Law prof: Upholding ObamaCare a dangerous proposition

Jessica M. Karmasek Nov. 15, 2011, 2:00pm

CHICAGO (Legal Newsline) - A Northwestern University law professor says if upheld by the U.S. Supreme Court, President Barack Obama's health care law "opens the door to federal regulations of unprecedented scope."

Stephen Presser is the Raoul Berger professor of legal history at Northwestern's School of Law and a professor of business law at the university's Kellogg School of Management.

In a special column published on CNN's website Tuesday, Presser says the Patient Protection and Affordable Care Act, if upheld, also raises the possibility of "limited consumer choices" and an "overweening" central government.

Fourteen states, joined later by 12 others, filed a challenge to the law in March 2010. The 26 states contend that its individual mandate requiring that all Americans purchase health insurance or face a $695 penalty every year is unconstitutional.

The states filed a petition in September to have their challenge heard immediately by the nation's high court.

Presser, who says a decision should be expected in June, is also of the opinion that the mandate is unconstitutional.

"The United States Congress, or perhaps a federal agency, could, conceivably, force Americans to buy environmentally friendly products, and could force us to take other steps to minimize our health risks (the infamous claim that we may all be ordered to eat our broccoli, or other fruits and vegetables)," he wrote.

"As I read the opinions of the courts that have examined the issue so far, they all seem to lead to the conclusion that if the federal government can force us to buy health insurance from private parties, there is very little -- if anything -- that the federal government may not do."

A decision to uphold the law would strike a blow to the 10th Amendment "from which it could probably not recover," Presser says.

The 10th Amendment, he says, provides that the federal government is to be of limited and enumerated powers, and that state and local governments are the ones charged with the police power.

Presser says it is up to the Supreme Court to "remind us about the basics of our constitutional scheme."

There are some "hopeful signs" that it will, he says.

The law professor points to a decision by Justice Anthony Kennedy last term.

Kennedy, he explains, recognized that the 10th Amendment's principle "best protects liberty by placing power closest to the people, rather than in an omnipotent central government."

Presser says Kennedy is considered to be the swing vote in this case.

"If he sticks to his principles, the 10th Amendment and the liberty it protects will be preserved," Presser wrote.

The Supreme Court's eventual ruling could play a part in Obama's re-election bid next year.

Another issue could be the participation of Justice Elena Kagan, who was solicitor general at the time the controversial law was passed.

Last week, the Judicial Crisis Network, a Washington-based group committed to upholding the Constitution and limited government, released a paper arguing that Kagan took part in conversations about defending the law while she was solicitor general.

"As President Obama's top advocate, Kagan headed the office responsible for formulating the administration's defense of PPACA -- and oversaw the arguments both on appeal and in the lower courts because of PPACA's national importance," the paper says.

"The president is now asking her to adopt the very same positions her office helped craft for him on this matter, but this time, as a Supreme Court Justice."

Kagan has not yet recused herself from hearing the lawsuits challenging the constitutionality of the health care package. She also apparently participated in a vote that declined to expedite Virginia Attorney General Ken Cuccinelli's challenge to the law.

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