Tuesday, February 8, 2011

Professor Tribe Thinks People Like Me Misunderstand the Supreme Court

Harvard Law Professor Laurence Tribe reads the Supreme Court's tea leaves as pointing strongly toward affirming the constitutionality of the Patient Protection and Affordable Care Act.  In fact, he thinks people like me are very much off base.
But 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.
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? 
Professor Tribe is quite correct about the Court's string of New Deal compromise Commerce Clause cases.  PPACA falls is a straight line with those cases, but I think he underestimates the extent to which the mandate to purchase health insurance may be distinguishable from other regulated economic activity.   Regulating what kinds of products may be sold, by whom, to whom, and at which prices in an interstate marketplace are within the scope of the Commerce Clause.  Requiring someone to participate in a marketplace in the first place is different.  It is the difference between regulating commerce and regulating everything. 

If Congress may compel a person to purchase health insurance to expand the risk pool, may it also require him to purchase life insurance?  Surely, people without life insurance sometimes burden the public with their burial expenses and the costs of caring for dependents for whom no arrangements have been made.  In what way would a life insurance mandate be different from the health insurance mandate?

If Congress may penalize people who fail to buy insurance, may it also penalize people for being overweight?  Surely, people who are overweight, on average, burden the public by consuming disproportionate shares of health care resources.  In what way would a mandate against obesity be different from the health insurance mandate?

Just because the Commerce Clause permits Thing 1 and Thing 2 does not mean that it must also permit Thing 3 as long as it falls on the same line as 1 and 2.  Requiring people to spend their money on a private good sold only by a relatively small number of government approved and regulated firms is different than taxing workers to provide a public benefit or social service.  It may only be different as a matter of degree and not of type, but it is a consequential degree that yields a more legitimate argument against PPACA than Professor Tribe suggests.

That legitimacy is critical, as I explained yesterday, because it creates the space necessary for the justices' political predispositions to play a larger role in the outcome of the case than if it were as open-and-shut as Professor Tribe suggests.

If I were to read political motives into Professor Tribe's editorial, I would, in fact, presume that he fully understands this and is working to delegitimize legal arguments against PPACA to leverage political dynamics on the Court to his advantage.  More precisely, he presents PPACA as a mortal lock for a favorable judgment because only the perception that the alternative outcome is wholly without legal merit can salvage the law. 

Indeed, Professor Tribe has some track record of this kind of strategic public relations campaigning.  In 1989, also in the editorial pages of The New York Times, Professor Tribe argued that the Flag Protection Act, which made it a federal crime to burn an American flag, was constitutionally permissible despite the Supreme Court's recent ruling in Texas v. Johnson that state laws banning flag burning violated the First Amendment.  Held up against Professor Tribe's extensive public record, his opinion about the flag burning ban is anomalous.  It may be that he sincerely believed Congress could criminalize flag burning.  Or, it may be that he made this opinion public in order to forestall efforts to amend the Constitution to explicitly permit Congress to ban flag burning in favor of a statutory remedy that would not survive judicial scrutiny.  In doing so, Tribe provided cover for those who privately opposed banning flag burning while posturing by passing an ordinary statute against it.  By the time the Supreme Court got around to striking down the new federal law in 1990, tempers had cooled sufficiently to allow the constitutional ban to be (politically) safely slain.

I oppose banning flag burning, and I can appreciate the intellectual sacrifice that, I believe, Professor Tribe made by strategically misrepresenting his views to advance a political-constitutional cause he supported.  My point in bringing this up now is merely to suggest that law professors can be just as much attitudinalists as judges and justices and that public representations of personal views may be influenced by strategic considerations.  Given the political imperative of undermining the credibility of constitutional arguments against PPACA, I think it is worth taking claims about the legal standing of PPACA from its political supporters with a grain of salt.

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