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The Tough Luck Constitution and the Assault on Health Care Reform 1st Edition

by Andrew Koppelman (Author)
4.7 4.7 out of 5 stars 2 ratings
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Chief Justice John Roberts stunned the nation by upholding the Affordable Care Act--more commonly known as Obamacare. But legal experts observed that the decision might prove a strategic defeat for progressives. Roberts grounded his decision on Congress's power to tax. He dismissed the claim that it is allowed under the Constitution's commerce clause, which has been the basis of virtually all federal regulation--now thrown in doubt.

In The Tough Luck Constitution and the Assault on Health Care Reform, Andrew Koppelman explains how the Court's conservatives embraced the arguments of a fringe libertarian legal movement bent on eviscerating the modern social welfare state. They instead advocate what Koppelman calls a "tough luck" philosophy: if you fall on hard times, too bad for you. He argues that the rule they proposed--that the government can't make citizens buy things--has nothing to do with the Constitution, and that it is in fact useless to stop real abuses of power, as it was tailor-made to block this one law after its opponents had lost in the legislature. He goes on to dismantle the high court's construction of the commerce clause, arguing that it almost crippled America's ability to reverse rising health-care costs and shrinking access.

Koppelman also places the Affordable Care Act within a broader historical context. The Constitution was written to increase central power, he notes, after the failure of the Articles of Confederation. The Supreme Court's previous limitations on Congressional power have proved unfortunate: it has struck down anti-lynching laws, civil-rights protections, and declared that child-labor laws would end "all freedom of commerce, and . . . our system of government [would] be practically destroyed." Both somehow survived after the court revisited these precedents. Koppelman notes that the arguments used against Obamacare are radically new--not based on established constitutional principles.

Ranging from early constitutional history to potential consequences, this is the definitive postmortem of this landmark case.
Previous page
  1. ISBN-10
    0199970025
  2. ISBN-13
    978-0199970025
  3. Edition
    1st
  4. Publisher
    Oxford University Press
  5. Publication date
    March 22, 2013
  6. Language
    English
  7. Dimensions
    8.3 x 0.8 x 5.6 inches
  8. Print length
    208 pages
  9. See all details
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Editorial Reviews

Review

"Andrew Koppelman has magnificently captured the current legal, political and policy-related lay of the land in Washington. His insightful analysis here should be mandatory reading for anyone concerned about the future of health care in America."--Tom Daschle, former Senate Majority Leader

"This book is a tour de force. It offers a compendium of telling facts and provocative arguments concerning the Affordable Care and the legal and political debates surrounding it. Koppelman persuasively unmasks a political and constitutional vision that says 'Tough Luck!' to the disadvantaged and reveals how that vision almost killed the health care act." --Richard Fallon, Harvard Law School

"This is the definitive book on the Affordable Care Act decision. Koppelman explains clearly and concisely the history of the lawsuit, the mandate it challenged, and the constitutional provisions on which the challenge was based. Most importantly, Koppelman explains the decision's implications for the future." --Timothy Jost, The Washington and Lee University School of Law

"Unlike the Affordable Care Act itself, Koppelman's Tough Luck Constitution is a short and enjoyable read. Like the Act, this book speaks truth about the public interest and offers a hopeful vision for the health care reform." --William Eskridge, Yale Law School

"Professor Koppelman's analysis of the constitutional fight to stop health reform is must-reading for anyone who desires a deeper understanding of the Constitutional story behind one of the most intense legal battles ever waged over a seminal advance in U.S. social welfare policy. Neither health policy nor constitutional theory and practice will ever be quite the same." --Sara Rosenbaum, George Washington University School of Public Health and Health Services

Book Description

The definitive postmortem of the landmark Obamacare case.

Product details

  • Publisher ‏ : ‎ Oxford University Press; 1st edition (March 22, 2013)
  • Language ‏ : ‎ English
  • Hardcover ‏ : ‎ 208 pages
  • ISBN-10 ‏ : ‎ 0199970025
  • ISBN-13 ‏ : ‎ 978-0199970025
  • Item Weight ‏ : ‎ 11.8 ounces
  • Dimensions ‏ : ‎ 8.3 x 0.8 x 5.6 inches
  • Customer Reviews:
    4.7 4.7 out of 5 stars 2 ratings

About the author

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Andrew Koppelman

Andrew Koppelman

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Andrew Koppelman is John Paul Stevens Professor of Law, Professor (by courtesy) of Political Science, and Philosophy Department Affiliated Faculty at Northwestern University. He received the Walder Award for Research Excellence from Northwestern, the Hart-Dworkin award in legal philosophy from the Association of American Law Schools, and the Edward S. Corwin Prize from the American Political Science Association. His scholarship focuses on issues at the intersection of law and political philosophy. He has written more than 100 scholarly articles and eight books, most recently Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022). You can find his recent work at andrewkoppelman.com.

Customer reviews

4.7 out of 5 stars
4.7 out of 5
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Top reviews from the United States

Genesis A. Slaughter
5.0 out of 5 stars Five Stars
Reviewed in the United States on August 23, 2017
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This a book about the hard truth no one wants to hear
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4.0 out of 5 stars How the legal case against Obamacare fared in Federal Courts
Reviewed in the United States on May 6, 2013
I expected this book to cover the whole range of opposition to The Affordable Care Act (Obamacare): right-wing media rants, Tea Party opposition, opposition from Governors, Attorneys-General, Washington politicians, etc. Instead, the book concerns itself with the legal challenge to the ACA in the lower Federal courts, and, especially, in the Supreme Court. Particular focus is given to the ACA's mandate, a mechanism Obama had once criticized, but resorted to in hopes that it would achieve something reasonbly close to universal health care coverage.

Everything is presented clearly enough, but I struggled a bit with the constant references to earlier Supreme Court decisions and the precedents they set, and also with some of the legal language. Still, none of it was too off-putting for, in my case, a reader who knew little of the law in general and Constitutional Law in particular.

It turns out that a book with a narrow focus on the legal arguments is a welcome one. After all, experts, reporters, and the general public alike were confused and quite suprised by Justice Roberts' decision to uphold the main argument against Obamacare's mandate, and yet find that mandate, and most of the rest of Obamacare, constitutional on a different basis. What was his judicial reasoning, and what were his personal reasons? This book gives useful background and compelling insight into both questions.

Koppelman is pretty fair in presenting the legal arguments made against the Affordable Care Act and its mandate; however, his personal attitude about those challenges is clearly seen in this paragraph near the end of Chapter 4:

"Isn't it odd that the mandate, which a few years earlier was the Republican alternative to Clinton's health plan, suddenly became, once Obama supported it, an intolerable intrusion on a new, unenumerated liberty? May we not suspect that, if Obama had rejected the mandate and chosen a different mechanism, those wonderfully creative Republicans would have invented a different constitutional rule, which that mechanism would have violated?"
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