Thursday, January 20, 2011

Do Any Tenured Florida Law Professors Think the Health Care Law is Constitutional?

I was interested to read this statement by over one hundred law professors from around the country regarding the constitutionality of the Affordable Care Act:
Given that the minimum coverage provision bears a close and substantial relationship to the regulation of the interstate healthcare market, Congress can require minimum coverage pursuant to the Constitution’s Necessary and Proper Clause. In a landmark decision studied by every law student, the Supreme Court in 1819 explained that the Necessary and Proper clause confirmed Congress’s broad authority to enact laws beyond the strict confines of its other enumerated powers: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end” are lawful, the Court wrote. Since then, the Supreme Court has repeatedly held that Congress, in regulating the national marketplace, can reach matters that when viewed in isolation may not seem to affect interstate commerce.
In 2005, Justice Antonin Scalia explained that the necessary and proper clause gives Congress broad authority to ensure that its economic regulations work. In Justice Scalia’s words, “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” Just last term, a majority of the Supreme Court, in an opinion joined by Chief Justice John Roberts, wrote that in “determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”

The ACA’s minimum coverage provision fits easily within this framework.
It goes on, in a mildly persuasive manner, from there.

Naturally I was curious to see which professors from our many Florida law schools signed on to this statement, as the list includes national luminaries such as Yale's Jack Balkin, UC Irvine's Erwin Chemerinsky, Chicago's Geoffrey Stone and many others.

So who signed on from our glorious Sunshine State, where nearly 8 million Floridians have pre-existing conditions (boy, we're a sick lot, huh)?

Only FSU's Franita Tolson, who is an Assistant Professor up in Tally (though she's on tenure track and we hope she gets there).

I'm happy to see Professor Tolson voice her opinion, but what the hail happened to the faculties of the University of Miami, Nova, FIU, Gainesville etc.?

Nobody at any of these esteemed institutions has an opinion on one of the more pressing legal issues of the day?

In unrelated news, it seems none other than Steely Dan has written a song to our very own Godwhacker!

Check it out above.

(No word yet on whether an ode to swlip is forthcoming.)


Anonymous said...

I like the law for what it does (or at least hopes to do), but I'm still not convinced that it is actually constitutional. Citing Scalia and Roberts is just silly. I can hear Scalia now, "[d]o you REALLY think that the framers would have thought it constitutional to mandate that every Virginia farmer buy health insurance?"

Godwhacker said...

Thanks for the nod SFL, but you know who borrowed what from whom. I only hope that on occasion I live up to the task.