On Health Care Law’s Anniversary, Opponents Continue to Misrepresent Constitution, Say ACS Leader, Former Solicitor General

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On the one-year anniversary of the landmark Affordable Care Act, lawsuits grounded in a radical view of the Constitution attempt to use the courts to defeat the legislation that could not be defeated in Congress, threatening to undermine other vital national programs and the integrity of our legal system, says American Constitution Society (ACS) Executive Director Caroline Fredrickson.

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The arguments by right-wing activists are not legal arguments, but policy claims that must be shown for what they are – a radical attempt to turn the clock back on democracy.

On the one-year anniversary of the landmark Affordable Care Act, lawsuits grounded in a radical view of the Constitution attempt to use the courts to defeat the legislation that could not be defeated in Congress, threatening to undermine other vital national programs and the integrity of our legal system, says American Constitution Society (ACS) Executive Director Caroline Fredrickson.

“The arguments by right-wing activists are not legal arguments, but policy claims that must be shown for what they are – a radical attempt to turn the clock back on democracy,” Fredrickson says. “In fact, if you listen closely enough to their arguments against the landmark law, you’ll hear a demand for a drastically different America, one where Social Security and Medicare are unconstitutional and where the government can’t protect people against discrimination.”

During an ACS phone briefing yesterday moderated by Fredrickson, former acting Solicitor General Walter Dellinger analogized attacks on the health care law to alarm bells sounded after the passage of the Social Security Act and the minimum wage laws, which were ultimately upheld by the courts. Echoing comments he made during a recent panel discussion on the Affordable Care Act, Dellinger said whether the landmark health care law is constitutional “is not a close question.”

“I don't think that people are going to be sitting around on the court wringing their hands waiting to see what Justice Kennedy thinks. I believe that Chief Justice Roberts will be in the majority and that he will decide the opinion to himself,” Dellinger said.

Dellinger is among “numerous legal experts who have confirmed that regulating the health care industry is well within the powers granted to Congress by the Constitution,” said Fredrickson. “But opponents, including Tea Party activists, are advancing misguided constitutional theories aimed at disrupting the ability of Congress to tackle a host of national problems, such as the rising cost of health care and the overwhelming number of uninsured.”

Fredrickson cites a recently published ACS Issue Brief, which explains that the health care system is a $2 trillion industry with a wide-ranging impact on the nation’s economy and therefore well within the constitutional power of Congress to regulate. She also points to a recent statement signed by more than 135 leading constitutional scholars that ACS members helped organize, which lays out why the health care law is clearly within the scope of congressional authority, and that invalidating the law would require discarding nearly two centuries of settled law.

“As the Issue Brief points out, if Congress cannot regulate an industry with such an enormous impact on our economy, what limit is there on the ability of judges to throw out other laws they dislike?” Fredrickson said. "It is one thing for a court to throw out laws that are shoddily drafted and have a questionable constitutional basis, but to invalidate a law based on a novel and ideological rejection of widely accepted constitutional interpretation is pure and simple judicial activism.”

Read two ACS Issue Briefs on the constitutionality of the health care law here, and listen to audio of yesterday’s phone briefing with Dellinger here. To speak with Fredrickson or Dellinger, please contact Nicole Flatow, nflatow(at)acslaw(dot)org, or Jeremy Leaming, jleaming(at)acslaw(dot)org, at 202-393-6181.

The American Constitution Society for Law and Policy (ACS), founded in 2001 and one of the nation's leading progressive legal organizations, is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit http://www.acslaw.org.

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