Challenges to the Health-Care Law Are Wrong — And Right
In a provocative piece over at the National Law Journal, Wisconsin Law professor Andrew Coan stakes out a position that’s new to us: that both sides in the debate over the constitutionality of the Affordable Care Act are correct. And, at the same time, they’re both wrong.
(For background, click here for all of the LB coverage on the debate over the constitutionality of the law, arguably the signature domestic-policy achievement reached by the Obama administration.)
So what is Coan talking about? He explains, on the one hand, his assertion that both sides are right:
On the other hand, he writes:
But both sides, he writes, are also wrong; wrong to deny the validity of their opponents’ arguments.
Coan compares the current conflict to one that emerged during the presidency of George Washington, when Congress passed legislation incorporating a national bank. The bank’s proponents claim the Constitution gives Congress the powers to tax and to borrow money, and, by extension, establish a national bank.
The bank’s opponents, on the other hand, argued that, in Coan’s words, “if Congress could incorporate a national bank merely out of convenience, what could it not do?”
At the end of the day, the Supreme Court upheld the bank, ruling implicitly that “Congress is usually in a better position than the courts to determine how to carry those powers into effect.” If the people really object to a piece of legislation, they can vote Congress out of office.
Coan concedes that the national bank situation may not be directly applicable to the health-care situation. And he doesn’t weigh in on one side or another.
Instead, his request is refreshingly modest: