There’s an emerging political analysis of how the Supreme Court will rule on the constitutionality of the individual mandate contained within the big health care law. It suggests that the four liberals will vote yes, the four conservatives will vote no, and Justice Anthony Kennedy will decide the case.
In an op-ed in today’s New York Times, Harvard Law Professor Laurence Tribe, a leading light of liberal jurisprudence, rejects that analysis as an insult to most of the conservatives. Only Justice Clarence Thomas has previously cast a vote that would be reasonably consistent with striking down the individual mandate, Tribe writes. The op-ed goes over the other justices and the issue involved in the case and argues that the constitutionality of the law isn’t a very close question. The issue is not, Tribe argues, do Americans possess a fundamental constitutional right that protects them from being ordered by the federal government to buy something that they can afford — in this case, a health insurance policy.
The question is does Congress have power to regulate the national health care market under its power to regulate interstate commerce. (Yes, easily, says Tribe.) Would requiring individuals to buy insurance, or if they don’t buy to pay a tax penalty, be “necessary and proper” to making this particular effort at health insurance regulation work. Clearly yes, says Tribe, who explains:
“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.
“Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed ‘necessary and proper’ to effectively enforce broader federal regulation of nationwide drug markets. 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.”