Tribe trusts justices’ integrity and consistency

TRIBE TRUSTS JUSTICES’ INTEGRITY AND CONSISTENCY…. Arguably today’s most fascinating op-ed comes by way of Harvard Law scholar Laurence Tribe, who writes in the New York Times today that the Affordable Care Act and its proponents have nothing to fear at the U.S. Supreme Court. Indeed, he considers the question a no-brainer — of course a high court majority will uphold the law. It’s a “clear case.”

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?

Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.

Now, it’s difficult to say with certainty whether the piece has an underlying tone. Tribe is either entirely sincere, and believes the justices will do their duty, with a ruling based on principle and precedent, or his piece has an understated sardonic quality — which is to say, maybe Tribe is sending some kind of subtle message, effectively arguing, “If the conservatives on the high court rule like Vinson and Hudson did, they’re shameless and unprincipled hacks, bringing disgrace to the bench.”

Assuming it’s the former, Tribe genuinely believes that a court majority is committed to sound legal reasoning, and will honor their own previous rulings.

To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well…. Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.

I’d love to have this kind of confidence in the justices’ integrity and intellectual consistency. I don’t, but here’s hoping I’m wrong and Tribe is right.