JONATHAN CHAIT MAY 11, 2011
Northwestern law professor Andrew Koppelman has an excellent essay making the case that the Affordable Care Act is not just Constitutional but obviously so, and arguments to the contrary not merely unpersuasive but absurd. His conclusion:
What will the Supreme Court do? There is no nice way to say this: the silliness of the constitutional objectionsmay not be enough to stop these Justices from relying on them to strike down the law. The Republican Party, increasingly, is the party of urban legends: that tax cuts for the rich always pay for themselves, that government spending does not create jobs, that government overregulation of banks caused the crash of 2008, that global warming is not happening. The unconstitutionality of health care reform is another of those legends, legitimated in American culture by frequent repetition.
I reached a similar conclusion, not nearly as thoroughly or as well, in my TRB column a few months ago on Roger Vinson's ruling. I strongly urge everybody to read Koppelman. There are many thorny issues in law, but this simply is not one of them.
One takeaway I had from reading Vinson's ruling, as well as Koppelman's evisceration of it, is that it's really easy to produce a plausible-sounding argument to overturn any legal argument you'd like to overturn. As an interpretation of the law, Vinson's ruling makes no sense. There's simply no way a judge could begin from a standpoint of disinterest about the merits of the law and, working through an understanding of the Constitution, arrive at the conclusion he chose.
But if you instead try to figure out the most plausible-sounding way to construct a Constitutional argument against a law you don't like, then coming up with an argument as good as Vinson's is relatively easy. Again, "as good as Vinson's" is a low bar.