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Friday, July 06, 2012

Constitutionality and political workability, redux

Back in April, I wrote about a Ronald Dworkin essay that argued that ACA was the only politically feasible way to obtain universal health care and that the Court must consider the political realities in deciding on constitutionality, which is the point of McCulloch. If the end (universal health care) is proper but Medicare-for-all is not politically feasible, must the Court defer to Congress choosing a different, politically feasible means to that proper end, so long as it does not run afoul of an individual liberty (which Barnett, Rivkin, et al. continually disclaimed).

One common opinion is that this decision (invalid under Commerce, valid under Tax) will not have much practical effect. Congress rarely enacts mandates and now, when it must do so, it can rely on the Taxing Power. But here is where political reality comes back into play. We are in a period in which no one in Congress wants to enact anything called a tax. First, it makes it  impossible to get any Republicans on board, given the influence of the Tea Party and/or Grover Norquist and the generalopposition to all taxes. Second, it is political death because a tax always can and will be demogogued into a "tax increase" and used to bludgeon any official to death in the next election.

So the effect may be to make it impossible for Congress to act vigorously in many areas going forward, because one power source has been cut off and the one that has been allowed is not practically useful.

Posted by Howard Wasserman on July 6, 2012 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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Nah, you can still do lots of stuff with tax cuts. It's bad policy, but that's the direction NFIB pushes us.

Posted by: BDG | Jul 6, 2012 5:24:59 PM

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