Constitutional law will trump politics on health care reform

Some strong words on the constitutionality of the individual mandate from a renowned expert on the constitution, Laurence Tribe, author of The Invisible Constitution. The Harvard Law School professor once described President Obama as “”the best student I ever had.” He was an active supportor of Obama’s presidential campaign, serving as a judicial adviser.

Tribe generally opposes a literalist interpretation of the Constitution. Speaking of the anticipated Supreme Court decision on the health care bill: (emphasis added)

[T]he 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.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Tribe compares health care to Social Security:

For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.

Speaking of the federal court justices who have ruled that the individual mandate – or the entire bill – unconstitutional because it attempts to regulate “inactivity” (not purchasing insurance) rather than “activity”:

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.

He doesn’t seem concerned, as others do, that the requirement to purchase insurance is not actually called a “tax” in the bill:

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.

Referring to Justice Scalia’s 2005 opinion on the homegrown medical marijuana decision, Tribe objects to the assumption that justices will vote their politics:

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. … 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.

Tribe also comments on the past opinions of Justices Roberts, Alito, and Thomas.

He concludes:

There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.

A good pep talk. Let’s hope he’s right.

Resources:

Image: Oregon State

Laurence Tribe, On Health Care, Justice Will Prevail, The New York Times, February 7, 2011

Laurence Tribe, The Invisible Constitution (Inalienable Rights)