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19 Geo. Mason L. Rev. 959 (2011-2012)
Will the Supreme Court Be Faithful to Its Oath to Uphold the Constitution in the Obamacare Case

handle is hein.journals/gmlr19 and id is 967 raw text is: 2012]


Stephen B. Presser
My assignment for this symposium was to say something about judi-
cial abdication in enforcing limits on government power, and, in particu-
lar, to focus on the Patient Protection and Affordable Care Act (known to
its critics as Obamacare, and hereafter referred to as the PPACA).' The
thesis I will advance is a very simple one. If the United States Supreme
Court declines to declare the PPACA's individual mandate2 unconstitu-
tional,3 it will be the most striking and disturbing judicial abdication in en-
forcing limits on governmental power that we have seen at least since the
New Deal. Furthermore, it will be the virtual destruction of a vital part of
our structure of constitutional government. This seems obvious to me for
reasons I will try to elaborate here. But, what is perhaps most shocking
about the upcoming Supreme Court decision on the PPACA is that there is
virtual unanimity among the denizens of the American legal academy that
the Supreme Court should not restrain this exercise of dubious governmen-
tal power. This is because, according to both folks on the left and the right
in the legal academy, the PPACA is constitutional.4 Moreover, there is plen-
* Raoul Berger Professor of Legal History, Northwestern University School of Law, Professor of
Business Law, Kellogg School of Management, Northwestern University. The author has signed several
amicus briefs in the course of the litigation over the constitutionality of the Patient Protection and Af-
fordable Care Act, most recently the Brief of the Washington Legal Foundation and Constitutional Law
Scholars as Amici Curiae in Support of Respondents, drafted by Ilya Somin, and submitted to the
United States Supreme Court on February 13, 2012. See Brief of the Wash. Legal Found. & Constitu-
tional Law Scholars as Amici Curiae in Support of Respondents at 32, U.S. Dep't of Health & Human
Servs. v. Florida, 132 S. Ct. 604 (2011) (No. 11-398).
1 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (amend-
ed by the Health Care and Education Reconciliations Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029
2 Id. § 1501 (requiring that most adult Americans must purchase health insurance by 2014, or pay
a specified monetary penalty).
3 The case on this issue (and others involved in the constitutionality of the PPACA) is Florida v.
United States Department of Health & Human Services, 132 S. Ct. 604 (2011) (No. 11-398), on writ of
certiorari to the U.S. Court of Appeals for the Eleventh Circuit. It was argued in March of this year, and,
presumably, will be decided in early summer.
4 See, for example, samples coming from the right and the left in the American legal academy, at
least insofar as they exist at Harvard, the comments of former Reagan Solicitor General, and now Har-

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