Jonathan Cohn

Bork-Backing, Activist-Hating Legal Expert: Obamacare Is OK

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If you haven't already, please read what Henry Paul Monaghan has to say about the lawsuits challenging the Affordable Care Act. Monaghan is the Harlan Fiske Stone Professor of Constitutional Law at Columbia. He is also a conservative, in the old school, legal sense of the word.

In 1985, Monaghan wrote a widely read and cited essay called "Our Perfect Constitution" that was critical of activist judges who used the document to justify expansions of individual rights. In 1986, he testified before the Senate Judiciary Committee on behalf of Robert Bork, the arch conservative that former President Reagan tried (and failed) to place on the Court. In the fall of 2010, Monaghan defended the Court's decision in the Citizens United case, which overturned part of the McCain-Feingold campaign law.

One theme of Monaghan's work is respect for precedent. And that's precisely why, he says, the Court should uphold the Affordable Care Acteven if the justices think it's bad public policy.

The individual health mandate surely passes constitutional muster under settled judicial principles. The Constitution’s Commerce Clause grants Congress the authority “to regulate commerce ... among the several States.” ... The purported limit on congressional power favored by the mandate's opponentsbetween constitutionally permissible regulation of “activity ” and unconstitutional regulation of “inactivity ”is simply unknown to Commerce Clause jurisprudence, is wholly unworkable, and makes no economic sense. ... I recognize that many persons believe the health mandate is very bad legislative policy. But the appropriate judicial response to such a complaint has long been clear. The Court was admirably forthright about the point in its ruling in Munn v. Illinois in 1876: “For protection against abuses by the Legislature, the people must resort to the polls, not the courts.”

If you're keeping score, that's five very prominent, very well-respected conservatives who have argued that the Affordable Care Act is constitutional. The other four are Charles Fried, Laurence Silberman, Jeffrey Sutton, and J. Harvie Wilkinson. Fried, a Harvard Law School professor, was solicitor general during the Reagan Administration. Wilkinson, a sitting federal judge, was on George W. Bush's short list of potential nominees to the Court.

Silberman and Sutton also sit on the federal bench. They made their statements via rulings, when lawsuits challenging the law came before them. "Appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent," Silberman wrote in his decision.

Some of the law's critics have suggested that, as appellate judges, both Silberman and Sutton might have been reluctant to overturn past decisions, preferring to leave that job to the Supreme Court. But that's precisely the point: Conservatives faithful to traditional interpretations of the Constitution believe the individual mandate, even if novel, falls well within the existing boundaries of constitutional power.

With virtual unanimity, less conservative (in the political sense) legal experts seem to agree on this. Just last week, Harvard Law School's Lawrence Lessig weighed in on the case at the Atlantic:

Whether wise or not, Obamacare is plainly constitutional under the Court's existing precedents. That's not to say the Court couldn't make up a new rule by which the law was deemed unconstitutional. But against the history of the repeated embarrassments that the Court has suffered as it has tried to police Congress' commerce authority, it seemed genuinely unimaginable that it would again make the same mistake.

If five justices want to strike down the individual mandate, they can. But to do so honestly, they would have to admit that they were rejecting precedent and drawing new lines around federal power.

Sometimes the circumstances demand this kind of judicial activism. Lessig doesn't seem to think this is one of those times. As readers of this space know, neither do I.

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