Free Markets, Free People


Setting up a narrative–if ObamaCare goes down it will be “judicial activism”

It must be getting uncomfortable legally for supporters of ObamaCare.   They’re calling out the big guns.  Today, we hear from Lawrence Tribe who attempts the usual arguments, but then spends a lot of time praising the justices of the Supreme Court (well, except Thomas, of course).  There’s a reason for that as we’ll see.

Tribe first attempts to argue that the commerce clause is indeed applicable:

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?

Of course that’s not the argument.  Few would argue, given precedent, that Congress does indeed have the power to regulate the insurance industry.  They may find it to be a stretch and most likely not how the Founders envisioned the regulatory powers of Congress being used, but few can deny that’s the legal state of affairs today.  But:

Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

Note the emphasis – “the system” won’t work unless “all individuals”  participate “to the extent of their economic ability”.   So it’s not about the sick, it’s about system viability.  A “system” which doesn’t yet exist takes precedence, because supporters want it, over the individual right to say “uh, no thanks”.

It also ignores those who presently pay their way.   Yes, folks, there are some out there.  And no, Tribe isn’t about to let them off the hook because they’re on the end of the economic spectrum where they’ll be paying full price for insurance and then some.

Back to the point – his argument is for the “system.”  The “system”, imposed by Congress, must abrogate the individual’s right to make an economic choice based on his or her desires, needs or priorities because the system’s very existence depends on universal participation.  That’s the tail wagging the dog. Our Constitutional system exists to protect individual rights and choices – not take them away.  And this mandate is an abrogation of the “right to choose” (which the left only seems to want you to have when it comes to abortion) what economic activity an individual will participate in is dead.

In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.

In 1982, Social Security had been around for decades.  ObamaCare hasn’t taken the first payment by mandate.   And the fact that Social Security had existed for decades and millions had been forced to pay into it (but had yet to recoup their payments) may have influenced the Court to find keeping Social Security.  That’s not the case for ObamaCare.  Tribe’s is an empty argument.  There’s another difference.  Personally, I think that Social Security is as unconstitutional as the ObamaCare mandate – but it is a fee taken in the form of taxation (even if it does end up being a mandated program).  And that brings us to the core of the matter concerning ObamaCare:

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.

It possibly could – but then the law would most likely have to be rewritten to reflect that, and there’s a slim to none chance of that happening with a Republican House.  In fact, this is the path the last Congress should have taken vs. an individual mandate.  I don’t care how hard lawyers like Tribe argue that it is Constitutional, it doesn’t pass the Constitutional smell test.   Congress is given the power to regulate the activity of interstate business actors.  Opting not to buy something does not make you a part of that, no matter how badly supporters want that to be true.   A decision not to buy is an individual choice that government has no business – and until this point – no right or power to compel one to change.

The danger here, of course, is given the precedent of Medicare and Social Security, I fear a tax would pass Constitutional muster, given the expansion of powers SCOTUS has granted Congress since FDR.

Tribe outlines his arguments as if they’re open and shut.  They’re not – in fact, to a layman they appear pretty darn weak (well other than the tax, which hasn’t a chance, at least at the moment, of passing).  The indication that they weak comes from the rest of the article where he appeals to the integrity and consistency of the justices and his appeal to do the right thing and find this all Constitutional.  Tribe’s entire argument, and that of supporters, is individuals, at some point in their lives, must use the health care system.  Therefore, they must make a “commercial decision” about how to pay for it.   It is that decision that Tribe says constitutes the basis for Congress to assume the power to dictate how they’ll pay.  It is nonsense on a stick (and it doesn’t take a very bright person to see the future implications of such a finding).

In fact, Allahpundit of Hot Air sees this op/ed for what it really is.  It certainly isn’t about the pedestrian legal arguments, as they’re the same ones many on the left have been making since ObamaCare was challenged and found unconstitutional.  It is in fact an op/ed to set up a narrative if the court should not find in favor of the ObamaCare law.   Tribe spends the entire 2nd half of his op/ed praising the justices and calling on them to do their constitutional duty and dispel the rumor that they’re “political” animals.  This, says Allahpundit, is why Tribe wrote the piece:

His goal here isn’t to persuade Times readers that he’s correct on the legal merits; his goal is to persuade Times readers that if the Supreme Court disagrees with him, it is, must, and can only be because they’re right-wing hacks with no regard for the Constitution or for precedent. It’s transparent narrative-building for liberal bien-peasants, a way of moving the Overton window so that any unfavorable ruling, notwithstanding the legal novelty of the mandate or the reasoning of the majority opinion, must be illegitimate. Which is to say, it’s a nakedly political argument dressed up as a plea to keep politics out of law.

Exactly … pretty transparent for a Harvard Law professor whose hubris is such that he sees himself smarter than just about anyone else.  Here he comes across as a political hack and water carrier for the administration.  It also tells me that the administration, even with their public pronouncements of faith that the challenges will fail, think they’re in trouble.