Is Obamacare Constitutionally Supported? A Constitutional Law Professor Answers

This question is being asked by many. Most of those asking are on the right (though not all). Given the importance of the Constitution, it is a question which deserves to to be answered in detail. Since I lack the requisite knowledge and experience to do so, I would direct your attention to the article by Joerg Knipprath, a Constitutional law professor (AKA Token Conservative), which begins as follows:

I have received requests from the media and my students to discuss the constitutional issues raised in the suits by various state attorneys-general that challenge the recently passed Obama/Reid/PelosiCare. There are two dimensions to the inquiry. One is the strictly constitutional problem. The other is the question of institutional response.

Regarding the substantive constitutional dimension, there are, again, several issues, the most salient of which is the individual mandate that requires the public to purchase insurance and, in the alternative, fines those who refuse. The Congress purports to be acting under the power to ”regulate commerce among the several states” (the “commerce clause”). The relevant precedents here are the 1941 case Wickard v. Filburn and the 1996 case Lopez. v. U.S. In Filburn, a holding reinvigorated in the 2005 case Gonzales v. Raich, the Supreme Court gave the commerce clause a very expansive reading and upheld the application of crop restrictions and fines under the second Agricultural Adjustment Act to a farmer whose wheat production for interstate commerce was trivial and who used a portion of his wheat for home consumption. The Court held that Congress’s regulation of the national wheat market fell under the commerce clause, and that the law could be applied even to a trivial participant in the overall wheat market as long as that regulation was needed to address the evil of national overproduction of wheat that Congress was trying to address. Farmer Filburn’s production, when aggregated with the production of other wheat farmers, had a substantial effect on the national commerce in wheat. A similar result was reached in the Raich case in regard to the home growing of marijuana when considered in light of the Congress’s attempt to control the national market of marijuana.

Please do read it all. While it is the first of two or three articles which he’ll publish on the topic, it is quite extensive–particularly for those of us who have not spent years wandering about the stacks in law libraries.

I shall be linking to the successive parts of his discourse as they are published.

One thought on “Is Obamacare Constitutionally Supported? A Constitutional Law Professor Answers

Comments are closed.