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Conservative Law Prof Henry Monaghan argues Obamacare is Constitutional

Henry Paul Monaghan, a professor of constitutional law at Columbia Law School, is the latest conservative to support the constitutionality of the Affordable Care Act. On a column, he approved of the Supreme Court’s aggressive sequestering of Solicitor General Donald Verrilli.

 

“The marker for health care is distinctive (if not entirely unique), in several respects,” he wrote. “Virtually all of us will need and obtain health care at some point, but we often cannot predict when or in what ways we will need it. And for the vast majority of us, direct payment for the health care services we obtain would be prohibitively expensive. Yet not obtaining Medicare can be the difference between life and death.”

 

Having explained the situation, he went on to say that “These features help explain why, unlike many other markets, insurance is the overwhelmingly dominant means of payment in the health care market. They also explain why Congress has required that individuals be given emergency care without regard to their ability to pay. As a result, and again unlike other markets, uninsured individuals who are unable to pay directly for needed medical services necessarily shift the cost of those services to others — to health care providers, the government, individual with insurance and taxpayers.”



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He therefore concluded that, ” The individual health mandate surely passes constitutional muster under settled judicial principles. The Constitution’s Commerce Clause grants Congress the authority “to regulate commerce … among the several States.” … The purported limit on congressional power favored by the mandate’s opponents—between constitutionally permissible regulation of “activity ” and unconstitutional regulation of “inactivity ”—is simply unknown to Commerce Clause jurisprudence, is wholly unworkable, and makes no economic sense. … I recognize that many persons believe the health mandate is very bad legislative policy. But the appropriate judicial response to such a complaint has long been clear. The Court was admirably forthright about the point in its ruling in Munn v. Illinois in 1876: “For protection against abuses by the Legislature, the people must resort to the polls, not the courts.”

 

Monaghan is known for his highly cited essay, “Our Perfect Constitution,” which criticized activist judges who misuse the constitution to invent individual rights. He also backed Robert Bork, Reagan’s highly conservative choice for the Court.

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Daniel June Posted by on April 17, 2012. Filed under Breaking News,Politics. You can follow any responses to this entry through the RSS 2.0. You can skip to the end and leave a response. Pinging is currently not allowed.
  • CowboyUpAmerica

    The Democrats should not shut down the government…The Republicans in congress have funded the government and the congress has a duty to defund any unconstitutional law…

    The Robert’s Supreme Court decision declared ‘The Affordable Care Act’ a ‘tax’, and The Affordable Care Act tax is unconstitutional, because it is a ‘tax’ that the Democrats originated in the United States Senate…See Article I Section 7 of the US Constitution.

    The Affordable Care Act tax bill did not originate in the US House of Representatives as required by Article I Section 7 of the US Constitution for all taxes. The constitutionality as to where the tax bill originated, or the requirements for a tax bill / law under Article I Section 7 of the US Constitution, was not questioned or ruled upon in the Robert’s decision, and a tax’s constitutionality can only be questioned upon implementation…

    Further, If The Affordable Care Act is a ‘tax’, only the US House of Representatives can wave, exempt, or modify taxes through a bill originating in the US House of Representatives… NOT Obama… or anyone in the Executive or Judicial Branch. This is a constitutional requirement and the Congress may not, through a Law or Act, pass-on or delegate this constitutional requirement to the Executive or Judicial Branch of government. That is what the Democrats attempted to do inside The Affordable Care Act tax law. However, that act of transferring taxation powers to the Executive Branch requires an Amendment to the US Constitution…

    So, tomorrow on October 1st, a case needs to be filed against “The Affordable Care Act Tax” exemptions and based on the fact the taxation bill did not begin in the House as constitutionally required…