Legal Commentary

Constitutional Doctrine and the Constitutionality of Health Care Reform

By David Bernstein

I?ve been following the debate both at the VC and elsewhere, and find myself somewhat amused at the law professor conceit that the constitutionality of the individual mandate will be determined based on whether the ?best? interpretation of USSC precedent supports it or not.

Here?s my take: What the opponents of the individual mandate had to do was provide plausible arguments that the individual mandate is distinguishable from precedents like Wickard v. Filburn and Gonzales v. Raich. Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant.

The modern Supreme Court is reluctant to directly overrule precedents, especially well-entrenched precedents, but is not at all reluctant to distinguish precedents, even when the distinctions in question are quite strained. I could present many examples, but just consider, for example, how Boy Scouts of America v. Dole turned out not to be governed by Roberts v. United States Jaycees; the Court distinguished Matthews v. Eldridge from Goldberg v. Kelly; or how the Court has gone back and forth between relying on Mulligan and Quirin in detainee cases without overruling either one of them, or really explaining how they don?t contradict each other.

So now that the opponents of the individual mandate have manged to make arguments that pass the laugh test, the Supreme Court?s ultimate decision will involve such factors as: (1) How popular will the individual mandate, and health care reform more generally, be when the Court takes up the issue?; (2) How popular will President Obama be at that time? (3) The Republicans on the Court will undoubtedly be less likely to support a law passed with only Democratic support; (4) Will Justice Kennedy be more in the mood to be susceptible to the ?Greenhouse Effect,? or to cement his conservative credentials, which in part will depend on, ?How close to retirement is he?? (5) Does Justice Scalia think that invalidating the individual mandate will somehow hurt the cause of ultimately overruling Roe v. Wade, something that I think is always on Justice Scalia?s mind? (6) Will the Republican House and the expanded Republican minority in the Senate show in any way that they take federalism and limited national government seriously, the way the Contract with America undoubtedly made Lopez more viable, and the Big Government conservatism of the Bush Administration helped lead to Raich? (7) Will the Court have other issues before it on which the conservative Justices would rather spend their political capital? And so on.

For what it?s worth, I remember law professors vigorously debating the law underlying the Bush v. Gore litigation. My eventual response was, ?the conservative Republicans on the Court will undoubtedly see what?s going on as the Democrat-dominated Florida Supreme Court trying to steal the election for Al Gore. And given that this case has unique facts that aren?t clearly governed by contrary precedent, you can expect all of them to vote for Bush, and, contrariwise, the liberal Democratic Justices to vote for Gore (though I was surprised that Breyer went along with the majority?s equal protection arguments, albeit not the remedy.)

UPDATE: I left out a crucial factor: If the liberals on the Court, like the dissenters in Lopez, are unable to articular a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority simply will not accept a doctrine that suggests that federal power is not one of limited and enumerated powers.

Full post as published by The Volokh Conspiracy on December 16, 2010 (boomark / email).