Larry Tribe: The Health Insurance Mandate Is So Clearly Constitutional That I Don't Even Know Why I'm Bothering to Write This Op-Ed Piece


In a New York Times op-ed piece published yesterday, Harvard law professor Laurence Tribe explains why there is no suspense about where the Supreme Court will come down on the constitutionality of ObamaCare's individual health insurance mandate. "Only a crude prediction that justices will vote based on politics rather than principle," he says, "would lead anybody to imagine" that the outcome is at all uncertain. The law on this question is so clear, Tribe claims, that only a bunch of partisan hacks could conclude that the insurance requirement exceeds Congress's power to "regulate commerce…among the several states," and even the more conservative justices have too much "intellect" and "integrity" to do that.  (Tribe does make an exception for Clarence Thomas, not because he has less integrity than the others but because "he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress's commerce power broadly.") Ann Althouse analyzes Tribe's rhetorical strategy:

It reminds me of an old-fashioned mother exerting moral pressure on a child by telling him how sure she is that he is such a good little boy that he could never do whatever it is she doesn't want him to do. Put more directly, it's an assertion of authority: I'm telling you what's right and if you don't do it, you'll be wrong. Could the Justices possibly yield to pressure like that? It's crude to think that they would, isn't it? It's an insult both their intellect and their integrity.

And yet, Larry Tribe does think it, right? That's what's behind his rhetoric. I believe. Crudely.

As Althouse notes, Tribe conflates economic "activities," which have always been involved in cases where the Supreme Court has upheld laws on Commerce Clause grounds, with "commercial choices," thereby eliding the distinction at the heart of the two rulings against the insurance mandate. The Supreme Court may well decide that the activity/inactivity distinction is not crucial, but that is not by any means a foregone conclusion. Tribe is also tricky in defining the choice made by someone who does not buy the medical coverage Congress thinks he should have:

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.

As I've pointed out before, this "free ride" is mandated by federal law, which requires hospitals to treat patients without regard to their ability (or willingness) to pay. The government therefore is arguing (as it often does) that further intervention is needed to address the consequences of a previous intervention. In his ruling against ObamaCare last week, U.S. District Judge Roger Vinson noted that the insurance mandate is also presented as a "necessary and proper" response to the adverse selection problem created by ObamaCare's requirement that insurers cover everyone and charge the same rates regardless of expected claims. If this rationale counted as a constitutional justification, he noted, the federal government could expand its own powers indefinitely by creating new messes to clean up:

The individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself. Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or "necessary" the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause.

Vinson also pointed out that failing to buy health insurance does not automatically translate into imposing costs on others:

The uninsured can only be said to have a substantial effect on interstate commerce in the manner as described by the defendants: (i) if they get sick or injured; (ii) if they are still uninsured at that specific point in time; (iii) if they seek medical care for that sickness or injury; (iv) if they are unable to pay for the medical care received; and (v) if they are unable or unwilling to make payment arrangements directly with the health care provider, or with assistance of family, friends, and charitable groups, and the costs are thereafter shifted to others. In my view, this is the sort of piling "inference upon inference" rejected in Lopez [the 1995 Supreme Court decision that overturned the Gun-Free School Zones Act].

In this light, the "commercial choice" that Tribe says obviously justifies federal intervention is no different from myriad inactions that may (or may not) ultimately result in higher costs for others (often through government-mandated cost shifting)—an effect that, in the aggregate, could be called "substantial." These choices would include not just failing to buy other forms of insurance or protective products such as sunscreen and motorcycle helmets but failing to quit smoking (buy nicotine patches), lose weight (join Weight Watchers), eat properly (buy vegetables), exercise (buy a gym membership), get enough sleep (buy a good mattress), or practice good dental hygiene (buy toothpaste and dental floss). By Tribe's logic (which is also the Obama administration's), all these and many more health-improving, cost-reducing actions could be mandated under the Commerce Clause.

More speculation about the Supreme Court's response to ObamaCare here, here, and here. For more on the ill-defined boundaries of the Commerce Clause, watch Reason.tv's video on the subject (which Vinson cited in his ruling):