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March 26, 2012
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Robert Kuttner

Robert Kuttner: Health Reform's Day in Court: Don't Bet the Farm on the Mandate

Co-founder and co-editor, 'The American Prospect'

The constitutionality of the Affordable Care Act, the subject of three days of oral argument before the Supreme Court beginning Monday, could well turn on whether the Court concludes that Congress can compel a citizen to buy a commercial product, in this case health insurance. The decision will be treated by commentators as either a huge victory or momentous defeat for President Obama, and either another dangerous over-reach by a right-wing court, or a prudent retreat by the court's conservatives. But this may be a complete misreading of the logic and the stakes. The individual mandate may or may not be unconstitutional, but it's dubious policy. And it would not be a fatal setback if the Court did find that it violated the Constitution.

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