The National Law Forum

The Blog of the The National Law Review

Obamacare on Trial: A Book Review

The National Law Review recently published a book review by S. Merchant of The National Law Review / The National Law Forum LLC, the book title is “Obamacare on Trial” written by Einer Elhauge.


The National Law Review

Obamacare on Trial features a collection of essays analyzing Obamacare and its ensuing litigation written and compiled by Harvard Law School alumnus and professor Einer Elhauge.  The brainchild of President Obama and arguably one of the most contentious and groundbreaking developments in the U.S. healthcare system, the Patient Protection and Affordable Care Act (PPACA or Obamacare) serves as a hot topic in politics today. Rather than take a strong stance on the merits of the Act, Professor Elhauge instead examines and validates Obamacare within the scope of its constitutionality. Among other aspects, he focuses his essays on such hallmarks of constitutional law as originalism, Congress’ spending power and the Necessary and Proper Clause.

Bookended by a preface and excerpts from Chief Justice Roberts’ opinion from the Supreme Court decision holding Obamacare as constitutional, the essays, fourteen in total, have been previously published in such magazines as The New York Timesand The Atlantic.  Their substance has not been altered but Professor Elhauge does take the opportunity to ruminate on the justices’ decision, provide background on his research process or comment on the initial response he received in a postscript after each essay. Many of these essays start out with an opponent‘s critique of Obamacare followed by his meticulous dismantling of the argument using case precedent and historical analysis.

Perhaps the most notable aspect of the collection is that it is virtually devoid of partisan ideology or an overt political agenda—this is especially interesting considering Professor Elhauge served as Chairman of the Antitrust Advisory Committee to the Obama Campaign. Indeed Professor Elhauge has also gone on the record publicly stating his opposition to a policy mandating the purchase of health insurance. His essays clearly define his stance on Obamacare—that being that the Act is in fact permissible under case law precedent, history and constitutional text.

This is not to say that Professor Elhauge’s work ignores contemporary context or the modern political landscape. One of the most thought-provoking parts of his collection is his through analogy between Medicare and Obamacare, based on the premise that both are “mandate[s] to buy health insurance.” However, Professor Elhauge’s pièce derésistance consists of the laws enacted in 1790 and 1792 by the Founding Fathers along with Congress requiring shipowners and seaman respectively to purchase health insurance. Neither statute was mentioned during oral arguments and Professor Elhauge underscores his position that Obamacare is not unprecedented in light of these laws.

Another one of Professor Elhauge’s favorite arguments is the reframing of the central issue of whether Obamacare encroaches on individuals’ personal liberties. Professor Elhauge argues in an essay that since the status quo consists of the insured paying for the uninsured’s medical expenses, a mandate requiring the uninsured to purchase health insurance actually lifts the burden from the insured. Thus, the crux of the issue transforms into who should ultimately be responsible for his or her medical bills. He concludes by noting that this was yet another claim not previously raised during oral arguments by Obamacare supporters.

Professor Elhauge’s collection of essays applies his unfailing logic and reliance on constitutional history to defy Obamacare opponents’ use of formalism. In the course of a mere 126 pages, he comprehensively details and overcomes the challenges posed against Obamacare and justifies the Act against the backdrop of constitutional law and history. The good professor didn’t graduate first in his class at Harvard Law for nothing.

Copyright ©2012 National Law Forum, LLC

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