If We Pretend There Is No Issue, Maybe It Will Go Away

Last week I noted Larry Tribe's attempt to influence the Supreme Court's position on ObamaCare's individual health insurance mandate by asserting that the outcome is not in doubt. The mandate is obviously constitutional, the Harvard law professor declared in The New York Times, and the justices have way too much integrity to conclude otherwise. Now Katrina vanden Heuvel, editor of The Nation, is playing bad cop to Tribe's good cop:

What's at stake is not just the law itself or the fate of the tens of millions who wait for its benefits, but the very legitimacy of the court….If the court's conservatives choose to overturn the legislation on clearly political grounds, it would call into question the legitimacy of the court. It would show, once and for all, that certain justices are governed by ideology rather than precedent.

Unlike Tribe, Vanden Heuvel does not claim to be confident that the justices will rise above their policy preferences and crass political considerations to render a judgment based on the law. But like him, she is certain that there is no legitimate disagreement about what the law requires in this case. After all, "Jurists across the political spectrum, including Charles Fried, President Reagan's solicitor general, have argued that the mandate is unquestionably constitutional."

It is also true that jurists across the political spectrum, including George Washington University's Jonathan Turley and the University of Wisconsin's Ann Althouse, have expressed doubts about the constitutionality of the mandate. So have Henry Hudson and Roger Vinson, two of the four federal judges who have ruled on the issue so far. Vanden Heuvel claims "both decisions have an unmistakably political tone," by which she seems to mean that both engage the question of what the Commerce Clause authorizes in light of its goals and history.

I think that approach indicates that Congress cannot claim to be regulating interstate commerce when it forces people to buy medical coverage. But even if we stick with the Commerce Clause as the Supreme Court has interpreted it since the New Deal, it is by no means clear that it authorizes this imposition. As Hudson and Vinson noted, Congress has never pushed the Commerce Clause quite this far before. The Congressional Research Service and the Congressional Budget Office, not usually perceived as hotbeds of right-wing ideology, both have said the mandate raises a "novel" and "unprecedented" issue. The New Republic's Jonathan Cohn, an ObamaCare supporter who fears the implications of a ruling against the mandate, nevertheless concedes there are "good constitutional arguments" against it.

Vanden Heuvel wants to pretend otherwise. She simply assumes that anyone who disagrees with her about the proper disposition of this case is arguing in bad faith, which relieves her of the need to offer any arguments of her own. Not even Tribe, who concedes that Clarence Thomas has laid out a principled basis for overturning the health insurance requirement, goes that far.

More on the constitutionality of the insurance mandate here.