Independence Institute Senior Fellow (and University of Montana constitutional law professor) Rob Natelson suggests not, in this blog post. (Which is cross-posted on the blog of Ind. Inst. President Jon Caldara.)
Natelson puts aside the question of whether it is constitutional under Originalism (for which the answer is “obviously not”), and instead points to four problems under modern constitutional doctrine:
1. It is not based on any enumerated power of Congress, not even on a very expansive reading of the power to regulate interstate commerce.
2. It relies on Excessive Delegation of the type held unconstitutional in Schechter Poultry.
3. It violates Substantive Due Process, and interferes with doctor-patient medical decisions to a vastly greater extent than did the laws declared unconstitutional in Roe v. Wade.
4. It violates the Tenth Amendment by commandeering state governments.
A couple caveats: It’s a blog post, not a law review article, so it just sketches out the above points briefly. It’s obviously written in the spirit of starting a public
dialogue conversation. In the spirit of constructive dialogue, we promise not to say that we “don’t want the folks who created the mess to do a lot of talking.” (By “created the mess,” I mean the people who created the legislation with little apparent consideration for constitutionality, and who appear to have operated from the presumption that Congress can exercise powers which are not enumerated.)
Also, when Rob writes something on a blog, he is not setting out an official Independence Institute position, nor does he purport to do so. (The same goes for what I write on VC.) And while Rob and I agree on many constitutional issues, we do not necessarily agree on all of them; for example, he does not believe that the 14th Amendment, properly interpreted, protects unenumerated rights, whereas I do.
I hope to have the chance to interview Rob on an iVoices.org podcast in the near future, and will certainly study the Comments to look for serious, challenging questions to ask.