Obama's Legal Wizards (and Himself) Actually Hurt ObamaCare's Chances in the SCOTUS

June 24, 2012

by: Les Carpenter
Rational Nation USA
Liberty -vs- Tyranny

The Washington Post ran an article Saturday June 23rd pointing out that many "prominent" legal scholars believe tactical errors by President Obama's legal team of experts (tactics approved by him) actually may have actually damaged the likelihood of the Affordable Care Act (ACA or ObamaCare) surviving Supreme Court scrutiny.

The segment of the article that actually supports the argument made by the "prominent" legal scholars follows below. We should all be thankful that the Obama team of legal experts failed to see the advantage in using them as central to their arguments.

To defend the health-care mandate, for instance, the government could have cited past measures such as a 1792 law signed by President George Washington requiring able-bodied men 18 or older to purchase a musket and ammunition. Several scholars, even former president Bill Clinton, have cited the 18th-century law as an example of an individual mandate that happened to be imposed by a president with impeccable originalist bona fides.

“It was an ace in the hole,” said Akhil Amar, a Yale University constitutional law scholar. “You’ve got George Washington signing a bill that helps you. Why wouldn’t you use it?”

Another critic, Harvard University law professor Einer Elhauge, has questioned why the administration did not point the Supreme Court to some early health-care mandates adopted by early Congresses without any objection from the framers, including laws requiring ship owners to buy medical insurance for their seamen and for the seamen to fund hospital insurance for themselves.

Elhauge said he agreed with the government’s other arguments. But, he said, by failing to directly contest the premise that a purchase mandate was unprecedented, the government put itself in the more difficult position of defending what incorrectly looked like “an exotic new creature.”

“The challengers did a great job of framing the case so they could go downhill and the government had to go uphill,” Elhauge said. {Read More}

Via: Memeorandum