Spurious Exception To a Spurious Doctrine

I don’t know if Ben Smith’s anonymous “conservative lawyer” quoted at BuzzFeed today is a reliable source, but his argument for what a 5-4 majority of the Supreme Court might do to invalidate ObamaCare is hair-raisingly plausible:

“The court is going to find a spurious exception to a spurious doctrine,” he said. Then he offered a version of the rationale the Supreme Court majority will, he predicts, use to overturn not just the mandate, but the entire bill:

“You have built an imaginary mansion, with thousands of rooms, on the foundation of Wickard v. Filburn — the 1942 ruling that broadened the understanding of how the Commerce Clause could be used to regulate economic activity.

“We aren’t being asked to radically revise the Commerce Clause and throw out seven decades of law, and we won’t. But we know the founders never intended the Commerce Clause to allow the Federal Government to regulate everything on the planet. So we are going to accept Randy Barnett’s basically spurious exception to that basically spurious idea, and throw out the Affordable Care Act on the grounds that the Commerce Clause regulates “activity” (which we don’t really believe), but not “inactivity” (because, why not draw the line somewhere?).

“This is to say: You have built a fantasy mansion on the Commerce Clause. You can hardly blame us if, in one wing of this mansion, down a dusty corridor, we build a fantasy room called “inactivity,” lock the door, and don’t let you in.

Under this construction, of course, the Court wouldn’t admit what it was actually doing, but would embrace the “spurious exception” in order to avoid a direct reversal of the “spurious doctrine.” But it would definitely burrow into the foundations of the “fantasy mansion” in a way that would make it relatively easy for a future, more radically conservative Court–say, the kind that might exist after eight years of a Romney administration–to “throw out seven decades of law,” and with it, the underpinnings of seven decades of social progress, including such minor items as the Civil Rights Act of 1964.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.