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Flunking Constitutional Law

12:29 PM, Apr 4, 2012 • By ADAM J. WHITE
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Moreover, the Court continued to strike down laws "passed by Congress on an economic issue" well into modern times. In 1998, the Court struck down the Coal Industry Retiree Health Benefit Act for violating either the Fifth Amendment's Takings Clause or its Due Process Clause. In 1997, the Court struck down part of the Brady Handgun Violence Prevention Act for violating the Constitution's protection of state sovereignty. The Court has struck down myriad federal statutes regulating "economic issues," on First Amendment grounds. And so on.  

Simply put, there is nothing new about the Court striking down federal statutes regulating economic matters. What President Obama probably meant to say—let's give him the benefit of the doubt—is that the Court has not recently invoked the Commerce Clause to strike down a federal law purporting to regulate something that (in Obama's words) "I think most people would clearly consider commerce"—namely, health care or health insurance.

But that argument, stripped of all the president's bluster, is just a matter of question-begging. Because even if you grant that health insurance or health care is interstate commerce, that still does not answer the question that the Court must answer in the Obamacare cases: Can Congress can go so far as to mandate that people buy health insurance?  

Contrary to the president's assertion yesterday, there are no "well-established precedence [sic] out there" to guide the Court's decision, because no previous case has considered the question. The issue is without precedent.

The president may well continue to pound the table, attempting to dissuade the Court from nullifying his landmark legislative achievement. But he ought to leave the constitutional arguments to the solicitor general's office, because right now he's only vindicating the old saying: the lawyer who represents himself has a fool for a client.

Adam J. White is a lawyer in Washington, D.C.

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