Health-Care Reform and the Constitution

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A federal judge in Virginia has ruled that a key feature of Obama's health-care reform--the mandate on individuals to buy insurance--is unconstitutional. In due course the issue will be decided in the Supreme Court. If you want to understand the legal issues underlying the case, and get some guidance on how things are likely to go, you cannot do better than read this column by Stuart Taylor.

Note that, as Taylor points out, the individual mandate may not be the part of the policy that is most vulnerable to constitutional challenge. (Florida and other states are challenging the law before another federal judge tomorrow, arguing among other things that the federal government cannot force the states to expand their Medicaid programs.) In the end, Taylor expects the Supreme Court to go along and uphold the reform, but don't take it for granted--especially if the law remains unpopular. What, you mean the court would be influenced by that? You bet it would be.

[T]he bottom line is that I think that a perhaps narrow majority of the justices would defer to the political branches here. The alternative would be to strike down the president's signature initiative -- something that no Court has done in more than 70 years, for good reason.

But what if the new law continues to remain unpopular with voters, or even become more unpopular? What if they sweep congressional Democrats out of power in November, or even sweep Barack Obama out of the presidency in 2012? What if majorities of the new House and Senate sign friend-of-the-court briefs asking the justices to strike down the mandate, which was passed without a single Republican vote? And what if--politics and law aside--the whole business comes to look like a mess that can be salvaged only by a Supreme Court decision clearing the decks for Congress to rethink health care reform from the ground up?

Such are the dreams of those who imagine the justices striking down the proposed health care mandate. I hope that they don't all come true. But if they do, five justices might go with the flow.

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Clive Crook is a senior editor of The Atlantic and a columnist for Bloomberg View. He was the Washington columnist for the Financial Times, and before that worked at The Economist for more than 20 years, including 11 years as deputy editor. Crook writes about the intersection of politics and economics. More

Crook writes about the intersection of politics and economics.

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