Synopses & Reviews
Chief Justice John Roberts stunned the nation by upholding the Affordable Care Act--more commonly known as Obamacare. But legal experts observed that the decision might prove a strategic defeat for progressives. Roberts grounded his decision on Congress's power to tax. He dismissed the claim that it is allowed under the Constitution's commerce clause, which has been the basis of virtually all federal regulation--now thrown in doubt.
In The Tough Luck Constitution and the Assault on Health Care Reform, Andrew Koppelman explains how the Court's conservatives embraced the arguments of a fringe libertarian legal movement bent on eviscerating the modern social welfare state. They instead advocate what Koppelman calls a "tough luck" philosophy: if you fall on hard times, too bad for you. He argues that the rule they proposed--that the government can't make citizens buy things--has nothing to do with the Constitution, and that it is in fact useless to stop real abuses of power, as it was tailor-made to block this one law after its opponents had lost in the legislature. He goes on to dismantle the high court's construction of the commerce clause, arguing that it almost crippled America's ability to reverse rising health-care costs and shrinking access.
Koppelman also places the Affordable Care Act within a broader historical context. The Constitution was written to increase central power, he notes, after the failure of the Articles of Confederation. The Supreme Court's previous limitations on Congressional power have proved unfortunate: it has struck down anti-lynching laws, civil-rights protections, and declared that child-labor laws would end "all freedom of commerce, and . . . our system of government [would] be practically destroyed." Both somehow survived after the court revisited these precedents. Koppelman notes that the arguments used against Obamacare are radically new--not based on established constitutional principles.
Ranging from early constitutional history to potential consequences, this is the definitive postmortem of this landmark case.
Review
"Andrew Koppelman has magnificently captured the current legal, political and policy-related lay of the land in Washington. His insightful analysis here should be mandatory reading for anyone concerned about the future of health care in America."--Tom Daschle, former Senate Majority Leader
Synopsis
The legal challenge to the Affordable Care Act, and the Supreme Court's decision to uphold the law, is quite possibly the most momentous Supreme Court case on the issue of federal power in our era. Yet, despite the Court's ruling, the issue of health care reform is still an incredibly divisive issue. For the left, the federal government has the power to regulate interstate commerce, and the health insurance industry surely falls under the definition of interstate commerce. For conservatives, the individual mandate is the core of the plan, and it represents an egregious erosion of individual rights and liberties. Andrew Koppelman, a leading constitutional scholar and an expert on the issue, thinks that the constitutional arguments against it are spurious, and in The Tough Luck Constitution and the Assault on Health Care Reform, explains why. After walking readers through the 125-year modern history of Supreme Court cases dealing with the regulation of commerce, Koppelman tackles the arguments for and against the law. He contends that the New Deal established that that federal government had broad power over interstate commerce. If most commerce in a modern, complex economy like the US amounts to interstate commerce-as case law currently holds--then surely health care, which constitutes one sixth of the economy and is dominated by an insurance industry that crosses state lines, is interstate commerce too. Koppleman's book closes with an analysis of the final decision. The Tough Luck Constitution and the Assault on Health Care Reform is an authoritative account of the issue-one that not only carries great implications for the upcoming presidential election, but which also serves as a definitive analysis for years to come.
About the Author
Andrew Koppelman is John Paul Stevens Professor of Law, Northwestern University. His books include
Defending American Religious Neutrality, A Right to Discriminate?, and
The Gay Rights Question in Contemporary American Law. Table of Contents
Contents
Introduction
Chapter One: The Road to the Mandate
Origins of health insurance
After Medicare and Medicaid
Obama
Chapter Two: Appropriate Constitutional Limits
The enumerated powers
Necessary and Proper
The unhappy story of judicially crafted limits
A Constitution of subsidiarity
Why the mandate is constitutional
Chapter Three: Bad News for Mail Robbers
The invention of the constitutional objection
Barnett's libertarianism
The path to the Supreme Court
The Broccoli Horrible
From court to Court
Chapter Four: What the Court Did
The mandate
Medicaid
Severability
Explaining John Roberts
Chapter Five: Where It Hurts
So what happens to the Medicaid expansion?
Your tough luck
Acknowledgements