Challenges to the Health-Care Law Are Wrong — And Right

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:

For courts to uphold the act would thus cast aside a cherished principle of American constitutional law — that the national government is one of limited powers, with everything else left to the states.

On the other hand, he writes:

For courts to invalidate the act would thus cast aside another bedrock principle of American constitutional law — that Congress has plenary power to regulate interstate commerce, including health insurance, and also wide flexibility in choosing how to carry that power into effect.

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:

If their decisions follow the lead of most commentators, both courts and the country will fail to appreciate the hard compromises that either result would entail. One bedrock constitutional principle or another must give way. It would make for wiser judicial decision-making — and a healthier democracy — if we began to wrestle with this openly now.