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.
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.
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).
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.