08 Feb 2011

Justice Will Prevail, and Obamacare Will Be Struck Down

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Larry Tribe was in great form in yesterday’s New York Times.

Nothing in his hands, nothing up his sleeve, now pay close attention as the law professor takes the interstate commerce clause and the American citizen sitting at home doing nothing at all and a federal mandate compelling Americans to purchase health insurance policies and magically causes the last two to fit within the former.

[P]redictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Mr. Tribe fails to consider that perhaps key New Deal era decisions, like Wickard v. Filburn, which reached beyond actual interstate activity to assert federal authority over private activity which might affect interstate commerce, were unfaithful to the intent of the framers, casuistical, and wrong to begin with.

Mr. Tribe also simply discounts as irrelevant the fact that in recent years, the modern court has become considerably more serious and more respectful of the Constitution. The United States v. Lopez decision in 1995 represented a major change of direction.

Liberal constitutional jurisprudence has an interested double-joined quality. The actual language, meaning, and intent of the Constitution are to be looked upon as inherently factually unknowable, as cryptic apothegms from a distant and fundamentally alien civilization, open to creative interpretation and subject to being overruled by the privileged moral insights of the contemporary elect at will. But the windy and vaporous decisions of the New Deal court, ah! they are sacred and immovable compass points of Constitutionality. As Robert H. Jackson writes, so it must be forever.

Larry Tribe is clearly whistling in the dark, repeating a happy liberal fantasy offered by Sam Stein over at HuffPo last week, that Antonin Scalia will apply the same statism that went into his concurrence with the decision in Gonzales v. Raiches upholding federal criminalization of home-grown marijuana. Personally, I think Messrs. Stein and Tribe are mistaken.

Even if the Necessary and Proper clause can be adduced to support a federal system of interstate regulation in the case of marijuana prohibition, a federal law prohibiting a particular activity like the use of marijuana differs distinctly from a federal law imposing an obligation to perform an affirmative act, from a law making Americans purchase something. Upholding a federal power to forbid does not necessarily imply a belief in a further federal power to compel.

Mr. Tribe, I suspect, apprehends himself that distinction, since he finds it desirable to use his literary powers to transform the passive state of American citizens living their lives prior to the imposition of Obamacare into an active assertion of an innovative right.

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.

It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract.

In reality, Americans have a social contract. It is a written one called the Constitution of the United States. That social contract forbids Obamacare.

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4 Feedbacks on "Justice Will Prevail, and Obamacare Will Be Struck Down"

SDD

Wow. The right to opt out of the “social contract”? And Bill Clinton was ridiculed for creating his own definitions of the word “is”!

Could we please start a campaign to reinstate the proper use of the word “right”?



Harl Delos

The SCOTUS doesn’t build legal structures in one fell swoop. They build brick-by-brick. Consequently, they are incredibly loathe to contradict past decisions that other many cases in lower courts have relied upon. Instead, they work by stepwise refinement.

It is possible that they will determine that HCR is unconstitutional. Given the fact that the court has been working its way right for a couple of decades now, it’s likely that they will be looking hard for a way to do exactly that.

On the other hand, it’s not Professor Tribe’s wishful thinking that leads him to proclaim the matter open-and-shut on those grounds. It’s a lifetime of studying the SCOTUS. If and when they rule the law unconstitutional, they will surely find another basis for doing so. The court does not partake of revolutional upheavals; they are too conservative for that.



Bob Yanal

JDZ: You correctly point out that there is a distinction between “must not do” and “must do,” and that even if the interstate commerce clause support the first (in some cases), it won’t follow it supports the second. Thus the “statism” of Scalia in Gonzalez (a must not do) won’t commit him on pain of inconsistency to a must do.

This seems a rather minor point, since surely there are plenty of instances in which the ICC has mandated a must-do and has been upheld.

The question is whether in THIS case, the presumptions of liberty usually said to be “inherent in the constitution” trump the mandate on individuals to buy health care.

And that is quite a different arena, which involves weighing a presumptive right to liberty against the societal value of a certain system of health care.



Julie Kinnear

I think the judges who said the health care bill is unconstitutional did so because of their political convictions. Otherwise they would understand the importance of the provision which says that nobody can be denied health insurance based on a pre-existing condition which is very important to people diagnosed with serious medical conditions.



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