Laurence Tribe's Naked Arrogance on Display
Writing yesterday in the New York Times, Laurence Tribe laid out an arrogant, transparently manipulative, and ultimately counter-productive argument for why the Supreme Court will (or should) uphold ObamaCare.
Arrogance.
Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court....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.
That Tribe would attempt to urge the Justices in a strangely political way to put aside politics, as if the Justices would care if Tribe accused them of being political, is nothing short of arrogant. I can safely bet that Justices Roberts, Scalia, Kennedy, Thomas, and Alito could care less if Tribe attacked them for playing politics. Tribe basically thinks the Supreme Court's work is all political anyway, because it does not hew to his vision of constitutional law -- convincing him, if I remember correctly, to stop writing his treatises on constitutional law, which he announced in a public letter (another strange thing to do). The article's tone is not that of an observer; Tribe comes across as a teacher instructing the Justices not to disappoint him. Why the Justices would seek to decide a case so as to fall within the good graces of a single professor of constitutional law is beyond me.
Naively manipulative.
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?
Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible.
Tribe's arguments are so clearly one-sided. His basic argument is that the Commerce Clause clearly and obviously permits Congress to regulate health care, to the point of forcing all citizens to buy health insurance. So if the Republican-appointed Justices (Tribe neglects to discuss any Democratic Justices) vote to overturn Obamacare, it must be the work of politics, not law. Strange, but 50 percent of judges that have heard the case so far disagree that this is the obvious answer. Putting that to one side, Tribe's argument can obviously be flipped around. If Obamacare is such a central part of the Democratic Party's agenda -- indeed, it may well be the defining issue in the 2012 elections, as it was for the 2010 elections -- why isn't any vote by Justices Ginsburg, Breyer, Sotomayor, and Kagan (all Democratic-appointed) to uphold the individual mandate equally political? Aren't they trying to keep the party that appointed them in power? Tribe doesn't address this obvious implication of his argument because he is trying to manipulate the Justices to agree with him (see point on arrogance, above).
Counter-productive.
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.
Tribe's argument is ultimately counter-productive. He is attempting to set up the ObamaCare decision in the courts as political in nature, not legal, despite the fact that plenty of judges and professors have serious doubts about the constitutionality of the law and the fact that the Court has never upheld a law that compelled individuals to undertake any activity, economic or not (except for jury duty and the military draft). He is accusing the district judges who have held ObamaCare as being so obviously wrong on the Constitution of following their personal political desires. He is ignoring the fact that three of the sitting Republican Justices on the Court (Scalia, Kennedy, and Thomas) have already voted in the past to strike down Acts of Congress as beyond the Commerce Clause in Morrison (invalidating portions of the Violence Against Women Act) and Lopez (striking down the Gun Free School Zones Act), and that they could strike down ObamaCare in a move consistent with their long-standing views on federal power. By trying to manipulate the politics of the Court, no matter how transparently and unsuccessfully, Tribe only contributes to an atmosphere that politicizes the Court's decisions, which in this case will only help opponents of the law who have the majority of the American people on their side.
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FREEDMAN > Tribe: Judges Who Uphold Personal Liberty are "Confused"
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Jul '10
Re: Laurence Tribe's Naked Arrogance on Display
I don't pay attention to Laurence Tribe. He's, like, at least 100 years old.
Dec '10
Re: Laurence Tribe's Naked Arrogance on Display
Since Tribe's smearing around the vinegar rather than the honey, he must assume that Obamacare is going down hard and it just trying to lay the groundwork for declaring it illegitimate.
Striking it down would set a precedent that people like Tribe would not want set.
Jun '10
Re: Laurence Tribe's Naked Arrogance on Display
I don't understand the size arguments. With religious freedom, would Tribe say that the size of the religious denomination matters? "Catholics can't do that (or not do that) because there are so many of them that it affects interstate commerce." Is that the next bridge to cross?
Oct '10
Re: Laurence Tribe's Naked Arrogance on Display
Arrogance: 1. I was not aware that there is such a thing as "federal rights". I always thought constitutional rights were individual rights. 2. The "social contract" is not the object of Federalism.
Naively manipulative: since health insurance products have historicly been regulated by and sold within the jurisdiction of the States, they have not hitherto been subject to regulation under the interstate commerce clause. Only if Congress (and the States) decides to allow these products to be sold across State lines would they be subject to Federal regulation.
May '10
Re: Laurence Tribe's Naked Arrogance on Display
I just love it when you post, John, because I feel like I'm getting a free legal education. So, here's a big LIKE for this post!
Re: Laurence Tribe's Naked Arrogance on Display
Yes, the audacity of a man accusing the other side of being political as part of his attempt at influencing the justices toward a politicized decision is breathtaking. Sometimes I can't tell with liberal intellectuals whether they're being completely cynical and manipulative or are so steeped in their own BS that they honestly cannot detach themselves from their desired political ends in legal (or other) analysis.
