Federalism & Separation of Powers - 'Health Laws of Every Description': John Marshall’s Ruling on a Federal Health Care Law
Robert G. Natelson
The Independence Institute; Montana Policy Institute
David B. Kopel
Independence Institute; Denver University - Sturm College of Law
June 10, 2011
Engage, Vol. 12, No. 1, pp. 49-54, June 2011
University of Denver Legal Studies Research Paper No. 11-03
If John Marshall, the greatest of Chief Justices, were to hear a challenge to the constitutionality of the Patient Protection and Affordable Care Act of 2010, how would he rule? Would the nationalist justice who, according to the New Deal Supreme Court, "described the Federal commerce power with a breadth never yet exceeded," agree that federal control of health care was within that power?
In the fictional opinion below, Marshall rules on the constitutionality of a bill similar to the Patient Protection and Affordable Care Act. We constructed this opinion chiefly from direct quotation and paraphrases of Marshall’s own words, as expressed in his judicial pronouncements, his newspaper articles, and his speeches at the Virginia ratifying convention.
Our study of the full text of Marshall’s works revealed him to be a far more restrained justice, who relied far more on established authority, than the caricature drawn by case book editors and law professors whose expurgated versions of his opinions depict him as an activist in the cause of federal power. One striking illustration is the treatment afforded Marshall’s own statement in Gibbons v. Ogden that "health laws of every description" are outside the scope of the federal commerce power. The statement has been cited with approval by other Supreme Court justices at least 20 times.
Number of Pages in PDF File: 6
Keywords: John Marshall, Affordable Care Act, Gibbons v. Ogden, Health Care
JEL Classification: K20Accepted Paper Series
Date posted: February 1, 2011 ; Last revised: April 26, 2012
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