How Questioning "Obamacare's" Constitutionality Went Mainstream

Friday, March 30, 2012


When "Obamacare" first debuted, opponents of the legislation criticized its cost and reachnot the possibility that it might be unconstitutional. But this week the Supreme Court spent three days hearing arguments on the mandated health care law. Brooke speaks to Politico's Josh Gerstein about how challenging Obamacare on constitutional grounds went from a zany fringe idea to a mainstream conversation.


Josh Gerstein

Hosted by:

Brooke Gladstone

Comments [8]

Chris Gray from New Haven, CT

Oh, c'mon!! This is the same Supreme Curt that just ruled strip searches in almost any jails completely legal? Yesterday? Wait, doesn't the Court rule at the end of the session? Why doesn't this ruling seem completely mistimed and doesn't it seem a warning of a Court run coup? So, the branches are at war over health care and political advertising but agree about this? Plus, now a lower court judge wants to haul the Justice Dept. to his court over what the President said yesterday?

Dis-function writ large!

Apr. 04 2012 08:03 PM
Lenore from Manhattan

Actually the administration has decided to adopt the phrase Obamacare as well.

Apr. 03 2012 11:06 AM

Interesting that On the Media is using the title "Obamacare" now. What does that signify? Isn't there a conservative bias in using that term? Doesn't it carry a strong derogatory attitude?

Apr. 02 2012 04:56 PM
Mark Richard from Columbus, Ohio

Same-sex marriage was a 'fringe' idea not too long ago. The problem I have with mainstream journalism is that it rejects an open-universe, action-reaction model of events in favor of the old progressive-era idea that History has a direction, and that direction toward urban modernist outlooks, whatever they are at any given moment in time. Quite a lot of journalists seem to be bewildered that politics and culture haven't necessarily followed the scenario they learned from their professors.

Apr. 02 2012 12:44 PM

Speaking of being possessed by madness, I can practically see the partisan bile spraying out of Charles's ears! :-)

"It is intellectually dishonest, and despicable reporting -- oh, and WRONG -- for Brooke Gladstone to have suggested to an NPR audience that the Constitutional challenge to ObamaCare was "fringe" or in any way illegitimate." - and yet you essentially confirm what was stated in the report. Nothing you've said contradicts what was reported. It certainly clicks with my recollection of how the opposition developed. Essentially, Republicans grasped at any argument to oppose the legislation and, over time, the constitutional angle got traction. If you believe Gerstein's basic account of history on this is wrong, by all means, do present your case.

"...(without a single Republican vote)..." An interesting observation about Republican at-all-costs obstructionism, but what does that have to do with anything?

As to the constitutionality of Obamacare, well, that's a separate matter from how the opposition evolved. Guess we'll all find out soon enough about that.

" this is one of the greatest-ever examples of the insular determination..." Wow, if this represents the worst you've seen, well, you've lived a charmed and sheltered life! May I suggest you put a little less effort into trying to be offended?

Apr. 01 2012 08:42 PM

Is it really a case of Obamacare opponents being zany and fringe or Obamacare supporters being arrogant and sophist?
Is the thought of the Tea Party movement being proved prescient and correct in their concerns while tenaciously withstanding vicious derision and defamation too much for some to accept?

Mar. 31 2012 09:13 PM

The whole of the issue being the mandate and congressional power to impose it, It's not the least bit suprising that the issue went "mainstream". While we can argue the good or the bad of it, there can be no argument that this mandate does "change the relationship" of govt with the governed.

I support the law but not the mandate. The ends do not always justify the means; especially in this case where the externality of the health care industry is a direct result of govt mandated emergency care (which, in principle, I support but think should have been funded by congress with the neccesary tax structure to support it). Congress, and by extension government, cannot have plenary power to "fix" that which they have "broken" for obvious reasons, e.g. a fox and henhouse argument.

It seems to me that the "neccesary and proper clause" is the controlling factor in the issue here. A mandate, insurance industry subsidy, or natl. tax followed by tax credits for those with insurance is a neccesary element to the health care "issue" overhaul, but of the three, only the mandate is without precedent which should rule it out as a "proper" exercise of congressional power.

Mar. 31 2012 11:06 AM

Brooke, I am not sure what sort of madness has possessed you, or what sort of left-wing echo chamber you live in, but we on the right were aware from the day that ObamaCare passed, that it was probably unconsitutional.

Your favored left-winger for this interview, Josh Gerstein, accurately recited the fact that David Rivkin and Lee Casey were (among many others) writing lengthy, detailed op-eds in the Wall Street Journal, from practically before the moment that ObamaCare was shoved into law by the Democrats (without a single Republican vote), arguing in detail why it was unconstitutional. Like this, from September of 2009:

Meanwhile, to her enduring embarassment, House Speaker Nancy Pelosi asked "Are you joking?" when questioned about Congress' authority to require all uninsured Americans to buy a policy of health insurance. And the Democrat Chairman of the House Judiciary Committee, Rep. John Conyers of Detroit, said that Congress' authority for health care reform resided in "the good and welfare clause, and some others." The Democrats, as some of us legal observers know, have been making it all up as they go. At one time, the theory was that the legislation was defensible on the basis of the "supremacy clause." Congress' taxing power might have served as a valid Constitustional basis, but the Democrats knew that they'd never get the bill passed, calling it a "tax." So they didn't.

In all my years of criticizing public radio's (no, I am not falling into the NPR vs. PRI vs. anything else trap) left-wing bias, this is one of the greatest-ever examples of the insular determination of public radio to not just silence conservatives, but to demonize them.

It is intellectually dishonest, and despicable reporting -- oh, and WRONG -- for Brooke Gladstone to have suggested to an NPR audience that the Constitutional challenge to ObamaCare was "fringe" or in any way illegitimate. I won't predict an outcome, Brooke; but if the challenge to the constitutionality of the individual mandate prevails, having won the day before a three-judge panel of the U.S. Circuit Court of Appeals and then by a majority vote in the United States Supreme Court... well, that ain't so fringe, anymore.

By the way, Brooke; unlike you, and Josh Gerstein, I AM a lawyer, with 25+ years' experience in health care litigation.

Mar. 30 2012 09:51 PM

Leave a Comment

Email addresses are required but never displayed.