Legal Commentary

Inaccurate legal claim from the Democratic Governors Association

By David Kopel

Today Nathan Daschle, Executive Director of the Democratic Governors Association, emailed me, as he does once every week or two. This week, his topic was urging me to sign a petition against the State lawsuits filed against Obamacare. [BTW, ?Obamacare? is a standard part of political discourse, used by, inter alia, Michael Barone, one of America?s foremost political reporters. It is similar to ?Reaganomics,? which was used to describe President Reagan?s economic policies, or ?Hillarycare,? which was used to describe the health policy proposals promoted by the then-First Lady.]  The letter from Mr. Daschle states: ?Legal scholars are unanimous: these lawsuits have no merit.?  The text of the petition itself has only four sentences, one of which is ?Legal scholars are unanimous in their opinion that these suits have no merit.?

The statements are indisputably false. As I have previously detailed, among the legal scholars who contend that Obamacare is unconstitutional are Randy Barnett and Michael McConnell, both of them among the most important constitutional scholars of our time. Their views about Obamacare have appeared in widely-read publications such as the Wall Street Journal, Washington Post, and Washington Times.

Accordingly, Republican Governors who receive the DGA petitions demanding that the lawsuits be terminated might take them with a grain of salt, in that a plainly false claim was used to help induce the petitioners to sign.

Well worth reading is Randy Barnett?s Heritage Foundation monograph on the constitutional issues.

Full post as published by The Volokh Conspiracy on April 12, 2010 (boomark / email).