LEGALVIEW: High court will strike down Patient Protection and Affordable Care Act

By David Ziemer

The Daily Record Newswire

Do you remember where you were when you heard the news of the United States Supreme Court's opinion in U.S. v. Lopez, 514 U.S. 549 (1995)?

I know exactly where I was: sitting in my 1983 Oldsmobile Custom Cruiser station wagon in the parking lot of the Burger King on Lisbon Avenue, eating a Double Whopper with cheese and reading the Wall Street Journal.

There, in a small article, was the great news that for the first time since the New Deal, the Supreme Court had struck down an act of Congress on the grounds that it exceeded its power under the Commerce Clause. Personally, it was like reading that Western Civilization had finally triumphed over barbarism. Professionally, whole new vistas suddenly appeared.

I proceeded to try to obtain dismissals of every federal felon-in-possession charge I had pending against a client. They seemed certain to succeed at the time. After all, the felon-in-possession statute is, just like the Gun-Free School Zones Act, a criminal statute prohibiting wholly intrastate, non-economic activity. Under the reasoning in Lopez, 18 U.S.C. 922(g) was not a regulation of interstate commerce, and thus patently unconstitutional, at least as applied to mere possession.

Unfortunately, the courts didn't agree with me, and now, 16 years later, only one other statute has been struck down by the Court pursuant to the precedent in Lopez.

But now, as we begin a new year, if there is one thing we can all look forward to in 2012, it is that lightning will strike a third time and the Court will strike down the Patient Protection and Affordable Care Act.

Much has changed since 1995. I know that when I hear the law has been struck down, it won't be in the Wall Street Journal the next day. News travels faster these days. It will be the biggest news story of the year and we will find out about it on the Internet almost contemporaneously with its issuance at 9 a.m. central time, on a glorious morning.

I expect there will be celebrations akin to when people heard World War II had ended, with total strangers kissing in the street and revelry going on all day and night.

But unfortunately for me, it will not be as joyous, personally or professionally, as when Lopez was decided.

Personally, it's just not a big deal to me. I have a friend who is a veterinarian and, in exchange for handling her divorce, she's agreed that if the law isn't struck down, she'll provide me medical care under the guise of treating a fictional German Shepherd named Clarence. So, I will still be able to get medical care even if the law stands, and won't have to die at the hands of bureaucrats like the rest of you.

And professionally, I don't expect it to be a big deal, either. The law is such an unprecedented abuse of Congress' Commerce Clause power that I doubt I'll be able to cite the opinion striking it down as precedent for dismissing any of my clients' indictments under less abusive statutes.

Nevertheless, when the news comes, I'll still be celebrating in the street with the rest of you.

And 16 years from now, when people ask where I was when I heard the law had been struck down, I'm sure I'll be able to remember, just as I'll still remember when I first heard about the decision in Lopez.

And so, from The Dark Side to whatever side you're on, have a happy New Year, personally and professionally, and remember to be thankful for the Commerce Clause. But just in case the law isn't struck down, be sure to be nice to veterinarians.

Published: Thu, Jan 5, 2012

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