on Jul 5, 2012 at 12:45 pm
As the dust settles, we can start to assess the contribution of legal scholars to the Court’s analysis of the Affordable Care Act. (As you may have heard, the Court upheld the law.)
First and foremost is Professor Randy Barnett of Georgetown Law School. Over the past two years, Barnett repeatedly and forcefully argued that the Commerce Clause did not permit Congress to regulate “inactivity,” such as an individual’s failure to purchase health insurance. Professor Barnett rightly deserves credit for transforming an outlier argument into one adopted by five of the nine Justices. His contribution to the debate has been prominently, and deservedly, acknowledged by many before me – in fact, I can’t remember the last time a law professor’s scholarship was the subject of a front-page New York Times article, as it was here. (As Professor Barnett has already written on this blog, he never imagined his arguments would prevail before a Court that ultimately concluded Congress had the constitutional authority to enact the law.)
Less well known is the influence of the “New Textualists,” a group of scholars that includes Akhil Reed Amar (Yale), Jack Balkin (Yale), and Einer Elhauge (Harvard). These Professors assert that liberals err in ceding originalist and textualist reasoning to conservatives, arguing that oftentimes these sources support progressive interpretations of the Constitution. For example, in the months leading up to the decision, Amar and Elhauge cited laws from the 1790s requiring purchase of muskets and health insurance for sailors as providing support for Congress’s power to enact the individual mandate, which Justice Ginsburg also noted her opinion. (You can read more here about the New Textualists’ influence.) And of course Professor Balkin particularly deserves credit for declaring that the Affordable Care Act is a valid exercise of Congress’s taxing power — the argument that ultimately garnered five votes to uphold the law.