THE INDIVIDUAL MANDATE WILL GO DOWN
I am in my second year of law school. I have been through a semester and a half of
Constitutional Law. I am but a tiny,
tiny mind in comparison to many of the brilliant legal scholars that this
country possesses. But I believe, in one
sense, that this gives me an advantage.
I am not bogged down by decades of legal talk. I bring a fresh perspective to the table. And my mind has not been deep-fried in legal
academia for twenty years. In law school
we are meant to be taught to read between the lines, but when it comes to the
health care bill and the individual mandate, I believe that the majority of
legal scholars are wrong. And they are
wrong because they fail to read between the lines. A majority of law professors have expressed the view that the individual mandate will be upheld. I believe the individual mandate will be
struck down for two reasons, with one reason holding more weight than the
other. The first reason is because the
commerce clause has never been used to regulate inactivity and if the
individual mandate is upheld in this case, the commerce clause will lack a limiting
principle. And second, it will be struck down because the Court is a highly, highly political institution, and thus the
majority viewpoint, the conservative one, will win out in the end. It is this second reason that the majority of
legal scholars fail to take into account, and it is this reason, more than the
other, that spells doom for the mandate
LACK OF A LIMITING PRINCIPLE
Without citing case law and making this way more boring than
it already is, Congress’ commerce power has never before been used to
regulate parties that aren’t already engaged in an economic activity. It also has never before been used to force
people to enter a market they aren’t already in. The individual mandate in Obamacare does just
that: it forces people to buy health insurance and enter the market. Thus, this law breaks new ground. It forces people that aren’t buying health
insurance to buy health insurance, because, in the government’s eyes, this
person’s failure to buy health insurance affects interstate commerce. The slippery slope argument holds weight
here. If they can force you to buy
health insurance, they can also force you to buy broccoli. If this is held to be constitutional, there
is no limiting principle. The government
can force you to buy a cell phone, because the fact that you haven’t bought a
cell phone drives up the price of cell phones and that in turn affects
interstate commerce. This would give
Congress sweeping new powers, the consequences of
which we have no way of knowing.
This argument provides ample wiggle room for conservative
justices who have supported the expansion of commerce power in
the past (See: Scalia) to differentiate their past decisions and vote to strike. Therefore, the justices are unbound by stare
decisis, and essentially free to vote as they please. Also, this lack of a limiting principle will
probably be troubling to most of the justices, especially the conservative ones
who support a shrinking of federal power, not an expansion of it, and this
brings me to my next point.
ON THE SUPREME COURT POLITICAL VIEWS RULE
You see this is what legal scholars fail to recognize and
where they fail to read between the lines.
They analyze past cases and the legal reasoning behind them, and then
try to predict how the justices will vote.
And in non-politically charged decisions, they may be very accurate in
their predictions. But Obamacare is
perhaps the most politically charged decision since Bush v.
Gore. In Bush v. Gore the conservative
justices went exactly where the average person would predict, they disallowed a
re-count on the state level and put a conservative president into power. And all five of these justices did this by
flipping the script. They ignored
centuries of conservative jurisprudence which left decisions such as these to
the states, and approved of federal meddling in Florida's state election
procedures. The liberal justices did the
same, deferring to the state when they traditionally supported federal
action. Dozens of decisions like this
litter the landscape of Supreme Court history all the way back to F.D.R. and “The
switch in time that saved nine.” That situation is remarkably similar to the
current situation with Obamacare. F.D.R.
wanted to pass sweeping New Deal reforms, but the conservative justices did not
want to expand Congress’ commerce power.
So what did F.D.R. do? He threatened
to change the very structure of the Court in order to win this expanded
commerce power. Fearing such a change to
the Court itself, more than the expansion of the commerce power, one of the
conservative justices flipped, in what can only be seen as a political move, in
order to allow F.D.R.’s beloved New Deal legislation to be deemed
constitutional.
All of this points to an essential truth of the Supreme
Court that nobody likes to talk about and everybody wants to pretend doesn’t
exist: at its core, it is a political institution. It is in tune to every twist and turn of the
political landscape. It is not a
monolithic, super-computer that mechanically applies the law. More than anything it is a political
institution. Roberts, Kennedy, Scalia, Thomas and Alito were all christened by
conservative, Republican presidents.
Freed from the shackles of stare decisis, as they are here, and in the
midst of a political firestorm, they will retreat to their camps. They will find conservatively and, combined,
they have a majority. They will go as
the average person would predict a Republican would, just as they did in Bush v. Gore and countless other cases.
They will be troubled by the lack of a limiting principle, which expands
federal power, and they will strike the mandate down. And the liberal justices will do the same as
they support the legislation passed by a liberal, Democratic president. The Court will sever if they
can, and save parts of the bill, but the mandate will die, 5-4. Maybe then the
legal scholars will open their eyes.
Maybe then they will break out of their shell and face reality. The cold hard reality that we all know, but
hate to admit: that our judicial system is just as political as
any of our institutions. Fin.
