FIRST ONE @ ONE FIRST

Tea?

Posted in Clairvoyance by Mike Sacks on January 3, 2010

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.

About these ads

4 Responses

Subscribe to comments with RSS.

  1. hoboduke said, on January 3, 2010 at 1:10 pm

    The legal precedent, is that our legislators can reduce citizens to indentured servants to a new law. We must buy health insurance according to their dictates, not according to our freedom of choice. The new law will force insurance provide abortions. Why do I need to fund murder?
    We must not smoke! We must save the polar bears! Maybe we should ban living in California, since they have forest fires every year that destroys and kills more trees and wildlife than loggers.

  2. [...] Well, no, the whole “Greenhouse Effect?” Properly understood, they are referring to me not as an individual but as sort of an embodiment of Eastern liberal media, namely The New York Times. No, I don’t think that’s the case, but it’s certainly true that over time, the court certainly cannot be completely at odds with the American public. I mean, that’s what happened in the Roosevelt court-packing crisis. I hear people speculate that if we were ever to pass a health care bill with a mandate that the court would declare it unconstitutional, but I would be completely shocked if that ever happened, because that would really be a return to the 1930s, where the court was standing in the way of major social legislation that the public had called for. So, I would be extremely surprised if that ever happened again. [F1@1F NOTE: My thoughts exactly.] [...]

  3. [...] of constitutional attacks on the now-passed Patient Protection and Affordable Care Act (PPACA), my original post from early January still [...]

  4. [...] F1@1F in January: 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. [...]


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 113 other followers

%d bloggers like this: