The Cynicism of Constitutional “Conservatives”

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.


  1. I don’t really understand the point of this case but maybe all the legalese is over my head. Are you saying that no, it won’t be a close decision…

    ” The “Obamacare” litigation is not a close case…”

    …or are you saying that if it is it will only be because the judges misunderstood the case…

    ” …any defeats rest on a misunderstanding of recent Commerce Clause jurisprudence.”

    …or are you just hedging your bets and saying both?

    1. The defeats in the lower courts are a result of misunderstandings, but the Supreme Court Justices won’t make the same errors, thus it’s ultimately not a close case.

      1. So let’s play devil’s advocate here and say that it is in fact a 5-4 vote. What does that mean? Moron justices or bad analysis by our host?

      2. That would depend on the shape of the opinion. If it relied upon the action/inaction distinction, or Lopez and <i,Morrison, the former. If on some other basis that neither I nor Laurence Tribe have thought of, the latter. We won’t really know until we see a 5-4 opinion!

        1. So shouldn’t your declaration that it won’t be a close vote be caveated that it assumes you have all your facts? Shouldn’t we also assume SCOTUS has a better research team or would you say that there are some potential blind spots for NYC lawyers doing armchair quarterbacking?

        2. As I see it, the present health care litigation is pretty much an attempt at a re-enactment of the Lochner era, when the Court used an impossibly narrow reading of the Constitution to deliver a series of opinions against legislation regarding labor rights, workplace security, minimum wages and that sort of thing.

          I frankly don’t think even the more conservative Justices want to roll back a century of jurisprudence and go back to that, because it was not very pretty.

          1. What do you mean impossibly narrow? It was textually faithful, and it was correct, and it only went away because the political branches shamelessly and wrongly tried and succeed in pressuring the court to abandon a correct reading of the Constitution for a politically expedient one.

            1. Hardly. As Holmes pointed out in the dissent to Lochner, those cases were not generally decided on the Constitution itself, but on the idea that it necessarily embodied a certain economic theory – a strict laissez-faire liberalism. There’s no support for that in the Constitution itself, so it was simply judicial activism by the Court majority.

  2. Personally, I’m hoping to see the last 80-100 years of commerce clause jurisprudence trashed.

  3. […] none of this changes this fundamental calculus that this is an easy case, resolved in reformers’ favor by reference to clear precedent. I’ve just bet another […]

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