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Keep Politics Out of the Health Care Litigation

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It should come as little surprise that attacks on the landmark Affordable Care Act have included every conceivable objection, including constitutional claims. Throughout our history, many of our nation's most significant legislative achievements, including several provisions of the Social Security Act and the minimum wage law, were subjected to similar constitutional objections, and each of these laws was upheld by the Supreme Court as well within Congress's power to regulate.

What is somewhat more perplexing is that these ideologically driven objections have been accepted by two federal trial court judges, whose decisions overlook longstanding Supreme Court precedent and instead embrace policy arguments that could render many of our landmark laws, like Social Security and Medicare, beyond the power of Congress.

Former acting Solicitor General Walter Dellinger reiterated during a telephone briefing my organization held to mark the Affordable Care Act's one-year anniversary that "it is not a hard question" whether the law is constitutional, and that Chief Justice John Roberts will likely write the majority opinion upholding the law. Charles Fried, who was a former Solicitor General for President Ronald Reagan, said about the same during testimony before the Senate Judiciary Committee, stating, "I am quite sure that the health care mandate is constitutional."

Given the agreement between legal luminaries with such divergent political backgrounds, why have arguments that the ACA is unconstitutional made it as far as they have?

As I explained in a column in The Hill yesterday, "The two recent federal court decisions invalidating the health care law represent a new and dangerous movement -- both in the judiciary and in the political sphere -- to push an outcome-driven approach to judicial decision-making and call it a valid theory of constitutional interpretation. These decisions are not based on legal reasoning, but on policy claims that must be shown for what they are - a radical attempt to turn the clock back on democracy."

The proliferation of this type of reasoning in our courts threatens the integrity of our legal system, inserting into our jurisprudence a radical and rejected conception of the Constitution. If such reasoning were accepted by the Supreme Court, it would imperil the constitutional footing of some of this country's most fundamental achievements, including Medicare, Social Security and civil rights laws.

Reasonable people can and should continue to disagree about how best to regulate our health care system. But as we mark the one-year anniversary of the Affordable Care Act, let us remember not to conflate the wisdom of the legislation with its constitutionality. There is no room in our courts, or in public discussion about our country's founding legal document, for political talking points.