Karlan’s Court: The Health Care Challenge Threatens All Regulation


  • Pamela Karlan
Publish Date:
March 11, 2011
Publication Title:
Boston Review, March/April 2011
Op-Ed or Opinion Piece
  • Pamela S. Karlan, Karlan's Court: The Health Care Challenge Threatens All Regulation, Boston Review, March/April 2011.
Related Organization(s):


The Patient Protection and Affordable Care Act—which critics sometimes label Obamacare, as if the issue were the president, rather than providing adequate and affordable medical care—is under sharp legal attack, condemned as unconstitutional by conservative federal judges in Virginia and Florida.

Yet the grounds for the constitutional assault, ironically, stem from the Act’s conservatism, not its radicalism. If Congress had voted to provide every American with health care through a national health service, that new law would be safe from constitutional challenge. As would be laws that provide tax-supported health insurance to everyone by levying a special tax on businesses that provide no insurance to their workers, or even larding a special excise tax onto fattening foods.

It has long been understood that the power to tax and spend—enumerated in Article I of the Constitution—lies largely with Congress: it decides what to tax and how to spend the revenue. To be sure, those powers are limited, but the limits come from other constitutional provisions—for example, the First Amendment would prohibit Congress from imposing a special tax on atheists or providing better benefits to registered Republicans—and, most importantly, from our democratic system, which gives voters the power to eject from office those representatives who support objectionable policies.