Obama’s law professor: If the Supreme Court strikes down the mandate, they must be biased political hacks

posted at 10:12 pm on February 8, 2011 by Allahpundit

One of the most pitiful, relentlessly irritating op-eds about O-Care that I’ve read since our long national nightmare began in summer ’09. To understand what makes it so grating, you need to know that the author, Laurence Tribe, is not only a Harvard Law prof who taught Obama but a bona fide titan of constitutional jurisprudence on the left. He wrote a famous treatise on the subject and was, in his younger days, a perennial candidate for the Supreme Court when Democrats were in the White House. You might also remember him as the guy who sneered, amusingly, in a letter to Obama that Sotomayor isn’t nearly as smart as she thinks she is, and who endorsed Kagan because he thought she’d be better able to keep Anthony Kennedy from “drifting” towards the right.

You need all of that as background for two reasons. One: If, per his credentials, you’re expecting an argument for the mandate here that’s novel or unusually penetrating, you’re mistaken. His points about the Commerce Clause and Congress’s taxing power are as pedestrian as it gets, stuff you’ve read in a hundred different permutations from liberals over the past 18 months. Two, and more importantly: The point of this op-ed isn’t to make legal arguments at all. Ann Althouse has been destroying Tribe all day long, in three separate posts, on the nuts and bolts of his argument, but taking him seriously enough to respond to him might actually give him too much credit, I think. 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-pensants, 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.

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 decision not 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…

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. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental 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

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.

I can tolerate him spoon-feeding talking points to the left about the Court’s supposed illegitimacy, but please, in the name of decency, spare us the condescending, backhanded, surely-they’re-better-than-that tone. John Yoo, who accuses Tribe of coming across “as a teacher instructing the Justices not to disappoint him,” wonders why it shouldn’t also be the case on a matter of first impression like the mandate that Breyer, Ginsburg, Sotomayor, Kagan are left-wing Democratic hacks if they vote to uphold the law — which, let’s face it, they surely will. The votes of Republican appointees like Kennedy, Roberts, Alito, and even Scalia are in doubt here, but there’s no doubt which way our four liberal all-stars will tilt, never mind what further expansion of the Commerce Clause might mean for a government of allegedly limited powers. Exit quotation from one of InstaGlenn’s law-prof correspondents: “[I]t seems to me that the arguments against constitutionality are making supporters sufficiently nervous that they’re doing some battlefield preparation…”


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you implied it by knowing too much more than the Beaver.

knowledge is arrogance.

audiculous on February 9, 2011 at 5:39 PM

WTF?

Knowledge … get some.

By the way, looks like crr6 has a fan, a creepy fan, but a fan nonetheless.

darwin on February 9, 2011 at 5:58 PM

WTF?

Knowledge … get some.

By the way, looks like crr6 has a fan, a creepy fan, but a fan nonetheless.

darwin on February 9, 2011 at 5:58 PM

Nah, it’s just that the trolls have to stick together.

Since Narutoboy and TRC got the hammer, I think they’re down to the single digits now.

Can we trade audiculous to bring NB back? He was a lot more fun.

Good Solid B-Plus on February 9, 2011 at 6:02 PM

Can we trade audiculous to bring NB back? He was a lot more fun.

Good Solid B-Plus on February 9, 2011 at 6:02 PM

Tempting …

darwin on February 9, 2011 at 6:05 PM

Tempting …

darwin on February 9, 2011 at 6:05 PM

Man, you never know who you’ll miss…*sniff*…until it’s too late..

Don’t know what’cha got….’til it’s gone….

Good Solid B-Plus on February 9, 2011 at 6:10 PM

Maybe that’s because you go into every discussion here with the attitude that you’re talking down to a bunch of sub-humans who can’t possibly contribute to sophisticated political discourse?

I think there’s some truth to that, but overall it’s not a fair characterization of how I post here. If someone says something smart, or if someone asks a question in good faith I’ll respond in kind. I think PR is generally the same way.

But unfortunately, a great deal (I’d even venture to say a majority) of the posters here don’t have any interest in doing either of those things. If that’s the case, why on earth would I treat them like adults?

The site has been a bit lacking lately, but I think there were a lot of very interesting conversations about the future of the Republican party during primary season. Some of it boiled down into O-Donnell/Angle pro-con food fights, but there was a lot of insightful debate about the importance of consolidating the SoCon base, how to broaden the ‘big tent’ without diluting the brand, the merits of ideological rigidity versus pragmatic political reality, etc.

