Prof. Eric Freedman Weighs In on Supreme Court and Obama’s Health Care Law

Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law

The Supreme Court and Obama’s Health Care Law
By John Schwartz
New York Times
December 18, 2010


Professor Freedman of Hofstra noted that even if the justices were reluctant to accept the government’s primary argument that inactivity can be controlled under the Commerce Clause, there are other grounds for finding the health care law constitutional. The most attractive to the court, he suggested, might be categorizing the fine for not buying health care as a tax. He noted that a while only a handful of cases had restricted the power of Congress, under the Commerce Clause, the power to tax has almost always been upheld. The Obama administration has made the tax argument in court, despite having argued during Congressional debate that the financial penalties under the individual mandate were not a new tax.

That seemingly uncomfortable conflict for the administration might suggest a path to upholding the law. A finding that the mandate is in fact a tax — and thus constitutional — could mean “the Obama administration might gain a long-term legal victory at the cost of a short-term political loss,” Professor Freedman said.

Read the full article at nytimes.com.

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