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Radicals at the Supreme Court

Legal critics of the Affordable Care Act insist that their case is consistent not only with the original intent of the Constitution, but also with modern precedent. They say that the individual mandate is so "unprecedented" that it violates contemporary understandings of the "Commerce" and "Necessary and Proper" clauses, which generations of justices and legal scholars have interpreted broadly.

It's a critical claim, because defenders of the law (including me) have suggested that the only way to overturn the mandate is to reject precedents and to establish new boundaries on federal powers. Doing so would be an act of aggressive judicial activism, a label most conservatives reject.

Who's right? Andrew Cohen, a legal analyst for "60 Minutes" and contributing editor at The Atlantic, suggests it's the law's critics who are the real radicals:

One under-reported theme this week was the gulf between all those lower court decisions upholding the act and the reception the statute received from the Court's conservatives. If the law is as patently unconstitutional as some of the justices painted it to be, then why wasn't it routed at the lower court levels? Why did conservative judges like 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, an appointee of George W. Bush, endorse it? The dozens of lower court judges who considered the law a valid exercise of Congressional power are just as smart as the justices, aren't they? And they are supposed to be following existing precedent, aren't they? It's the Supreme Court that's the outlier here. ...
Here's an idea. If the Court's conservatives strike down the mandate, or the entire Care Act, Congress should pass a law that says that anytime anyone ever uses the words "liberal judicial activism" together in a sentence they have to pay a $10,000 fine, the proceeds of which would go to help more people get health care. When I went to law school, and I think I was paying attention that day, we were taught that federal statutes are presumed to be constitutional -- that challenging parties bear the burden of justifying why they should be struck down. Whatever happened to that limiting principle?

A good question, that. To overturn Congress and the President on an issue such immediate consequence and magnitude, the Court ought to have a deep, morally compelling rationale that commands broad support from the bench. And, for most of the last century, it has. As I noted the other day, Brown v. Board of Education and Roe v. Wade reflected strong moral judgments about the way the world existed. (That's true whether or not you agree with Roe's specific judgment.) The votes in those cases were nine-to-zero and seven-to-two, respectively. Those margins gave their judicial activism more legitimacy.

But even the Affordable Care Act's challengers concede that it would be constitutional with only minor tweaks to language or structure. They claim not to find the concept of universal health insurance offensive, as critics of segregation did and abortion prohibitions still do. Most telling of all, perhaps, a decision to overturn the Affordable Care Act would almost surely be five-to-four, along a straight party-line vote.

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