You can add Columbia University Law Professor Henry Paul Monaghan, a man of impeccable conservative credentials, to the list of rightist legal scholars who think the Supreme Court should rule that the Affordable Care Act is constitutional.
Writing for the Web site of The New Republic, Monaghan MADE HIS CASE that ObamaCare’s “individual health mandate surely passes constitutional muster under settled judicial principles.”
Moreover, the market for health care is distinctive (if not entirely unique) in several key respects. 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 needed medical care can be the difference between life and death.
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, individuals with insurance, and taxpayers.
In that way, Congress is not creating a market which it then seeks to regulate. The insurance-based structure of the health care market is already firmly in place. That is why it was well within Congress’s discretion to design legislation to operate within, and to address problems posed by, this vast market.
Mike Sacks says THIS of Monaghan’s essay:
Monaghan’s arguments echo not only those made by the federal government in its briefs and at oral argument, but also those of the handful of other Reagan-era graybeards of the conservative legal movement who have backed Obamacare’s constitutionality in the two years leading up to the Supreme Court’s review…
What makes Monaghan’s piece unique, however, is that it comes after the oral arguments in which the conservative justices upended conventional wisdom in their apparently enthusiastic embrace of the position put forward by the mandate’s challengers, despite the calls for restraint coming from right-of-center jurists who made their names decrying judicial activism.