AAI associate scholar Robert Steinbuch was recently published by The National Law Journal. Steinbuch opined on the Supreme Court’s recent Obamacare ruling, arguing that the ruling should not come as particularly surprising for legal academics:
The Supreme Court’s ruling that the insurance mandate in the Patient Protection and Affordable Care Act exceeded Congress’ authority under the commerce clause was not particularly surprising if you didn’t listen too closely to the vast majority of legal academics. Although the academy is significantly diverse in gender, race, sexual orientation and, to some extent, even national origin, law professors remain remarkably monolithic in viewpoint. Their political thinking is generally liberal. And the legal academy is typically favorable to a highly empowered federal government — with some good historical reason. It was a strong view of federal power and the commerce clause that allowed Congress and the president to drag a resistant South away from explicit discrimination persisting almost a century after the enactment of the 14th and 15th amendments. And law professors still properly view these events as one of the most dramatic positive political and legal events occurring in their lifetimes. This viewpoint, however, clouds legal academia’s perspective, which led to the academy-initiated popular chorus chanting the constitutionality of the insurance mandate under the commerce clause.
Outside the legal academy, the Court’s action on the commerce clause was predictable based on the law. Congress itself knew its action was a stretch. The nonpartisan Congressional Research Service warned that “[w]hether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service.”
You can read Steinbuch’s full piece here, at The National Law Journal.