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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