A Gotcha Question and the Affordable Care Act

The American Prospect blogger Adam Serwer delves into the constitutionality of making health care insurance mandatory.

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The American Prospect blogger Adam Serwer weighs in -- via a post by Adam Winkler, a professor at UCLA School of Law -- on the legal fight over whether the Affordable Care Act's requirement that all Americans have health insurance is constitutional.

Adam Winkler has an interesting post on the legal fight over the Affordable Care Act and the "gotcha" question the conservatives are likely to ask: What are the limits of the Commerce Clause if the mandate is constitutional?

" ... Whichever government lawyer is assigned to argue for the constitutionality of the mandate before the Justices is sure to do exactly what Malcolm Stewart and Drew Days did by emphasizing that precedent controls. He or she will argue that previous decisions of the Court indicate that Congress has the ability to regulate health insurance by imposition of a mandate. But will he or she also follow Stewart and Days and fail to articulate meaningful limits on Congress’s power?"

I've been arguing something similar for a while, but I didn't realize how much similar questions factored into previous Commerce Clause cases. Liberals can't just respond to concerns about unlimited federal power by citing precedent and dismissing the slippery slope as paranoid. They have to articulate both why the mandate is constitutional and why the issue of health care is unique enough that it does not, in fact, mean the government can make you do anything it wants. This as much a legal question as it is a political one, and Winkler's right that ultimately the mandate will likely survive or perish based on how well the ACA's defenders are able to answer it.

Read Adam Serwer's complete column at the American Prospect.

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