Constitutional Law

‘Smart Money’ Says Supreme Court Won’t Thwart Health Care Bill, Law Prof Says

The “smart money” says the U.S. Supreme Court won’t overturn the health care bill awaiting President Obama’s signature—but the smart money has been wrong before, a law professor says.

Writing in the Washington Post, Georgetown University law professor Randy Barnett says the smart money doubted there were enough votes for the Supreme Court to intervene in a politicized controversy over technical procedures. “You might have heard of it: Bush v. Gore.”

In a post at the Volokh Conspiracy, Barnett says his point is that “a political climate such as this—like the climate surrounding the 2000 election—could affect the openness of some justices to constitutional arguments they might otherwise be inclined to reject.”

The bill approved on Sunday evening requires most Americans to have health insurance and penalizes employers that don’t offer insurance.

The argument that has the best chances of success, Barnett says at the Volokh Conspiracy, concerns the limits of commerce power. He points out that the U.S. Supreme Court has long allowed Congress to regulate all kinds of economic activities that aren’t, strictly speaking, commerce.

But the health bill’s requirement that individuals purchase health insurance, he says, “extends the commerce clause’s power beyond economic activity to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company.”

Prior coverage: “Is the Health Care Bill Unconstitutional?”

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