Countless scholars and practitioners from across the political spectrum have affirmed the ACA’s firm constitutional grounding under the Commerce Clause, supported by Supreme Court precedent dating back to the 1824 case Gibbons v. Ogden. 

“I am quite sure that the health care mandate is constitutional,” said former Reagan Solicitor General Charles Fried during a Senate Judiciary Committee hearing, explaining that understanding the law’s constitutionality requires nothing more than looking to Chief Justice John Marshall’s statement in Gibbons, that Congress’ power is “to proscribe a rule by which commerce is governed.”

As a recent American Constitution Society Issue Brief by Simon Lazarus points out, the health care system is a $2 trillion industry with a wide-ranging impact on the nation’s economy and therefore well within the constitutional power of Congress to regulate.

More than 130 law professors agreed, signing onto a statement that declares, “The current challenges to the constitutionality of this legislation seek to jettison nearly two centuries of settled constitutional law.” 

It is one thing for a court to throw out laws that are shoddily drafted and have a questionable constitutional basis, but to invalidate a law based on a novel and ideological rejection of widely accepted constitutional interpretation is pure and simple judicial activism.

Unfortunately, these politically motivated challenges threaten much more than the Affordable Care Act. If Congress cannot regulate an industry with such an enormous impact on our economy, what limit is there on the ability of judges to jettison other laws with which they disagree?  If accepted by the Supreme Court, these arguments would threaten the constitutional footing of many of this country’s most fundamental legislative achievements, including Medicare, Social Security and civil rights laws, and call into question the integrity of our legal system. 

The two recent federal court decisions invalidating the health care law represent a new and dangerous movement — both in the judiciary and in the political sphere — to push an outcome-driven approach to judicial decision-making and call it a valid theory of constitutional interpretation. These decisions are not based on legal reasoning, but on policy claims that must be shown for what they are – a radical attempt to turn the clock back on democracy.

Caroline Fredrickson, Executive Director of the American Constitution Society