Quote of the Day: Henry Paul Monaghan

Columbia Law professor Henry Paul Monaghan writing about the constitutionality of the individual mandate in The New Republic.

The individual health mandate surely passes constitutional muster under settled judicial principles….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….

The same is decidedly not true of the testing hypotheticals raised by members of the Court concerning mandates to purchase broccoli or automobiles: Individuals who wait to purchase such goods until they are needed do not undermine a larger regulatory scheme or shift costs to other consumers of those goods or to any other third party. Nor is the health mandate comparable to a requirement to purchase burial insurance, because no showing can be made that Congress would be responding to any real national problem….

The purported limit on congressional power favored by the mandate’s opponents—between constitutionally permissible regulation of “activity ” and unconstitutional regulation of “inactivity ”—is simply unknown to Commerce Clause jurisprudence, is wholly unworkable, and makes no economic sense.  

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2 Responses to Quote of the Day: Henry Paul Monaghan

  1. sunforester says:

    Our political elite have decided that their power is more important than our freedom. Our political elite have decided that they should control our economy as socialist dictators, instead of helping we the people enjoy the best free market possible. Our political elite have decided that our last protection of our wealth and our self-determination should disappear with the Supreme Court’s affirmation that our political elite know better than we the people what is good for us economically.

    Instead of kissing our free market and our freedom goodbye, we should kiss our political elite goodbye instead. Our Founders died fighting against a political elite who wanted to do the same unto us then as Prof. Monaghan encourages now. Fortunately, we don’t have to die fighting our political elite – we can just throw them out on their collective ears and take back our freedom as real Americans.

  2. I count Professor Monaghan as among three teachers who most influneced me in my academic career. The first was my seventh grade English teacher. The second was my constitutional law professor, Milton Cantor, at the University of Massachusets.

    I was happy to see that my own take on the health care issue mirrored Professor Monaghan’s although mine was hardly so carefully considered.

    Lois Lawrence
    BU Class 1979

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