The Politicians Are Nearly Done; Here Come The Lawyers


In the middle of vicious debate over health care reform, one marked by cheap partisan tricks and apocalyptic warnings, the Office of Legal Counsel issued a legal memorandum for the Attorney General entitled: "Constitutionality of Health Care Reform."

The report's conclusions, offered by eminent Administration scholars, were up at the top of the very first page. In italics, they read: The proposed health care reform legislation "is well within the authority of the Congress under the Commerce Clause, and it does not violate Tenth Amendment or other principles of federalism.  The proposal contains no unconstitutional takings of private property or infringement of liberty interests.  The proposed delegation of administrative authority is not an impermissible delegation of legislative authority."

If you are a glutton for self-abuse and want to dive into the legal debate over health care reform, a debate which minimizes the substance of the legislation while focusing upon the constitutionality of its many moving parts, then the above memo, given to Attorney General Janet Reno on October 29, 1993, is as good a place as any to start. Written by Walter Dellinger and H. Jefferson Powell, the brief tracks in a broad way the legal arguments we are almost certain to see from White House and Justice Department lawyers as they discern the intent and defend the language of the federal statutes that will be altered by the new measure.

Many of the same Supreme Court cases Dellinger and company cited nearly two decades ago will be used by Eric Holder's attorney-soldiers as they march into federal courthouses all over the country to try to save health care reform. On the right, lawyers and "experts" of varying stripes of sanity are licking their chops waiting to do in court--perhaps at the Supreme Court--what they were unable to achieve either at the ballot box or through their Congressional representatives. In fact, the Internet is jammed with chatter about how the federal courts will save conservatives (or Republicans) by voiding the new health care laws.

Look, there are a thousand unknowns about the efficacies of the looming new federal health care reform program. But one of them shouldn't be the coming litigation over its many nooks and crannies. The dozens (hundreds?) of lawsuits that are coming will take years to fully resolve. Some arguments from conservatives --say, the Commerce Clause one -- will be stronger than others -- say, the Tenth Amendment one. Judges in 2010 are almost certainly going to have to decide whether the new measures may be enforced during the pendency of litigation over their constitutionality or whether they must be blocked immediately.

I'd be surprised if vast portions of the new federal law ultimately are deemed unconstitutional. But I also said that about the Child Online Protection Act, which was initially passed in 1998 and which still hasn't been given the rubber-stamp by the federal judiciary. Born before my son, the COPA saga (at least from Congress' point of view) looks unlikely to be resolved by the time he reaches high school. Like it or not, the same can be said of the new health care legislation.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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