David Bernstein’s Commerce Clause Analysis Is Just Sad; But Probably Right

At the law professor group blog Volokh Conspiracy, David Bernstein has some depressing thoughts that are ostensibly about Obamacare and the Commerce Clause, but are really a terrible indictment of the Supreme Court:

Here’s my take: What the opponents of the individual mandate had to do was provide plausible arguments that the individual mandate is distinguishable from precedents like Wickard v. Filburn and Gonzales v. Raich. Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant.

The modern Supreme Court is reluctant to directly overrule precedents, especially well-entrenched precedents, but is not at all reluctant to distinguish precedents, even when the distinctions in question are quite strained. I could present many examples, but just consider, for example, how Boy Scouts of America v. Dole turned out not to be governed by Roberts v. United States Jaycees; the Court distinguished Matthews v. Eldridge from Goldberg v. Kelly; or how the Court has gone back and forth between relying on Mulligan and Quirin in detainee cases without overruling either one of them, or really explaining how they don’t contradict each other.

So now that the opponents of the individual mandate have manged to make arguments that pass the laugh test, the Supreme Court’s ultimate decision will involve such factors as: (1) How popular will the individual mandate, and health care reform more generally, be when the Court takes up the issue?; (2) How popular will President Obama be at that time? (3) The Republicans on the Court will undoubtedly be less likely to support a law passed with only Democratic support; (4) Will Justice Kennedy be more in the mood to be susceptible to the “Greenhouse Effect,” or to cement his conservative credentials, which in part will depend on, “How close to retirement is he?” (5) Does Justice Scalia think that invalidating the individual mandate will somehow hurt the cause of ultimately overruling Roe v. Wade, . . . .

In other words, it’s all politics and no Constitution.  Sadly, I can nibble at the edges — and would say that the indictment primarily covers the lefties and not principled folk such as Thomas, Alito, Roberts, and mostly Scalia — but the math is close enough for government work.

There is the glimmer of hope:

If the liberals on the Court, like the dissenters in Lopez, are unable to articular a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority simply will not accept a doctrine that suggests that federal power is not one of limited and enumerated powers.

And how, exactly, would a decision supporting the individual mandate allow a “limiting principle”?  I cannot think of one.  But then, I didn’t go to Harvard or Yale, so I guess I’m not smart enough to divine it.

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Published in: on December 16, 2010 at 10:57 am  Leave a Comment  

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