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The Tough Luck Constitution and the Assault on Health Care Reform
Written by a top Constitutional scholar with special expertise on the recent health care law debate
Analyzes the Affordable Care Act outside of the partisan debate, coming to a conclusion fully supported by Constitutional legal interpretation
Takes both a historical and analytical look at the Affordable Care Act
Chief Justice John Roberts stunned the nation by upholding the Affordable Care Act--more commonly known as Obamacare. But legal experts observed that the decision might prove a strategic defeat for progressives. Roberts grounded his decision on Congress's power to tax. He dismissed the claim that it is allowed under the Constitution's commerce clause, which has been the basis of virtually all federal regulation--now thrown in doubt.
In The Tough Luck Constitution and the Assault on Health Care Reform, Andrew Koppelman explains how the Court's conservatives embraced the arguments of a fringe libertarian legal movement bent on eviscerating the modern social welfare state. They instead advocate what Koppelman calls a "tough luck" philosophy: if you fall on hard times, too bad for you. He argues that the rule they proposed--that the government can't make citizens buy things--has nothing to do with the Constitution, and that it is in fact useless to stop real abuses of power, as it was tailor-made to block this one law after its opponents had lost in the legislature. He goes on to dismantle the high court's construction of the commerce clause, arguing that it almost crippled America's ability to reverse rising health-care costs and shrinking access.
Koppelman also places the Affordable Care Act within a broader historical context. The Constitution was written to increase central power, he notes, after the failure of the Articles of Confederation. The Supreme Court's previous limitations on Congressional power have proved unfortunate: it has struck down anti-lynching laws, civil-rights protections, and declared that child-labor laws would end "all freedom of commerce, and . . . our system of government [would] be practically destroyed." Both somehow survived after the court revisited these precedents. Koppelman notes that the arguments used against Obamacare are radically new--not based on established constitutional principles.
Ranging from early constitutional history to potential consequences, this is the definitive postmortem of this landmark case.
Chapter One: The Road to the Mandate
Origins of health insurance
After Medicare and Medicaid
Chapter Two: Appropriate Constitutional Limits
The enumerated powers
Necessary and Proper
The unhappy story of judicially crafted limits
A Constitution of subsidiarity
Why the mandate is constitutional
Chapter Three: Bad News for Mail Robbers
The invention of the constitutional objection
Barnett's libertarianism
The path to the Supreme Court
The Broccoli Horrible
From court to Court
Chapter Four: What the Court Did
Explaining John Roberts
Chapter Five: Where It Hurts
So what happens to the Medicaid expansion?
Your tough luck
Andrew Koppelman is John Paul Stevens Professor of Law, Northwestern University. His books include Defending American Religious Neutrality, A Right to Discriminate?, and The Gay Rights Question in Contemporary American Law.
"Andrew Koppelman has magnificently captured the current legal, political and policy-related lay of the land in Washington. His insightful analysis here should be mandatory reading for anyone concerned about the future of health care in America."--Tom Daschle, former Senate Majority Leader
"This book is a tour de force. It offers a compendium of telling facts and provocative arguments concerning the Affordable Care and the legal and political debates surrounding it. Koppelman persuasively unmasks a political and constitutional vision that says 'Tough Luck!' to the disadvantaged and reveals how that vision almost killed the health care act." --Richard Fallon, Harvard Law School
"This is the definitive book on the Affordable Care Act decision. Koppelman explains clearly and concisely the history of the lawsuit, the mandate it challenged, and the constitutional provisions on which the challenge was based. Most importantly, Koppelman explains the decision's implications for the future." --Timothy Jost, The Washington and Lee University School of Law
"Unlike the Affordable Care Act itself, Koppelman's Tough Luck Constitution is a short and enjoyable read. Like the Act, this book speaks truth about the public interest and offers a hopeful vision for the health care reform." --William Eskridge, Yale Law School
"Professor Koppelman's analysis of the constitutional fight to stop health reform is must-reading for anyone who desires a deeper understanding of the Constitutional story behind one of the most intense legal battles ever waged over a seminal advance in U.S. social welfare policy. Neither health policy nor constitutional theory and practice will ever be quite the same." --Sara Rosenbaum, George Washington University School of Public Health and Health Services
Politics, narratives, and pi±atas in health care
By Andrew Koppelman Obamacare has been like the title character in Samuel Beckett's Waiting for Godot: everyone talks about it but it never arrives. It is finally about to make its entrance. On 1 October 2013, all 50 states and the District of Columbia will open health insurance marketplaces (sometimes called 'exchanges') for people who aren't covered by their employer or a government program.
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