by Beverly Mann
Laurence Tribe on the ACA … and the Supreme Court justices
Argggh. In rereading my comment from yesterday to Bruce’s “Health Care ACA Act: Who does the Roberts Court Work For?” post, I realised that there’s a major part of my comment that’s, well, missing: the part that explains why I started out saying that the potential conflict between the pro-business Republicans and the Tea Baggers, and therefore between the business-interests-first justices and the Tea Party justices, appears more significant than it actually is, but ended up predicting that business-proxy Roberts and anti-libertarian Alito indeed would part company with Tea Partiers Scalia and Thomas and vote to uphold the insurance mandate.
OK, well, I was in a hurry when I wrote that post. Today I’m not in a hurry, and I was going to post a comment explaining how I got from Z to A. But it turns out that eminent Harvard constitutional law professor Laurence Tribe did that for me, in an op-ed piece today in the New York Times: On Health Care, Justice Will Prevail.
Tribe explains, as I should have but did not, that a new Supreme Court precedent on the breadth of Congress’s authority under the Commerce Clause, via the Necessary and Proper Clause, of the sort that would be necessary to invalidate the insurance mandate in the ACA, also would establish grounds to invalidate a slew of federal laws, current ones and potential ones, that Scalia and Alito like, particularly criminal laws of the sort that the Court upheld in a 2005 opinion written by Scalia and joined by Alito (uphold a law making it illegal to grow marijuana on your own property for your own use rather than for sale in interstate commerce), but also—although Tribe doesn’t mention this—laws such as the one requiring 18-years to register with the Selective Service.
The authority for the Selective Service law is the Constitution’s “provide for the common defence” Clause rather than the Commerce clause, but the main objection to the ACA’s insurance mandate is, as Judge Vinson put it, that it compels activity by those who want to opt for inactivity. If that’s a problem under the Commerce Clause paired with the Necessary and Proper Clause, why wouldn’t it be problem under the Common defence Clause when paired with the Necessary and Proper Clause?
But Tribe and I part company in predicting what Scalia will do, mainly because we part company in our view of the intellectual integrity of the justices, and probably of judges in general.
To imagine that Justice Scalia would abandon the fundamental understanding of the Constitution’s necessary and proper clause that he expressed six years ago in the marijuana case, because he was appointed by a Republican president, is to insult both his intellect and his integrity, Tribe says. Well, his integrity anyway. As would imagine that Justice Scalia would abandon the fundamental understanding of the Constitution’s necessary and proper clause that he expressed six years ago in the marijuana case, because he is a Tea Party fave would, too.
And as several commentators have pointed out recently, Scalia indicated recently in a dissent from the Court’s refusal to hear a particular case, that’s likely what he’ll do. Only Thomas, who dissented from Scalia’s opinion in the marijuana case in 2005, also dissented from that recent refusal to hear that other case.
Tribe’s umbrage that legal commentators are expressing their expectation that the Court will divide 5-4 along ideological lines in deciding whether the mandate in the ACA is constitutional makes my skin crawl. Tribe, some of y’all may recall, was Al Gore’s Supreme Court advocate in Bush v. Gore. His point that the ACA opinion will not—could not—be a ruling good for that case only is spot-on. Which is why I think Roberts and Alito will vote to uphold the mandate. “My bet—not the ranch, but let’s say a nickel—is that Roberts and even Alito will vote to uphold the mandate,” is how I ended my post comment to Bruce’s post yesterday.
But Tribe knows well that it is only for that reason—that the ACA case, unlike Bush v. Gore, cannot be limited to that case only, and that an opinion invalidating the insurance mandate as beyond the reach of the Necessary and Proper Clause, would have repercussions that some of the Federalist Society justices wouldn’t be happy about—that those justices may vote to uphold the insurance mandate. For that reason, Scalia may have second thoughts and vote to uphold it; it won’t be because his intellectual integrity is impeccable.
Just as Tribe’s fawning over Scalia and the other justices has everything to do with Tribe’s ongoing Supreme Court practice, and nothing to do with his opinion of the intellectual or personal integrity of the justices.