I read a handful of those threads (the O’Donnell ones) and I didn’t see much debate.

The better question is, if you find politically-oriented discussion so boring and empty….why do you spend so much time on a conservative political blog?

I don’t post in most of the political topics, because of the reasons I stated above. I think it’s boring to argue with someone who has irreconcilable views on the issues, about things which no one on this blog has any level of expertise about, and which don’t have an objective answer (which way will SCOTUS vote, who’s the best candidate for the GOP, should Obama move towards the center more, etc etc)

If you participated more in some of those dreaded topics where you don’t ooze expertise, maybe you’d no longer mischaracterize HA as a primative echo-chamber.

I’d probably just get in endless food fights and contribute little to nothing to the discussion. “Actually, in my personal opinion, Obama is doing a decent job! So there!”

I will say that lately, most topics seem to break along very predictable fault lines. Every “SoCon vs. Big Tent” post tends to degenerate into a shouting match about the “gay agenda,” and every topic that is even tangentially related to Palin becomes 500 posts from the usual “Palin is the messiah” or “Palin is unelectable garbage” batallions.

Good Solid B-Plus on February 9, 2011 at 5:46 PM

Yeah, that seems to be the general trend. Note that what I said above doesn’t mean I think the debates at HA suck in particular, I just think political science as an academic field, and most political debate (done “for fun”) is stupid.

I took a few poli-sci classes in undergrad and hated it. Like I said, there’s never anything resembling an objective answer to anything people ask. It’s really all an extended exercise in begging the question. “Should Dems do this, can Repubs get away with this what are the ramifications of this…” why do we care about any of those things? Political science is often focused on how parties can increase their effectiveness and/or electability, but it rarely if ever asks or answers the question at the heart of the issue, which is why would one party be better than the other? And what does “better” mean? And if you can’t answer that, why are you attempting to answer all the other questions?

That’s why econ and especially law are better disciplines to study, and why they’re also more fun to “debate.” They actually ask and answer questions. You can still have endless debates about normative questions, but if someone disagrees with me about something legal, I can cite a case or Constitutional provision and well…get somewhere.

crr6 on February 9, 2011 at 6:15 PM

Since Narutoboy and TRC got the hammer, I think they’re down to the single digits now.

Can we trade audiculous to bring NB back? He was a lot more fun.

Good Solid B-Plus on February 9, 2011 at 6:02 PM

NB was probably the most annoying troll I’ve seen in my 3+ years posting here.

crr6 on February 9, 2011 at 6:19 PM

I read a handful of those threads (the O’Donnell ones) and I didn’t see much debate.

crr6 on February 9, 2011 at 6:15 PM

Which ones were you reading? Those were probably the most contentious non-Palin/gay marriage threads I’ve ever seen on HA.

Good Solid B-Plus on February 9, 2011 at 6:27 PM

Which ones were you reading? Those were probably the most contentious non-Palin/gay marriage threads I’ve ever seen on HA.

Good Solid B-Plus on February 9, 2011 at 6:27 PM

Well there was debate in the sense that people were screaming at each other. But I don’t think that’s really “debate.”

crr6 on February 9, 2011 at 6:55 PM

Well there was debate in the sense that people were screaming at each other. But I don’t think that’s really “debate.”

crr6 on February 9, 2011 at 6:55 PM

There was also a lot of debate about ideological purity, how far left the party as a whole should be willing to let individual Congressmen lean, and so forth. Castle v. O’Donnell was simply the most visible manifestation of that internal party struggle, mostly because she was such a lightning rod for controversy and ridicule.

Good Solid B-Plus on February 9, 2011 at 6:59 PM

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

Mr. Tribe,

Assuming your position to be the correct one, perhaps you will be so kind as to explain why HHS has issued over 700 waivers against the mandate. Apparently, HHS feels the money from these persons isn’t so needed after all and the law can manage without their participation. I’m curious about the practical limits of this notion. Why not let the entire nation enjoy exemptions by state or even individual, free-born citizen (assuming such a thing even exists)?

Moreover, your premise clearly rests on the idea that people who do not pay into the system may require services for which they have not contributed. Yet, once the employer is exempted the employee may further self-emempt by not purchasing insurance through their employer. However, they may still become sick or injured off-the-job. With the law geared towards compelling treatment the employee of an exempted entity has no incentive to spends hundreds of their own dollars every month. We may very well see private insurance bankrupt but non-participating employees of exempted entities who are still being treated with public coin.

Furthermore, the “general welfare” clause is invariably invoked in these conversations but it can hardly be called general welfare with so many specific exemptions being issued.

