The New Yorker's Jeffrey Toobin: "Heavy Burden"

Jeffrey Toobin doesn't think the 'heavy burden' of defending the Affordable Care Act should fall on Donald Verrilli Jr, Solicitor General, who argued for the government last week that the individual mandate in the bill was constitutional. Toobin believes the 'heavy burden,' in light of judicial precedent for the last 70 years, lies with the States in proving the mandate is unconstitutional.

"Consider, then, this question, posed to Verrilli by Justice Anthony M. Kennedy: “Assume for the moment that this”—the mandate—“is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?” Every premise of that question was a misperception. The involvement of the federal government in the health-care market is not unprecedented; it dates back nearly fifty years, to the passage of Medicare and Medicaid. The forty million uninsured Americans whose chances for coverage are riding on the outcome of the case are already entered “into commerce,” because others are likely to pay their health-care costs.

"Kennedy’s last point, about the “heavy burden” on the government to defend the law, was correct—in 1935..."


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