Better in their words…

Isn’t it obvious?
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By JAMES TARANTO in 2/8/11 WSJ
Judge Roger Vinson’s order last week declaring ObamaCare unconstitutional has prompted a pair of op-eds by professors at elite law schools: Akhil Reed Amar of Yale, in the Los Angeles Times, and Laurence Tribe of Harvard, in the New York Times. Both profs claim ObamaCare is constitutional.

We were going to write “argue” rather than “claim,” but we think that may be too generous. Neither article is a serious piece of legal analysis, because both professors simply refuse to take seriously the legal arguments on the other side, even after those arguments have been accepted by two federal trial judges. Rather than grapple with a novel legal issue in a serious scholarly way, it’s as if they stick their fingers in their ears and sing “Law law law law law.”

Amar’s piece is just insulting. He opens by declaring: “My students understand the Constitution better than the judge,” and closes by likening Vinson’s order to (we’re not kidding) the infamous Dred Scott case: “In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional.”

As for Tribe, his aim is to reassure New York Times readers that the Supreme Court will uphold ObamaCare:

The predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.
In fact, the issue that will ultimately come before the court–whether the ObamaCare provision compelling individuals to purchase medical insurance is a legitimate exercise of Congress’s power “to regulate Commerce . . . among the several States”–is novel.

Tribe claims that the judges who overturned ObamaCare “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.” That is false. Both judges concluded that Congress had exceeded its constitutional power, not that it had violated an individual constitutional right.

Tribe goes on to explain why he thinks a 5-4 Supreme Court split is not a sure thing. His analysis here seems right to us, although he shows his own bias by examining only the “5” side of the equation and treating the “4” as if it required no explanation. So let’s begin our own analysis with the latter. The four Democratic nominees to the court are indeed likely to vote to uphold ObamaCare–though not, as Tribe’s piece would suggest, for strictly partisan reasons.

The prevailing “liberal” jurisprudential view (held by some Republican-nominated justices, such as John Paul Stevens and David Souter, as well as by Democratic ones), is that Congress’s power under the Commerce Clause is essentially unlimited. In this view, the court is obliged to defer to Congress’s interpretation of its Commerce Clause power unless a law violates an individual right guaranteed by the Constitution, whether an enumerated one like freedom of speech or an unenumerated one like the right to abortion.

Thus Justices Ruth Bader Ginsburg and Stephen Breyer (along with Stevens and Souter) dissented from U.S. v. Lopez (1995) and U.S. v. Morrison (2000), in which the court, for the first time since the New Deal, placed limits on Congress’s power under the Commerce Clause. Each of these cases struck down a federal statute on the ground that their subject matter–gun possession and domestic violence, respectively–was not closely enough related to “economic activity” to be justified as a regulation of interstate commerce. In neither case was it asserted that the law in question violated an individual constitutional right.

One guesses that Justices Sonia Sotomayor and Elena Kagan take a similar view to that of Ginsburg and Breyer, although strictly speaking neither has yet participated in a major Commerce Clause case. Nor has Chief Justice John Roberts or Justice Samuel Alito, leading Tribe to conclude that they could vote to uphold ObamaCare.

The three remaining justices all have a record of Commerce Clause jurisprudence. All three voted with the majority in Lopez and Morrison, which recognized limits to Congress’s power under the Commerce Clause. But according to Tribe–and again, we agree–only Justice Clarence Thomas is a sure vote against ObamaCare, 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.”

Justices Antonin Scalia and Anthony Kennedy were both in the majority in the case that currently defines the outer limit of Congress’s Commerce Clause power, Gonzales v. Raich (2005). As Tribe explains, Raich upheld “Congress’s power to punish those growing marijuana for their own medical use” even in compliance with state law.

(Raich, by the way, is a good illustration of the distinction between political “liberals” and “conservatives” and judicial ones. Generally, political liberals are more permissive about medical marijuana, but all four of the court’s “liberals” voted to uphold this law, and two of its “conservatives,” Thomas and Chief Justice William Rehnquist, voted to overturn it.)

What distinguishes Raich from Lopez and Morrison is that the law in question did have a plausible nexus to economic activity. So, clearly, does the ObamaCare individual mandate. But the high court has never extended Congress’s Commerce Clause power as far as it will be asked to do in the ObamaCare case. The question of whether Congress may compel as opposed to prohibit “economic activity” has not been addressed before.

Undeniably the court, over the past 70 years, has recognized very few limits on congressional authority under the Commerce Clause. It could continue this trend and uphold ObamaCare. But Amar and Tribe misinform their readers when they claim that it must do so. Blogress Ann Althouse, a real legal scholar, speculates that Tribe is trying to influence the Supreme Court:

Tribe’s rhetorical move has become comical at this point. 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.
Then again, maybe Amar and Tribe have let their status as “elite” academics go to their heads. Maybe they’ve just become such know-it-alls that they actually don’t know any better.