Mr Snuggle Bunny on February 9, 2011 at 7:37 PM

That’s why econ and especially law are better disciplines to study…They actually ask and answer questions

not always…

someone once said, to my great teenaged annoyance…

The life of the law has not been logic; it has been experience.

audiculous on February 9, 2011 at 7:49 PM

Can we trade audiculous to bring NB back? He was a lot more fun.

Good Solid B-Plus

shoulda taken care of him while you had him.

audiculous on February 9, 2011 at 7:51 PM

I have actually always found it fascinating that curr6 thinks he/she is some kind of mental genius.

Badger40 on February 9, 2011 at 2:42 PM

Where have I said that?
crr6 on February 9, 2011

Since I don’t save your posts, nor do I wish to troll for them in Googlespace, I will leave it to my fallow Hot Airians to back me up with that assertion.
There have been times in the past that you have crowed about how smart you were where you are going to school & how people are after you for employment, bcs you are so brilliant. It isn’t anything I made up & if you don’t remember all of the incidences about yourself at all, you are clearly not as smart as you have said you are.

you implied it by knowing too much more than the Beaver.
knowledge is arrogance.

audiculous on February 9, 2011 at 5:39 PM

How often has crr6 exhibited correct knowledge regarding the Constitution?
The legal speak is nothing but BS.
The Const is written plain & simple for all to understand.
It is people like crr66 that attempt to muddle its meaning all in the name of social justice.

Badger40 on February 9, 2011 at 8:16 PM

to my great teenaged annoyance…

audiculous on February 9, 2011 at 7:49 PM

So are we to assume you are a teenager?
Bcs that would also explain a lot of things about you.

Badger40 on February 9, 2011 at 8:17 PM

So are we to assume you are a teenager?
Bcs that would also explain a lot of things about you.

Badger40

you may assume it if it pleases you, but it may be closer to the truth that I was a teen when the guy first made that remark….

or maybe just that I was but a tender lad when first I read it.

audiculous on February 9, 2011 at 8:21 PM

The Const is written plain & simple for all to understand.

Badger40 on February 9, 2011 at 8:16 PM

Except that Hamilton and Madison disagreed on the proper interpretation of the Constitution. If the two principal authors of the Constitution disagree on what the Constitution means, where do you get off calling it “plain & simple”?

Proud Rino on February 9, 2011 at 8:22 PM

Except that Hamilton and Madison disagreed on the proper interpretation of the Constitution. If the two principal authors of the Constitution disagree on what the Constitution means, where do you get off calling it “plain & simple”?

Proud Rino

Beaver40 must be one of those self-professed geniuses.

audiculous on February 9, 2011 at 8:33 PM

Except that Hamilton and Madison disagreed on the proper interpretation of the Constitution. If the two principal authors of the Constitution disagree on what the Constitution means, where do you get off calling it “plain & simple”?

Proud Rino on February 9, 2011 at 8:22 PM

Hamilton made it plain how he thought things should be. And it was not in favor of a lot of things that ended up being, in the end.
I will take a Madison/Jeffersonian America ANY DAY over a Hamiltonian one. Hamilton wanted a monarchy. Do you know anything about the man at all? Madison & Jefferson were the main authors, Madison being the principle author.
And it is plain & simple.
Which is why you are a RINO. You see things that are not there. You prefer to usurp freedoms for safety, when none of that power is given to the fed at all in the Const.

Beaver40 must be one of those self-professed geniuses.

audiculous on February 9, 2011 at 8:33 PM

I have never professed to be a genius.
But you do not have to be one to understand the Const.
Those that would obfuscate it are enemies of the Republic.
Ahliketolickass, you are the perfect example of such an enemy.

Badger40 on February 9, 2011 at 8:45 PM

Hamilton, BTW, did not feel the need to add the Bill of Rights.
Though I somewhat agree with this, others understood the need for it bcs of stupid people with evil ambitions who would attempt to thwart the meaning of the Const.
That’s also why the 10th Amdmt. was added, bcs there were morons then, just like now, who believe the federal govt could be given any power over the states by twisting the Const’s meaning.

Badger40 on February 9, 2011 at 8:58 PM

Hamilton made it plain how he thought things should be. And it was not in favor of a lot of things that ended up being, in the end.

I think, in the end, Hamilton’s vision of a strong executive with a more powerful federal government.

I will take a Madison/Jeffersonian America ANY DAY over a Hamiltonian one.

It’s worth noting that Jefferson was a Hamiltonian once in office. That says something about the practicability of the respective philosophies.

Hamilton wanted a monarchy. Do you know anything about the man at all?

Hamilton did not want a monarchy. I know quite a bit about Alexander Hamilton.

Madison & Jefferson were the main authors, Madison being the principle author.

I’m actually embarrassed for you now. Jefferson had very little to do with the Constitution. He was shipped off to France to hobnob on the Champs-Elysee while the adults were busy founding the country. He did talk about how we need to water the tree of liberty with the blood of patriots and tyrants while he was hanging out with the French, having never fought in a war and abandoning Richmond when it was attacked during the Revolution. Jefferson didn’t sign the Constitution. Jefferson didn’t write the Constitution. Jefferson was not in the United States at the time of the Constitutional Convention.

Hamilton and Madison wrote the majority of the Federalist Papers and it was their ideas that were the basis for our nation. And even they couldn’t agree on some very important issues.

Proud Rino on February 9, 2011 at 8:59 PM

Ahliketolickass,
Badger40

not good. you can come up with better than that.

but this other crap you’re spewing about how the Constitution admits of but a single interpretation and any divergence from the view of it that you possess can only be held by enemies of the Republic

is just paranoid ashhole drivel.

what kind of a moron does it take to ignore that in the history of the nation Supreme Court decisions are not only necessary and routine but also hardly ever unanimous.

really stupid and crazy talk, Beaver.

audiculous on February 9, 2011 at 9:01 PM

I think, in the end, Hamilton’s vision of a strong executive with a more powerful federal government.

Finish your thoughts, idiot.

I think, in the end, Hamilton’s vision of a strong executive with a more powerful federal government won out over the Jeffersonian vision of the United States.

Proud Rino on February 9, 2011 at 9:22 PM

I think, in the end, Hamilton’s vision of a strong executive with a more powerful federal government won out over the Jeffersonian vision of the United States.

Proud Rino

that might have had something to do with the nation no longer being mostly isolated and composed of small farms and more land than people could work.

audiculous on February 9, 2011 at 9:28 PM

shoulda taken care of him while you had him.

audiculous on February 9, 2011 at 7:51 PM

Oh, we did, but he was a lot more feisty. You’re fairly boring for a troll.

Maybe it’s the age thing? NB had all the fire and piss and vinegar and duende of an angry, confused youth.

Good Solid B-Plus on February 9, 2011 at 9:34 PM

Maybe it’s the age thing? NB had all the fire and piss and vinegar and duende of an angry, confused youth.

Good Solid B-Plus

that could be it. I’m all cynical and world weary and soon to die.

I’m starting to think of you folks as merely confused and silly and scared rather than dangerously paranoid and ignorant.

worse, sometimes I find myself agreeing with stuff.

I’ll have to muster some last flinders and rinds and stubs of old fiery brands and tilt more vigorously at the windmills of the minds of you Airheads.

audiculous on February 9, 2011 at 9:41 PM

“Tribe’s constitutional theory is protean, and takes on whatever form is necessary to achieve a given result.”
–Robert Bork

morganfrost on February 9, 2011 at 9:42 PM

“Tribe’s constitutional theory is protean, and takes on whatever form is necessary to achieve a given result.”
–Robert Bork

morganfrost on February 9, 2011 at 9:42 PM

“Robert Bork is f*cking crazy”
-America

crr6 on February 9, 2011 at 9:53 PM

“Robert Bork is f*cking crazy”
-America

crr6 on February 9, 2011 at 9:53 PM

Hmm, don’t remember that song. Was that the B-side on “Sister Golden Hair”?

Seriously, though, Bork’s nomination led to one of the great moments in American political civility thanks to the late Teddy Kennedy. You know, all that “Robert Bork’s America has blacks at segregated lunch counters” stuff.

Good Solid B-Plus on February 9, 2011 at 9:58 PM

I’ll have to muster some last flinders and rinds and stubs of old fiery brands and tilt more vigorously at the windmills of the minds of you Airheads.

audiculous on February 9, 2011 at 9:41 PM

You can never be sure those are windmills, audi. After all, they might be giants.

Good Solid B-Plus on February 9, 2011 at 10:01 PM

You can never be sure those are windmills, audi. After all, they might be giants.

Good Solid B-Plus

that might have been better than a B+.

score one for you.

audiculous on February 9, 2011 at 10:03 PM

The thing that’s funny about Bork is that if Tea Partiers were aware of Bork’s feelings about the Ninth Amendment being an “inkblot”, I don’t think they’d like him one little bit.

