Gerry Canavan

the smartest kid on earth

A Political Objection in Legal Garb

with one comment

Laurence Tribe takes “Is Health Care Reform Constitutional?” for a ride.

But the predictions 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?

With respect to the mandate, he takes on the sophistry that asserts a constitutionally relevant difference between “activity” and “inactivity” as well:

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.

He seems to go so far as to predict an 8-1 decision in favor of the ACA, with only Thomas as the lone dissenter:

To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity. […] 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. 

I think Scalia’s intellect and integrity are highly overrated, and think Roberts and Alito will almost certainly vote on politics rather than principle—so I’m still predicting a 4-5 verdict in favor of the ACA, Justice Kennedy for the save. Prove me wrong, kids! Prove me wrong.

One Response

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  1. […] * Paul Campos tries to read Laurence Tribe’s mind. […]


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