Henry Monaghan, a prominent conservative legal scholar (supporter of Citizens United and testified for Judge Bork in 1986) has penned a column in the New Republic supporting the constitutionality of the Affordable Care Act (h/t Huffington Post).
The individual health mandate surely passes constitutional muster under settled judicial principles. The Constitution’s Commerce Clause grants Congress the authority “to regulate commerce … among the several States.” The Court’s precedents establish without question that Congress may regulate intrastate economic activities that Congress (not the Court) reasonably concludes have a substantial effect on interstate commerce. The existence of such congressional authority is especially clear when the challenged provision itself is part of a comprehensive legislative scheme that regulates interstate commerce.
Moreover, the market for health care is distinctive (if not entirely unique) in several key respects. Virtually all of us will need and obtain health care at some point, but we often cannot predict when or in what ways we will need it. And for the vast majority of us, direct payment for the health care services we obtain would be prohibitively expensive. Yet not obtaining needed medical care can be the difference between life and death.
So, add another name to the ledger. Of course, at the end of the day it doesn’t matter what the conservative legal community thinks. It only matters whether there are five judicial activists on the court willing to overturn the ACA.