But the Antitrust Paradox might be one of my favorite books ever written. Just brilliant. He’s a brilliant man, with a weird little chin beard. But whatever, he’s not substantially more right wing than Roberts or Alito. I wouldn’t have voted to confirm him but I wouldn’t have voted to confirm Kennedy either.

Proud Rino on February 9, 2011 at 10:07 PM

Seriously, though, Bork’s nomination led to one of the great moments in American political civility thanks to the late Teddy Kennedy. You know, all that “Robert Bork’s America has blacks at segregated lunch counters” stuff.

Good Solid B-Plus on February 9, 2011 at 9:58 PM

I agree that that speech was mostly disgraceful. However, Bork firing Archibald Cox during the Sat Night Massacre should have prevented him from ever being called “Justice” anything.

Proud Rino on February 9, 2011 at 10:14 PM

I wouldn’t have voted to confirm him but I wouldn’t have voted to confirm Kennedy either.

Proud Rino on February 9, 2011 at 10:07 PM

So I’m guessing you also would have voted no on Ginsburg had he not been withdrawn from consideration?

Wait, seriously, you wouldn’t have voted to confirm Kennedy? I don’t think he had a single vote against him.

Good Solid B-Plus on February 9, 2011 at 10:15 PM

The thing that’s funny about Bork is that if Tea Partiers were aware of Bork’s feelings about the Ninth Amendment being an “inkblot”, I don’t think they’d like him one little bit.

Proud Rino on February 9, 2011 at 10:07 PM

Or his feelings on the 2nd amendment.

crr6 on February 9, 2011 at 10:17 PM

So I’m guessing you also would have voted no on Ginsburg had he not been withdrawn from consideration?

Probably would have voted for Ginsburg, actually.

Wait, seriously, you wouldn’t have voted to confirm Kennedy? I don’t think he had a single vote against him.

Good Solid B-Plus on February 9, 2011 at 10:15 PM

Yes but I have the benefit of hindsight, and I’ve read enough of his not-very-well-reasoned opinions to know that we could have done better.

Proud Rino on February 9, 2011 at 10:18 PM

I wonder if Ginsburg would have made it through Congress if not for the pot smoking.

Good Solid B-Plus on February 9, 2011 at 10:27 PM

I wonder if Ginsburg would have made it through Congress if not for the pot smoking.

Good Solid B-Plus on February 9, 2011 at 10:27 PM

Probably Congress wanted to spare the country from him constantly writing concurrences about how awesome Doritos and Phish are.

Proud Rino on February 9, 2011 at 10:34 PM

Tribe is a juvenile ass-clown.

Jaibones on February 9, 2011 at 10:44 PM

However, Bork firing Archibald Cox during the Sat Night Massacre should have prevented him from ever being called “Justice” anything.

Proud Rino

a toast to Elliot Richardson

and a link….for the kids.

http://www.dcbar.org/for_lawyers/resources/legends_in_the_law/richardson.cfm

audiculous on February 9, 2011 at 11:22 PM

what kind of a moron does it take to ignore that in the history of the nation Supreme Court decisions are not only necessary and routine but also hardly ever unanimous.

really stupid and crazy talk, Beaver.

audiculous on February 9, 2011 at 9:01 PM

I must admit that if anyone is able to judge stupid, you would be the first one most here at HA would pick for that job.
Notice how your hysterical mantra rises in pitch & vitriol when you have nothing else to say.
I had no reason to come up with a nasty nickname before you started being a jerk. And this started before this thread, of course.
Perhaps you think calling me ‘Beaver” has some sort of insulting effect upon me.
Well I have beaver that live by my house on the river & they are quite cool creatures.
Unfortunately sometimes I have to shoot some bcs they start killing all of the trees, of which there are not many here in ND.
Or perhaps you try to insult me by calling me ‘Beaver’ bcs you like the connotation it hold regarding female reproductive anatomy, to which all I can say is that I do have one & my husband does like it quite well.
So that really isn’t an insult, either.
To be honest, I would rather be called a vag!na inconspicuously rather than someone who likes to Lick A$$.
But perhaps you don’t mind being referred to as one who licks a$$.
All in all, my opinion regarding the Constititution’s simplicity stands & referring to the boldened portion of your comment above, SCOTUS decisions are not the unanimous authority on what is, or is not Const.
Every state has a right to decide those issues for itself & tell the Feds to take a hike.
It’s too bad they haven’t done it more often.

Badger40 on February 10, 2011 at 12:00 PM

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