Henry Paul Monaghan, the Harlan Fiske Stone Professor of Constitutional Law at Columbia Law School, wrote an article for The New Republic, in which he so eloquently makes a case for the Affordable Care Act (ACA). He argues that Congress is not creating a market which it seeks to regulate, that it cannot in fact, because “the insurance-based structure of the health care market is already firmly in place.” The New Republic has the story:

The Constitution of the United States creates a national government of enumerated and therefore limited powers. Accordingly, troubled members of the Court should be applauded for their efforts to search for the limits to any principle advanced to uphold the health care mandate of the Affordable Care Act (ACA), not made the target of strident and caustic criticism. The Court is a great institution, and its members don’t deserve such abuse.

That should be said, and I want to say it as clearly as I can. Nonetheless, I submit that sustaining the mandate would not give rise to the justices’ fears of boundless federal authority.

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.

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