The Supreme Court’s Collateral Damage
No matter, what the Supreme Court does tomorrow on the Affordable Care Act, it will be a BFD, as Joe Biden said. But some scholars argue that if the Court strikes down the legislation, the collateral damage to countless other laws could be far worse than the blow to Obamacare, as the decision could undermine the constitutional foundation for the last century of progressive reforms.
“It means an enormous amount. It means we’re living under a different Constitution that we were before,” warned Simon Lazarus, a longtime liberal legal activist, now senior counsel at the Constitutional Accountability Center.
At the heart of case are two constitutional questions. First, whether Congress has the authority to require Americans to purchase health insurance under the Commerce Clause of the Constitution. And second, whether the federal government can compel states to expand their Medicaid funding.
In a white paper published by the American Constitution Society last year, Lazarus argued that if both go down, “[it] will call into question the constitutional bases for, and hence could trigger copycat challenges to, provisions of other landmark laws and programs, including safety net programs such as Medicare, Medicaid, Social Security, and CHIP (the Children’s Health Insurance Program); civil rights law guarantees against private discrimination by places of public accommodation or in the workplace; federal grant programs in education, transportation, and other large-scale cooperative federalism initiatives; and environmental protection.”