The Law - Not Popular Opinion - Should Determine the Health Care Law's Fate


By Carrie Lukas

Recently, noted legal scholar and commentator Stuart Taylor wrote a piece for Newsweek detailing the diverging opinions in the legal community about the likely fate of the new health care law.  He describes the stakes as incredibly high: 


However the case turns out, any ruling by the justices on the constitutionality of the health-care law would be the most important pronouncement on the relative powers of the federal and state governments in many decades.


The most fundamental question is whether Congress's undoubtedly broad power to regulate activities affecting interstate commerce is so sweeping as to empower the government to require people who are engaged in no relevant activity at all other than living in the United States to buy health insurance.


Disturbingly, however, he speculates that some justice's perspective may be influenced by the state of public opinion.  He writes: 


...much may depend on where things stand when the issue reaches the justices. How popular or unpopular will the president's new law be then? How costly? How effective? What if the voters have by then elected a more conservative Congress that wants to repeal the law? Such factors are not supposed to influence constitutional interpretation, but sometimes they do.


For those of us who see this health care law as an outrageous and dangerous expansion of federal authority, it could be seen as good news that justices may be swayed by the public's perception of the law.  After all, overwhelmingly, the American people opposed the law when it was being voted on and now support the law's repeal. 


Yet it's disturbing to think that such a critical issue that will shape the future of our system of government could be in part determined by popular sentiment, which is both capricious and often manipulated by the media and political class.  Justices need to focus solely on the merits of the claim:  was the Commerce Clause truly meant to empower the federal government to compel citizens to buy a commercial product?  Those legal questions alone—not the latest opinion polls—should dictate the Court's decision.


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