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The Health Care CaseThe Supreme Court's Decision and Its Implications$
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Nathaniel Persily, Gillian E. Metzger, and Trevor W. Morrison

Print publication date: 2013

Print ISBN-13: 9780199301058

Published to Oxford Scholarship Online: September 2013

DOI: 10.1093/acprof:oso/9780199301058.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 12 June 2021

A Most Improbable 1787 Constitution

A Most Improbable 1787 Constitution

A (Mostly) Originalist Critique of the Constitutionality of the ACA

(p.28) Chapter 3 A Most Improbable 1787 Constitution
The Health Care Case

Richard A. Epstein

Oxford University Press

The United States has had two constitutions over the past 225 years. The first Constitution, which featured limited government and strong property rights, was crafted in 1787, after which it was duly ratified in a set of state conventions. The second was crafted during the New Deal by a set of Supreme Court decisions that inverted the old order by allowing large government agencies to operate freely in a regime of weak property rights. The second Constitution grants the federal government powers of taxation and regulation that are far greater than those in the 1787 Constitution. The force of this second Constitution, on both the liberal and conservative justices, was on full display in NFIB v. Sebelius (NFIB). Debate in the case blurred the lines between the two Constitutions by making it appear at critical junctures that the original Constitution supported this bold new initiative.

Keywords:   Supreme Court, Constitution, constitutional law, health care, Affordable Care Act, Commerce Clause, tax power, John Roberts, NFIB v. Sebelius, originalism

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