Einer Elhauge is Petrie Professor of Law at Harvard University and Founding Director of the Petrie-Flom Center in Health Law Policy
Like most law professors, I did not take the constitutional challenge to Obamacare seriously at first. This is not because I favored its mandate to purchase health insurance. Indeed, I had publicly written in opposition to that mandate on policy grounds during the 2008 Obama campaign, when I was defending what was then Barack Obama’s own opposition to the mandate favored by Hillary Clinton. But Supreme Court precedent made it implausible to think the mandate was unconstitutional.
As it became clearer that the threat was serious, I took a closer look and began to write about what I was finding in newspapers and magazines like The New York Times, The New Republic, and The Atlantic. It turned out that the constitutional challenge not only lacked any persuasive support in text, history, or precedent, but simply ignored the fact that the constitutional framers themselves had approved many purchase mandates, including mandates to buy health insurance itself! Instead, the challenge relied on a series of legal moves that had long been discredited in rigorous legal analysis, including: a formalistic reliance on linguistic labels rather than real functional effects; a distinction between action and inaction that was well-known to fail; and the argument that the existence of a political power could not be justifiable if one could imagine it might be abused in absurd ways.
This book collects the various essays I wrote about these weaknesses, many of which unfortunately were never raised in the briefs or oral arguments and thus were never addressed in the opinions of the Supreme Court justices. I have not modified any of these essays because I want to preserve the sense of real-time dynamic engagement with the arguments that were being made both in and outside the Court by supporters of the constitutional challenge. However, I have added Postscripts to some of the essays to reflect new or additional information that I was unable to include in the original essays.
Finally, I include at the end of this book excerpts from the opinion of Chief Justice Robert on the constitutionality of Obamacare’s health insurance mandate, so you can judge for yourself whether you find it persuasive in light of my analysis.