The WaPo has a story this morning about the inevitable lawsuits challenging the constitutionality of the health care bill’s individual mandate. Over at Balkinization, Professor Mark Tushnet reminds his liberal colleagues, whose quotes in the WaPo piece discard the conservative arguments against the mandate, that the law is what five members of the Supreme Court declare it to be. In Tushnet’s words,
where the stakes are high enough and the political energy is available (to lawyers and judges), at any time the body of legal materials contains enough stuff to support a professionally respectable argument for any legal proposition. So too with the constitutional arguments against the individual mandate. [...]
[W]hat the law “is” is what the courts will do in fact, the thing to do is to figure out which side of the argument can count to five first.
Or, put another way, remember Bush v. Gore?
Indeed, some conservative and libertarian legal scholars and practitioners see the health care bill as the best opportunity to restore the “Constitution in Exile“–one eminently protective of private contracts and individual economic rights against government interference–since its banishment in 1937. A few such scholars were quoted in the WaPo piece. Since the fall, the Wall Street Journal has opened its op/ed pages to Constitution-in-Exilers who have attacked the health care legislation as patently unconstitutional.
These advocates are banking on the fact that the health care overhaul is so drastic of an expansion of the modern constitutional order–one in which the Commerce Clause protects nearly every economic regulation–as to compel at least five members of the Court to declare once and for all the intellectual bankruptcy of the country’s post-1937 jurisprudence.
Tushnet is right to warn his fellow liberals not to be so sure of the individual mandate’s constitutionality. And surely there will be members of the Court–Justice Thomas, for one–who will eagerly vote to condemn the mandate. But per my belief that the Roberts Court has been acutely responsive to the surrounding political climate–see my introductory post below–I do not believe a majority of the Roberts Court will want to take the side of the Tea Partiers and the Tenthers on health care.
Further, Congress’s votes in both chambers did not reflect the broad public support for health care reform. In Bush v. Gore, the Court’s five-member majority could rely on just about 50% of the population to support its Presidential preference. For any challenge to the health care legislation, at least one of the current Court’s conservatives–my guess is Roberts himself–will recognize that the political moment, at least in terms of an individual mandate for all Americans to have health insurance, is not ripe for restoring the reign of the Constitution in Exile.