Edited on Feb 9, 2011 at 6:33amJan '11
Re: Laurence Tribe's Naked Arrogance on Display
Tribe is to law what Krugman is to economics.
Don't argue or debate him; simply laugh and ask, "You don't really believe that, do you?"
Oct '10
Re: Laurence Tribe's Naked Arrogance on Display
"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."
The bottom line: We have the guns, and you subjects have no choice but to fall in line. Forget all that Bill of Rights claptrap. It's for another age. We now own all the islands, and you are merely one of them.
Sep '10
Re: Laurence Tribe's Naked Arrogance on Display
Tribe is to law what Krugman is to economics.
Tribe is to law what Kim Kardasian is to thespians.
Sep '10
Re: Laurence Tribe's Naked Arrogance on Display
Since when did Jean Jacques Rousseau become a US Founding Father?
Dec '10
Re: Laurence Tribe's Naked Arrogance on Display
It looks to me like Tribe sees our "social contract" as coming from the Hobbesian model rather than the Lockean. That guy needs to read the declaration and consider whether leviathan was what the founding fathers described there or not.
Jan '11
Re: Laurence Tribe's Naked Arrogance on Display
What does it mean when an economic decision has a significant effect on interstate markets? One person's decision is not going to matter one bit to interstate markets, even if you accept the premise that it has any effect at all. It's only when you consider a large number of people's decisions to do something that would have "significant effects on interstate markets." Given that the Constitution deals only in individual matters, and not collective matters, does this shed any light on how the Commerce Clause should be interpreted?
Jan '11
Re: Laurence Tribe's Naked Arrogance on Display
The King Prawn
It looks to me like Tribe sees our "social contract" as coming from the Hobbesian model rather than the Lockean. That guy needs to read the declaration and consider whether leviathan was what the founding fathers described there or not. · Feb 8 at 8:41pm
Maybe he was watching a Lost marathon and got confused.
Aug '10
Re: Laurence Tribe's Naked Arrogance on Display
Maybe the social contract emanates from a penumbra somewhere in Article 1. I can't tell, my copy of the Constitution only has black and white text; do they hand out the trippy version with law school diplomas?
Jan '11
Re: Laurence Tribe's Naked Arrogance on Display
I love the rhetorical sloppiness of Tribe's argument. Remember in Animal House, when Otter started with a few charges and managed to broaden them into insults against ... the United States of America! In logic, when you broaden the premise to the point of explosion, you can justify anything. I find the same sloppiness in Tribe's constant "broadened" premises. Take this, for example:
(And then, one sentence later...)
The logic is nothing more than: We're OK with Congress passing laws; This is a law; Therefore it's OK. Well, sure, if you abandon all those "distinction" thingys.
There's more broadening where that came from:
You like Social Security, don't you??? Well then ...
Re: Laurence Tribe's Naked Arrogance on Display
Tribe's lost it. He'll make up anything. I don't think he believes it, but he thinks the ends justify the means. They certainly can't let the hillbillies rule themselves.
May '10
Re: Laurence Tribe's Naked Arrogance on Display
BlueAnt
Maybe the social contract emanates from a penumbra somewhere in Article 1. I can't tell, my copy of the Constitution only has black and white text; do they hand out the trippy version with law school diplomas? · Feb 8 at 9:36pm
Great line. Hugo Black's body must be hitting the redline about now.
Jun '10
Re: Laurence Tribe's Naked Arrogance on Display
The real arrogance is the Obama administration's choice to simply ignore rulings from the bench. We have now two such cases. Where goes the ball next? Do judges Vinson and Feldman rule the administration in contempt? If so, what does it mean? Or will it take a full constitutional crisis before we see a resolution?
Aug '10
Re: Laurence Tribe's Naked Arrogance on Display
~Paules is exactly right about the arrogance of the administration. Hold the govt's lawyers in contempt and put them in custody of the US Marshall.
As far as Tribe is concerned, if almost every con law professor in the US had been uncritically using my presuppositions concerning the interpretation of the constitution for the past thirty years or so, I'd be on a mighty high horse too.
It is amazing how only in the areas of law and theology do people get away with the idea that words don't mean what they mean. I sure would hate to be on an operating table going under the anesthesia and hear the surgeon proclaim, "Well the classic text on this procedure says I should do X but in reading deeper I discerned that the author was really saying I should do Y."
The constitution was written so that men and women of average literacy and intelligence (by 18th century standards) could easily understand the role of the Federal government. Clearly, those standards have fallen greatly.
May '10
Re: Laurence Tribe's Naked Arrogance on Display
Q: "What are the legal arguments the Supreme Court might rely on uphold Obamacare?"
Tribe: "Of course they will uphold Obamacare!"
Q.E.D.