Gerry Canavan

the smartest kid on earth

Fear the Court?

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TPM’s long “Is Health Care Reform Constitutional” post today says that Bush v. Gore and Citizens United aside the Roberts majority is unlikely to strike down any part of the health care bill.

Several respected conservative legal experts essentially agree that the court would have to radically break with past rulings to strike down the law. John McGinnis, a former Bush 41 administration Justice Department official and a past winner of an award from the Federalist Society, told TPMmuckraker that the court could rule in favor of the AGs only by taking a radical Originalist view of jurisprudence — one that all but ignores precedent. “I think the only person who shares [that view] is Justice Thomas.” said McGinnis, now a constitutional law scholar at Northwestern Law School. “It’s a very difficult argument to make under current precedent.”

Doug Kmiec, a former Reagan administration Justice Department official, and conservative legal scholar, echoes that view. “The idea that a regulatory requirement (whether to purchase insurance or to purchase a smoke alarm) violates the Constitution by exceeding the scope of the commerce power was rejected in the age when Robert Fulton’s steam ships were at the center of case controversy and the proposition has not gained validity with the passage into the 21st century,” Kmiec, now the Obama administration’s ambassador to Malta, told TPMmuckraker.

And Orin Kerr, a professor at George Washington Law School, who has served as a special counsel to Sen. John Cornyn (R-TX) and clerked for Justice Anthony Kennedy, likewise believes the bill is almost certain to pass muster. “I think it’s very very unlikely that the mandate would be struck down as unconstitutional,” Kerr told TPMmuckraker.

There’s another problem with the lawsuit. Many judges are often reluctant to hear a challenge to a law until it has actually gone into effect — what legal types call a “ripeness” issue. The individual mandate won’t go into effect until 2014 — by which time factors like the composition of the Supreme Court, and the underlying politics driving the lawsuit, may well have changed.

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