Claeys Comments on Justices' Approach to Health Care Law Challenge

Commenting in the Huffington Post, Professor Eric Claeys noted that most conservative lawyers coming of age in the second half of the twentieth century were more concerned with correcting the previous liberalism of the high court during the period of the 1950s through 1970s than with curbing Congress's regulatory reach, something that may have bearing on the upcoming arguments concerning health care reform.

"It is crucial to remember that Roberts and Alito both went to law school in the 1970s and both did significant service in the Reagan administration," said Claeys, pointing out that to Roberts and Alito, liberals may have appeared to be the judicial activists, while conservative justices may have appeared to them to have practiced restraint.

Claeys' remarks underscored the article's contention that oral arguments on the health care law will be not met with a partisan end-game at the Supreme Court, but rather will be up against a conflict between the economic libertarianism underlying the challenge to the individual mandate and the traditional principles of judicial restraint espoused by right-wing jurisprudence for more than half a century.

Health Care Reform: Why It's Safe From The Supreme Court, The Huffington Post, March 18, 2012.

"Next week's health care cases come from the U.S. Court of Appeals for the 11th Circuit, which did not buy the government's argument. But high-profile conservative judges on two other appeals courts did. Sixth Circuit Judge Jeffrey Sutton, a former Scalia law clerk, was the first among all federal judges to cross party lines to uphold the mandate. D.C. Circuit Judge Laurence Silberman, a Reagan-appointed greybeard of the conservative legal movement, did the same.

"The challengers' 'view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of' the cramped pre-1937 view of economic regulation, wrote Silberman. That reading 'has no foundation in the Commerce Clause,' he concluded."

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