The Case Is Submitted

by Pejman Yousefzadeh on March 29, 2012

Obamacare took yet another beating yesterday before the Supreme Court, and its proponents now expect the worst. Even Dahlia Lithwick appears scared, though she doubtless continues to take the Pelosian line that no one who suggests that Obamacare might be unconstitutional can possibly be serious. Many of the law’s supporters are reduced to trying to cheer themselves up with the thought that if the Court strikes down the Affordable Care Act, it will motivate President Obama’s supporters in the presidential election, but that analysis neglects just how unpopular the law is, and it also neglects the fact that voters opposing the president’s re-election wil also be motivated. After all, they will work extra hard to put a different person in the White House so as to have a better chance of getting the kind of healthcare reform replacement that they want.

Lithwick noted that whenever Chief Justice Roberts challenged the government’s position, it seemed that he was speaking for himself, but whenever he took on the challengers, he did so by channeling the arguments of the government. This suggested distance between the chief and the government’s position. Philip Klein notes the same thing, and suggests that it is a very bad sign for the proponents of the law. I am inclined to agree; there ought to be more suspense about Justice Kennedy’s vote than there is about the chief’s, and Justice Kennedy looks like he might swing against finding the law constitutional himself.

Reading the tea leaves, a host of figures are out to undermine the legitimacy of the Roberts Court, and Glenn Thrush lingers lovingly on their rage. I don’t know why Thrush feels it is necessary to play the role of sockpuppet for Roberts critics, but perhaps he views it as a good career move. In any event, it is amusing to contemplate the argument that if Roberts votes his mind, he is somehow destroying the Court’s standing, but presumably, if the four liberal justices vote their minds, the Court will not suffer for it. It isn’t until well into Thrush’s article that one reads the words of defenders of the Roberts Court. I hardly think that’s accidental; Thrush seems glad to bury their views. The Thrush article may be summarized as stating the following: “How dare conservative Supreme Court justices vote conservatively!” How lame a lament. The Court’s conservatives have no obligation whatsoever to throw a bone to their liberal critics if it means casting a vote in a way that conflicts with their genuine views regarding how a particular case ought to be decided. That we are even debating such a childish proposition makes one fear for the Republic.

Meanwhile, the White House states that it has full confidence in the solicitor general. To be fair to Donald Verrilli, who is by all accounts an excellent lawyer, he was defending the indefensible. Some coughing, stammering, and discombobulation is to be expected. On another front, note that Paul Clement incorporated Mitt Romney’s argument into his case.

It’s worth getting an idea of just how incoherent the constitutional defense of Obamacare really is. David Bernstein helps us do so. Consider the following attempts to constitutionally justify the Affordable Care Act:

Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?”

Here are a few more pearls of constitutional wisdom from our elected representatives.
Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
Rep. Stark responded, “the federal government can do most anything in this country.”
Rep. Clyburn  replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
Rep. Hare said “I don’t worry about the Constitution on this, to be honest [...] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

The whole thing would be laughable if the subject matter were not so serious. Oh, and back to Dahlia Lithwick; Jonathan Adler sums up her views succinctly:

Shorter Dalhia Lithwick: The mandate must be constitutional because it’s compassionate to care about others.

Less short Dalhia Lithwick: The mandate must be constitutional because it’s about the freedom to have the government make sure we take care of each other.

Lithwick’s column makes the common mistake of evaluating a measure’s constitutionality based upon the desirability of it s purpose.  Yet as Paul Clement noted in yesterday’s oral argument (and we’venotedrepeatedly), there are many other ways of ensuring that those in need are able to obtain medical care and even of encouraging more Americans to obtain health insurance.  Lithwick argues opposition to the mandate is grounded in a “dark vision” of freedom circa 1804, ignoring the legions of public policy measures adopted since that expand the social safety net without the imposition of PPACA-style mandates.

Read the whole thing. Advocates of original public meaning jurisprudence quite properly inveigh against the very thing that Lithwick is doing–envisioning a super-legislator role for the Court. How nice of her to confirm that our concerns regarding her position–and the position of her ideological allies–are entirely well-placed.

I continue to think that the Court will find some way to split the baby on this issue–rule that the individual mandate is unconstitutional, but that it can be severed from the law. I also think that the Court will let the Medicaid expansion go through. But I am less confident than I initially was that the Court will find the mandate is severable, and from a policy perspective, I don’t see how Obamacare can stand if the mandate is found to be unconstitutional.

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