By defining the mandate as a tax, one that will not be uniformly applied, the Supreme Court ran afoul of the Constitution.

By David B. Rivkin Jr. and Lee A. Casey

ObamaCare is being implemented, having been upheld as constitutional by the Supreme Court in June in a series of cases now known as National Federation of Independent Business v. HHS. It is becoming increasingly clear, however, that the court took a law that was flawed but potentially workable and transformed it into one that is almost certainly unworkable. More important, the justices also may have created new and fatal constitutional problems.

ObamaCare, or the Affordable Care Act, was conceived as a complex statutory scheme designed to provide Americans with near-universal health-care coverage and to effectively federalize the nation’s health-care system. The law’s core provision was an individual health-insurance purchase mandate, adopted by Congress as a “regulation” of interstate commerce. The provision required most Americans to buy federally determined minimum health-care insurance, or to pay a penalty more or less equivalent to the cost of that coverage.

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To uphold the individual mandate as an exercise of the taxing power, the majority overlooked the natural meaning of the statutory text.

By David B. Rivkin Jr. and Lee A. Casey

The Supreme Court’s ObamaCare decision is both a triumph and a tragedy for our constitutional system. On the plus side, as we have long argued in these pages and in the courts, the justices held that Congress’s power to regulate interstate commerce cannot support federal requirements imposed on Americans simply because they exist. The court also ruled that there are limits to Congress’s ability to use federal spending to force the states to adopt its preferred policies.

However, in upholding ObamaCare’s mandate that all Americans buy health insurance as a kind of “tax,” the court itself engaged in a quintessentially legislative activity—redrafting the law’s unambiguous text. The court struck down ObamaCare as enacted by Congress and upheld a new ObamaCare of its own making.

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In “Reading Law,” Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner argue for paying close attention to the original meaning of the words in the Constitution and other legal documents.

(published in The Wall Street Journal, August 29, 2012)

By DAVID B. RIVKIN JR.

For many years now, a debate has raged over how best to interpret the Constitution and other canonical legal texts. One way of grouping the warring parties is to divide them according to their views of writing itself—the words on the page. The textualists feel a strong loyalty, even a moral commitment, to the words themselves and the meanings they were intended to convey. The non-textualists have a very different approach, guided by a peculiar view of democratic society and the law.

Like the government in Anthony Burgess’s “A Clockwork Orange”—setting out to adjust the behavior of inherently flawed men and women—non-textualists see the American electorate as a collection of people in need of improvement and democracy as too error-prone to do the job. Their solution is to vest judges with the ability to “adjust” the law in order to ensure a more “progressive” direction, loosely interpreting the wording of statutes and the Constitution and sometimes disregarding the wording entirely. The result is a search for non-democratic shortcuts as the best way to promote fairness and social justice.

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David Rivkin and Harvard Law Prof to Face Off June 15

Washington D.C. – As the U.S. awaits the Supreme Court decision on the Affordable Care Act (ObamaCare), the various factions pro and con continue to line up and weigh in on both whether and how the controversial law will stand. David Rivkin, who led the 26-state case against the U.S. government in Florida’s 11th District Court (whose judge, Roger Vinson, ruled in the plaintiffs’ favor, will meet Harvard Law professor Einer Elhauge, author of amicus briefs that assert the legality of the individual mandate. The debate is scheduled for 9:00 am, on Friday, June 15, at the Texas Bar Association’s Annual Conference in Houston.

For more information on the debate and the conference, visit www.texasbar.com.

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