There’s an interesting story in today’s Globe about how two of the architects of Romney/Obamacare were just so startled that the constitutional challenges to the federal law got as far as they did.
After countless hours crafting the universal health care law in Massachusetts as an adviser to Governor Mitt Romney and then on the national level for the Obama administration, MIT economics professor Jonathan Gruber couldn’t believe that any judge would seriously entertain arguments against the central plank of both plans.
“I remember a few meetings where someone raised the question of a constitutional challenge,” he said of his time in Washington helping to create the Affordable Care Act, with its requirement that people have health insurance or pay a penalty. “Everyone would say that expert lawyers had been consulted, and that there was no issue.” …
“The oral arguments were like living in an Ayn Randian nightmare,” he said, referring to the late author revered by conservatives. “They were taking these wacky theories seriously.” …
The belief was the Commerce Clause precedent was robust and provided ample justification for what was being done,” [John] McDonough said. “We were advised by constitutional lawyers to make clear why we were doing what we were doing, and what our justification was. The bill presented the rationale for why were acting rationally.”
He said administration lawyers and constitutional scholars argued that while there would probably be legal challenges, it was laughable to think that the Supreme Court would take seriously any challenge to Congress’s authority to regulate commerce….
Gruber said he was surprised that a majority of the court “disagreed with so many constitutional experts” on the Commerce Clause. “I was quite frankly stunned that what were considered nuisance arguments got as far they did.”
“Wacky theories.” ”Nuisance arguments.” Astounding, really, in light of the fact that those theories just picked up five votes on the Supreme Court, and so are now pretty much the law of the land (thanks for that, guys). The only way these folks could have been as blindly and foolhardily confident as they were is if they were only talking to people who already agreed with them that the mandate approach to a national health care law was a good idea. Because the argument that the Commerce Clause doesn’t authorize an individual mandate has, in my view at least, always been a credible one. And it should have been perfectly obvious to anyone who studies the Supreme Court that, given the makeup of the current Court, that argument would have pretty good traction there.
Let this be a lesson to those crafting complicated, boundary-pushing legislation: you might want to talk with someone outside your cocktail party circle before you conclude that your project is on legally solid ground.