Chemerinsky acknowledged that a law requiring Americans to eat certain vegetables "might" -- might! -- infringe on constitutional liberties. But you would not be taking a huge leap to surmise that if and when Congress sees reason to enact such a law, plenty of legal thinkers will argue that the Constitution allows it.
Dellinger denounced this decision will be overturned because it has such _"radical implications." But how radical can it be to say that Congress may not do something that, since 1789, it has never wanted to do?
Nor would the ruling exactly put the federal government into a straitjacket. Writes Jonathan Adler, a law professor at Case Western Reserve University, "It is hard to see how a holding that would only prohibit a single federal enactment adopted in the nation's 200-plus-year history constitutes a 'major limit' on federal power." In fact, this decision probably would not affect anything else Washington currently does.
It wouldn't even prevent ambitious, expensive efforts to extend health insurance to everyone. The administration is free to offer more generous subsidies. It could limit future access for those who decline coverage. It could repeal the federal law requiring hospitals to provide emergency care to all, insured or not.
Would those options be as cheap or simple as compelling every American to buy coverage? Maybe not, which is why the mandate is so appealing to the president and his allies. But the nation's founders deliberately chose to prevent the government from doing certain things that may be efficient, attractive and even popular.
In considering this unprecedented intrusion, the courts had to choose between erring on the side of granting the government too little power or too much. Under the philosophy of our Constitution, it's not a hard choice.
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