Federalism and Health Care Reform

It seems appropriate at the beginning of this new year to talk about the new healthcare legislation.

One judge has found a crucial piece of the statute – the requirement that individuals buy health care – unconstitutional. It will surely go to the United States Supreme Court which may be very receptive to the attack. The Rehnquist and Roberts Courts have used federalism to narrow national power wherever it conflicted with the justices’ ideologies. The Court even found federal civil rights acts regulated states unconstitutionally, though the Fourteenth Amendment was primarily aimed at state misbehavior. Federalism proved to be a convenient way for the justices to overrule things they don’t like.

If the Supreme Court overturns the legislation it will be too late for the Democrats to try to change it. If the Supreme Court sustains the legislation, the Republicans may be unable to change it. So there may be grounds for some sort of deal between the parties that would substitute a system of state options or tax credits and therefore have a better chance of succeeding when this program goes in front of Roberts Court judges all too ready to substitute their personal views for constitutional law.

http://constitutionalismanddemocracy.wordpress.com/2011/01/04/federalism-and-health-care-reform/