Larry Tribe's op-ed in yesterday's NY Times makes two core points. First, he lays out the main arguments for why the individual mandate of the Patient Protection and Affordable Care Act should be understood as satisfying the existing Commerce Clause or, alternatively, Taxing power, precedents. There's nothing especially new here but Tribe pulls the arguments together elegantly and succinctly. It probably goes without saying that I agree with him.
Second and more interestingly, Tribe takes issue with those pundits and commentators who have been predicting that a challenge to the law will be close in the Supreme Court. Putting aside Justice Thomas, who has repeatedly stated that he rejects the modern congressional powers doctrine in toto, Tribe concludes by predicting "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." In a similar vein, earlier in the piece, Tribe says: "To imagine Justice Scalia would abandon [his broad] 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."
We might ask whether Tribe is really predicting something like an 8-1 vote to uphold the law or is simply trying to work the refs. By framing the question as constitutional duty versus politics, Tribe plants in the minds of the public and the Court the notion that the only principled way to rule here is to uphold the law. If Tribe is indeed working the refs, I've got nothing against the tactic, but I don't think it's likely to work. There are enough conservative groups out there saying that the mandate is invalid that the conservative justices have a ready-made counter-framing: They'll say it's the liberals who want an unprecedented expansion of federal power, and the conservatives who are trying to hold the line. Besides, at the end of the day, Justice Scalia doesn't really care if liberal law professors think he has acted in an unprincipled way.
Surely Tribe knows that flattering/shaming the conservatives is unlikely to work, if they are inclined to vote to strike down the mandate. Thus, perhaps we should take what he says at face value. For Tribe, the case law is simply too one-sided, and the Virginia and Florida district court rulings so egregiously wrong, that it's impossible to imagine the Supreme Court ultimately affirming them. He writes:
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.Alas, I think this gets matters backwards. One of the things that made Bush v. Gore so shocking was that the conservative majority overrode their ordinary jurisprudential preferences for states' rights and narrow readings of equal protection in order to rule for Bush. Precisely because Bush v. Gore was not a novel issue, it seemed inexplicable as anything other than an instance of partisan political druthers overriding jurisprudential druthers. But on health care, political druthers align with jurisprudential druthers. Conservatives who generally favor reining in federal power would be doing just that in invalidating the mandate.
Tribe must realize all of this, of course, and so he explains how (except for Justice Thomas) even the conservatives on the Rehnquist and Roberts Courts have taken positions that require the upholding of the mandate. Again, I agree as a matter of doctrinal analysis, but for purposes of predicting the outcome in the Supreme Court, the question is not whether the activity/inactivity distinction is sensible or required by the prior cases; the question is whether there is enough wiggle room in the doctrine so that five justices who are inclined to think the mandate should be invalidated will be attracted to the distinction.
Tribe thinks there isn't any wiggle room. That's also what I thought in the fall of 2009, when opponents of the then-pending legislation floated the no-power-to-regulate-inactivity argument in earnest. But I have lately begun to think that their argument is not completely off the wall. To be clear, I haven't been at all persuaded by the arguments of the lawyers challenging the mandate or the academics offering them cover. I continue to think that a doctrine that distinguishes between activity and inactivity is unfaithful to the modern Commerce Clause jurisprudence. Moreover, I also think that the Justice Dep't and Tribe are right that any sensible use of such a distinction would put the decision not to purchase health insurance in any particular year on the activity side of the line. And I think the taxing power basis for sustaining the mandate is very strong under the case law. But I am no longer confident that the case will be a slam dunk in the Supreme Court. In other words, even though my reading of current doctrine makes the inactivity argument completely off the wall, the Supreme Court has the power to move the wall (a metaphor I borrow from a law review article by Jack Balkan some years ago).
Now that two district court judges have bought the argument against the mandate, it has a patina of respectability. Sure, the "activity requirement" is made up, but no more made up than other federalism doctrines favored by conservatives, like the rule against federal "commandeering" of state legislative and executive officials or the attribution of principles of state sovereign immunity to the 10th Amendment, the 11th Amendment, and the structure of the Constitution. And of course, the door swings both ways. To conservatives, doctrines recognizing rights to contraception, abortion, and homosexual sodomy are just made up.
I'll be delighted if Tribe turns out to be right and I turn out to be wrong. But I'm not going to bet against a 5-4 ruling. It's one thing to say that those with whom you fundamentally disagree would be imposing their policy preferences in the name of the Constitution were they to rule in accordance with their views rather than yours. It's quite another thing to think that they therefore won't do just that. Or, to put the point more philosophically, I suppose that I am more of a legal realist than Tribe.