121 Yale L.J. F. 1 (2011-2012)

handle is hein.journals/yljfor121 and id is 1 raw text is: 






















ANDREW KOPPELMAN


Bad News for Mail Robbers: The Obvious

Constitutionality of Health Care Reform'


    The  Supreme   Court  may   be headed  for its most  dramatic  intervention in
American   politics - and most flagrant abuse  of its power - since Bush  v. Gore.'
Challenges   to President Obama's   health  care law' have  started to work  their
way  toward  the  Court and  have  been sustained  by two  Republican-appointed
district judges.4




1.  A  version of this Essay was presented at Healthcare Reform: The Law   and Its
    Implications, a seminar of the American Health Lawyers Association, held in Chicago on
    December  6, 2010. This Essay consolidates and adds to arguments presented in an earlier
    series of blog posts. Andrew Koppelman, Can't Think ofAnother One, BALKINIZATION (Dec.
    14, 2010, 11:17 AM), http://balkin.blogspot.com/2olo/12/cant-think-of-another-one.html;
    Andrew     Koppelman,    Health    Care   Reform:    The    Broccoli  Objection,
    BALKINIZATION   (Jan. 19,  2011,  4:48  PM),   http://balkin.blogspot.com/2oll/ol/
    health-care-reform-broccoli-objection.html; Andrew Koppelman, Non Sequiturs in the
    Florida  Health  Care  Decision, BALKINIZATION   (Feb.  2,   2011,  2:42  PM),
    http://balkin.blogspot.com/2oll/o2/non-sequiturs-in-florida-health-care.html;  Andrew
    Koppelman, The Virginia Court's Bizarre Health Law Decision, BALKINIZATION (Dec. 13, 2010,
    5:o1 PM), http://balkin.blogspot.com/2olo/12/virginia-courts-bizarre-health-law.html.
2.  531 U.S. 98 (2000). For defenses of the modest proposition that the Supreme Court is not
    constitutionally authorized to appoint the President, see, for example, Laurence H. Tribe,
    eroG v. hsuB and Its Disguises: Freeing Bush v. Gorefrom Its Hall of Mirrors, ni5 HARv. L.
    REV. 170 (2001). See also Jack M. Balkin, Bush v. Gore and the Boundary Between Law and
    Politics, no YALE L.J. 1407 (2001).
3.  Patient Protection and Affordable Care Act (PPACA), Pub. L. No. 111-148, 124 Stat. 119
    (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-
    152, 124 Stat. 1029 (to be codified primarily in scattered sections of42 U.S.C.).
4.  Florida ex rel. Bondi v. U.S. Dep't of Health & Human Servs. (State Attorneys General II),
    No. 3:10-cV-91, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011); Virginia ex rel. Cuccinelli v.
    Sebelius (Cuccinellill), 728 F. Supp. 2d 768 (E.D. Va. 2010). Three other district judges-in

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