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Don't Abandon Constitutional Criticisms of Obamacare

6:15 PM, Jul 30, 2012 • By MARK HEMINGWAY
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Over at National Review Online, George Mason law professor Eric R. Claeys has a very interesting and lengthy piece on how constitutionalists should view Obamacare after the Supreme Court's ruling upholding the law:

So what should constitutionalists do in the wake of Sebelius? Keep up policy-based criticisms of Obamacare, but don’t abandon constitutional criticisms. In addition, at least some elected representatives should keep up what Representative McClintock has started: citing Sebelius as further proof that Obamacare is unconstitutional.

Of course, if members of Congress criticize Sebelius, at least a few Obamacare supporters may (unfairly) accuse them of threatening the Supreme Court. This criticism has more force when the Supreme Court has issued a well-reasoned opinion. Constitutionalists shouldn’t worry about that in this case, because the chief justice’s vote-switching and the Court opinion’s tax and statutory holdings are all easy targets. The criticism also has more force when the Court says Congress lacks a power under the Constitution and Congress then exercises the power anyway. Lincoln and the Civil War Congress faced that criticism when they abolished slavery in Washington, D.C., and in federal territories in flat defiance of language in Dred Scott saying they couldn’t. Yet Congress is on extremely safe ground when it refuses to exercise, or when it repeals a previous exercise of, powers the Supreme Court says it has. Thus, it was easy for Jackson to defy McCulloch; all he needed to do was criticize the case in a message vetoing the reauthorization of the Second Bank, and make sure the veto wasn’t overridden. From this perspective, Sebelius and the Affordable Care Act present an easy case, like McCulloch and the Second Bank. The 113th Congress won’t be seen as attacking the Court — not if constitutionalists forge a mandate claiming that the Sebelius decision is forbidden fruit and that Obamacare is unconstitutional.

Read the whole thing here.

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