Two weeks after publication, Andrew Koppelman's Yale Law Journal Online Essay, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, has received widespread attention from commentators in the blogosphere, Twittersphere, and general media.
In his essay, Koppleman analyzes Judge Vinson’s opinion in Florida v. U.S. Department of Health and Human Services (striking down the Affordable Care Act). Judge Vinson said that individual mandate was not a “Necessary and Proper” extension of the Act’s insurance industry reforms; instead, “the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself.” Koppelman shows why that reasoning amounts to a fallacy:
For some thoughts from commentators, see:
In his essay, Koppleman analyzes Judge Vinson’s opinion in Florida v. U.S. Department of Health and Human Services (striking down the Affordable Care Act). Judge Vinson said that individual mandate was not a “Necessary and Proper” extension of the Act’s insurance industry reforms; instead, “the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself.” Koppelman shows why that reasoning amounts to a fallacy:
If . . . Congress has no power to address negative consequences that follow from its own statutory scheme, then Marshall was wrong about mail robbery after all. Mail robbery is an adverse consequence of Congress’s decision to establish a post office: had it not done that, all those valuable documents would not be gathered together in one place. But, you might say, That sounds crazy; of course Congress can decide that it’s worth having a post office, even if establishing one creates negative side effects, which then must be addressed. But if—as Vinson admitted—Congress can also decide that people with preexisting conditions can be protected, then how can the cases be distinguished?
For some thoughts from commentators, see:
- Jonathan Chait, The Obviously Constitutional Mandate, The New Republic, May 11, 2011, http://www.tnr.com/blog/jonathan-chait/88123/the-obviously-constitutional-individual-mandate.
- Jonathan Cohn, It's Broccoli Time Again, The New Republic, May 9, 2011, http://www.tnr.com/blog/jonathan-cohn/88045/health-mandate-court-appeal-broccoli-richmond%20.
- Kevin Drum, Health Care Reform in One PowerPoint Slide, Mother Jones, May 10, 2011, http://motherjones.com/kevin-drum/2011/05/healthcare-reform-one-powerpoint-slide.
- Ezra Klein, Boehner's Debt-Ceiling Demands, Wonkbook (May 10, 2011, 7:44 AM), http://www.washingtonpost.com/blogs/ezra-klein/post/wonkbook-boehners-debt-ceiling-demands/2011/05/10/AFYPPMgG_blog.html#pagebreak.
- Ezra Klein, Health Care Reform's Attack on the Courts, Wonkbook (May 10, 2011, 9:17 AM), http://www.washingtonpost.com/blogs/ezra-klein/post/health-care-reforms-attack-on-the-courts/2011/05/09/AF365mgG_blog.html.
- Ezra Klein, The Long History of Constitutional Disagreement, Wonkbook (May 11, 2011, 11:56 AM),http://www.washingtonpost.com/blogs/ezra-klein/post/the-long-history-of-constitutional-disagreement/2011/05/09/AFIc1zpG_blog.html.
- Dahlia Lithwick, Judicial Review Under Review, Slate, May 16, 2011, http://www.slate.com/id/2293875/.
- Matt Yglesias, McCulloch v. Maryland, Think Progress (May 17, 2011, 9:59 AM), http://yglesias.thinkprogress.org/2011/05/mccullough-v-maryland/.
