Ever since the first lawsuits started being filed challenging the national health care law, liberals have been trying to dismiss them as frivolous. Now, even as the Supreme Court prepares to hear six hours of oral arguments on the matter – the most it has granted to a case since the 1960s – liberal commentators are still heaping ridicule on challengers of the law. In doing so, they’re hoping to lay the groundwork so that if the law does get struck down, they can dismiss it as a purely political decision by a radical right-wing Court.
Slate’s Dahlia Lithwick offers us this bit of legal analysis: “That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it. Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, ‘Are you serious?’”
Recommended Stories
To start, it’s ridiculous to say that administration officials haven’t expended energy defending the heath care law. As Lithwick herself wrote when arguing that Justice Elena Kagan shouldn’t recuse herself from the case due to her time in the administration, “then-Solicitor General Kagan went out of her way not to participate in the meetings and strategy sessions surrounding the health care litigation…” Why would there need to be so many meetings and strategy sessions about legal challenges that the administration wasn’t going to spend any energy defending against? Why would she feel the need to remove herself from meetings if there wasn’t a serious threat of a Constitutional challenge? Furthermore, once the law was challenged in court, why did the administration dispatch the acting U.S. Solicitor General at the time, Neal Kumar Katyal, to argue the health care cases even in the lower courts? That’s not exactly a low level staffer. Even if they hadn’t expended such energy to defending it, that wouldn’t be evidence of the law’s constitutionality, because shocking as it may be, it’s possible for Obama’s team to be wrong in its legal judgments. As for citing Pelosi as an authority on constitutional law in an article that criticizes opponents of the law for having weak arguments — is Lithwick serious?
Linda Greenhouse of the New York Times also cited Pelosi’s comment, and her main line of mockery is that opponents of the law use the word “unprecedented” too much. She snarked, “I want to unpack the challengers’ Commerce Clause argument for what it is: just words. Basically just one word, in fact: ‘unprecedented.’ Did you know that the individual mandate is unprecedented? You will after you read the brief filed by the redoubtable Paul D. Clement, the former solicitor general, on behalf of the 26 states that filed suit to challenge the law. The brief uses the word ‘unprecedented’ 10 times, by my count — I probably missed some — not counting such other formulations of the same thought as ‘novel’ and ‘first ever.’
UCLA law professor Adam Winkler, making a similar point, wrote that, “Challengers to the health care act emphasize the novelty argument because they have little else on which to rely.”
But there’s an obvious reason why the law’s opponents are emphasizing the fact that the mandate is unprecedented. It’s because Obama administration lawyers are citing a bunch of cases they say give them the power to impose a health insurance mandate, and opponents are saying that those cases aren’t relevant to this suit because the mandate is a different beast. Specifically, it’s different from other cases because the government is actually forcing people to enter the stream of commerce by purchasing a product that they don’t want. Even former acting Solicitor General Kaytal conceded in Sixth Circuit oral arguments that the Supreme Court had “never been confronted directly” with a case in which Congress used the Commerce Clause of the U.S. Constitution as a tool to compel action. He went on to cite the Heart of Atlanta Motel case as the closest relevant example. In that landmark 1964 civil rights case, the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants. But again, in that case, the business owners were already engaging in commerce.
Sahil Kapur of Talking Points Memo informs us that, “Experts on both sides of the ideological divide say the ruling will come down to whether the justices rule with an eye toward precedent. If they do, they’ll uphold the law. An ideology-driven move to strike down the mandate, a central component of the law, would mark a rare, swift departure from precedent.”
By “experts on both sides,” Kapur means Orin Kerr, who is quoted in the article and has long been one of the most prominent libertarian skeptics about legal challenges to Obamacare.
Left unnamed in any of these analyses is Judge Frank Hull, the Clinton appointee who co-authored the 11th Circuit Court of Appeals decision overturning the mandate. In the decision the judges wrote that: “The government’s five factual elements of ‘uniqueness,’ proposed as constitutional limiting principles, are nowhere to be found in Supreme Court precedent. Rather, they are ad hoc, devoid of constitutional substance, incapable of judicial administration—and, consequently, illusory.”
Later on, the court added that: “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. ‘Uniqueness’ is not a constitutional principle in any antecedent Supreme Court decision.”
It’s hard to believe that, at this point, anybody following the issue closely would dismiss the substance of the legal challenges to the health care law. But it makes sense from a political perspective. This is a pre-emptive attack by the left so that they can brand any decision to overturn the law as illegitimate.
For more on this, read Reason’s Peter Suderman.
UPDATE: Georgetown law professor Randy Barnett, an intellectual architect of the legal challenges to Obamacare, responds to Lithwick, who grossly distorted his words to make it appear as though he was suggesting Justice Scalia would abandon his prior opinions for political reasons. In reality, Barnett was arguing the exact opposite — that Scalia wouldn’t be bound by his prior opinions because the issues at question in the Obamacare suit are different.
