Laurence Tribe flags the cynical worldview underpinning the right’s conviction that the health care litigation will be a 5-4 win, or a 5-4 lose:
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. [….]
There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.
And notes the error lurking behind the Hudson & Vinson opinions, striking down the mandate:
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 decisionnot 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.
This is the position we’ve always maintained (and HotAir/Ann Althouse’s points are inadequate to address the Social Security analogy). The “Obamacare” litigation is not a close case; any defeats rest on a misunderstanding of recent Commerce Clause jurisprudence (Morrison and Lopez are simply inapposite); and the action/inaction distinct is “illusory.” Our word choicer, and Professor Tribe’s. nbd.
Note, too, that many federal laws punish inaction. As one example, absent extensive, expensive, regular, and time-consuming disclosures to the Securities & Exchange Commission, the ’33 and ’34 Acts shut the doors of interstate commerce to any “issuer.” Perhaps that’s different, because Congress may condition access to federal benefits on a fairly low standard. But the distinction is almost rhetorical, as Congress could easily devise an interstate commerce-based “stick” to force citizens into paying buying insurance, or acceding to the individual mandate’s exaction. To be sure, Congress’ powers over interstate commerce are a patchwork, and do not constitute a plenary power. But where an asserted congressional power fills a gap between enumerated powers, or powers already found to be constitutional, the Court never fails to find it a “necessary and proper” exercise. This is no different.