Wednesday, February 9, 2011

Clear Case?

Yesterday, Lawrence Tribe, a noted legal scholar, wrote a piece for the New York Times making the case that the Supreme Court will uphold the constitutionality of the healthcare bill.

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.

Mr. Tribe also believes that the justices of the Court, including the hard-core conservatives such as Antonin Scalia will support the law and put the Constitution ahead of political consideration. “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.”

Far be it from me to question Mr. Tribe’s knowledge of the law and the precedents, but after Bush v. Gore and Citizens United, excuse me for being a tad skeptical about the political considerations. Even people who agree with those rulings acknowledge that they were riddled with politics, and so have been a lot of rulings from the Court since it was established. So it may be a clear case to Mr. Tribe, but in matters like this, the political climate and the Court’s history make it anything but clear.