most likely be upheld: “Were I to wager on the question (which may turn out to be an exercise in reading the mind of Anthony Kennedy), I would expect the Court to uphold the individual mandate.”

Balkin, for his part, has no doubt, forcefully rebutting some of the agnosticism in the Randy Barnett piece I linked earlier in the week:

The most likely constitutional challenge will be that the individual mandate to purchase health insurance is unconstitutional because it forces people to buy insurance. Barnett omits to mention in his op-ed that the mandate is actually structured as a tax: if you don’t buy insurance, you are assessed a tax for each month you fail to pay premiums. Barnett argues that individual mandate must be unconstitutional because the government can’t require people to do anything; however, the government can make you pay taxes. It does so every year. Congress pretty clearly has the power to pass such a tax under its powers to tax and spend for the general welfare. This is an easy case for constitutionality.

Balkin goes on to tackle that huge elephant in the room, Bush v. Gore:

Barnett is ambiguous about whether he is actually advocating a second Bush v. Gore or simply arguing that the five Republican Justices on the Supreme Court might be shameless enough to attempt a second version of Bush v. Gore. (It’s sort of like he is saying, “nice health care bill you’ve got there; it would be a shame if anything happened to it.”)

I assume that Barnett actually isn’t advocating it. Bush v. Gore was widely derided as a travesty of legal reasoning, and the Supreme Court has avoided citing it or mentioning it in its opinions since. Whether or not the individual Justices viewed their actions this way at the time, many people saw Bush v. Gore as five conservative Justices making implausible legal arguments to benefit the interests of a particular political party which they happened to favor. And not to put too fine a point on it, Bush v. Gore helped smooth the way to the Bush Presidency, the dissipation of the federal budget surplus, the war in Iraq, presidentially approved torture, the cratering of the economy, and enormous budget deficits through reckless overspending by the Bush Administration. Bush v. Gore was, in hindsight, not only deeply flawed judicial reasoning, but led to a disaster for the country. Bush v. Gore is an example of what the Supreme Court and federal judges shouldn’t do.

If opponents of the bill are reduced to wishing for a second Bush v. Gore, they, and not their opponents, have truly given up believing in American democracy.

UPDATE: In an e-mail to me, Barnett confirms that his reference to Bush v. Gore “was simply about predicting 5 votes.” He writes: “If the conservative justices are as lawless as accused, the bill’s supporters should worry. But if not, not. Which is it?”

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