NEW YORK (MainStreet) Does the Affordable Care Act (ACA) violate the "origination" clause? What about the First Amendment?
As law professor Josh Blackman observes in his book, Unprecedented, the Constitutional Challenge to Obamacare (PublicAffairs, 2013), President Barack Obama, accomplished what Teddy Roosevelt, FDR, LBJ, Richard Nixon and Bill Clinton failed to accomplish - a law that reformed how Americans are insured to pay for medical services.
Blackman recently addressed the Philadelphia chapter of the Federalist Society about the constitutionality of the ACA, commonly referred to as Obamacare. He observed that conservatives and liberals have changed positions about healthcare reform for more than two decades now. He stressed that the individual mandate, so abhorrent to conservatives now, was first advanced by some Republicans as an alternative to Hillarycare in the early 1990s. Romneycare was another Republican initiative that contained a mandate.
"There are many unprecedented things about the ACA," Blackman said. "There are a lot aspects to it that are stunning. It is novel in that it was the first time Congress forced Americans to buy a product. It was also passed along along a strict party line vote - no Republicans voted for the bill."Blackman says that the Supreme Court addressed the mandate issue in 2012. The famous Roberts vote was such a shock to most people that two major cable news networks reported it incorrectly. They were so certain that the conservative majority in the Court would rule against Obama.
"In order to save the law from being struck down, the Chief Justice changed it from a requirement to purchase insurance to a tax," Black said. "The Chief Justice called it a tax in order to save it constitutionally. He used a 'saving construction' which means you take a statute and make the words mean something they do not. Roberts obviously did not want to strike down the law. So he pretended it was a tax."