The New Republic

I believe the word we're looking for is "specious." Maybe that will impress Scalia.

- timteeter

May 10, 2011 at 6:44pm

I think there is a simple way to get the Justices to uphold the law. Tell them that the ACA will make it easier to increase Judge's salaries. The Chief Justice vowed in 2007 to continue Chief Justice Rehnquist's 20 year effort to increase judicial pay. Hold that wiggling worm out there and they can't resist.

- Nusholtz

May 10, 2011 at 6:50pm

Who's the goofy guy doing the Jack Benny impersonation? Oh, it's that goofy guy.

- rayward

May 10, 2011 at 7:03pm

After they gave the Presidency to Bush in 2000, there is little doubt in my mind the ACA will be declared unconstitutional, with good odds that they will start drafting the decision and opinions before the trial even begins.

- GSpinks

May 10, 2011 at 8:24pm

Well again, the ideologues "know" the answers in advance, but the Supreme Court could go either way on this one. It may all be up to Anthony Kennedy, who is the judge that lawyers put their cases to anyway, when there is an ideological split among the justices.

- liberalref

May 10, 2011 at 9:04pm

GSpinks, don't you think the opinions are being drafted already, somewhere? The question is how many will sign on to it.

- cspencef

May 10, 2011 at 10:02pm

Are we all in agreement that the best way to ensure the successful entrenchment of ACA as firm law, right-wing judicial branch be damned, is to support & oversee its proper funding & implementation in the meantime before any SCOTUS challenge has a chance to throw the funding & implementation in reverse? It seems that the generally sloooooooowwww pace of legal action should favor the cause of those who want to follow through on the passing of ACA more than a year ago. Perhaps our favorite blogger-wonk (No offense, Mr. Cohn.) could provide us the details of an upcoming timeline of ACA implementation/funding benchmarks that would signify the presumably increasing difficulty of the task of Tea Partyish attorneys general & governors to overturn or deny the federal law of the land in their respective states. I at least hope we're past the point where I'll be subjected to watching Representative Peter King on CNN literally licking his lips at the what he thinks is the very real prospect of a Republican President being sworn in and then repealing ACA literally minutes later.

- Konstantin

May 11, 2011 at 2:27am

I hope that the mandate is upheld, because without it the ACA will unravel, and, though I would have preferred a public option or even single-payer, I would not like to see the ACA dismantled. But I cannot agree with Professor Koppelman or Chait that the constitutional objections are frivolous. Koppelman’s article reads like a dissenting judicial opinion and does nothing to show that the argument for the constitutionality of the mandate is either simple or obvious. Indeed, much of Koppelman’s argument consists of policy considerations that, while compelling, do nothing to show that the constitutional objections are “silly.” Koppelman contends that, “The novel approach to constitutional law that [opponents] propose would misread the Constitution, betray the intentions of the Framers, and cripple the nation’s ability to address one of its most pressing problems.” It is not obviously true that the Commerce Clause objection misreads the text of the Constitution or betrays the intention of the Framers. And the nation’s ability to address pressing problems is a policy concern, not a legitimate consideration for constitutional interpretation. The Constitution’s text does not compel a conclusion that the Commerce Clause should be construed as broadly as it has been construed by the Supreme Court. Nor is there any indication that I know of that the Framers intended the power under the Commerce Clause to encompass any intra-state commerce, or even any non-commercial activity, that “affects” interstate commerce. Certainly the Framers would be surprised to learn that the Commerce Clause empowers Congress “to solve problems that the states cannot separately solve *** and [to] choose any reasonable means to do that.” The most that can be said is that the Commerce Clause objection seeks to roll back the judicial expansion of the Commerce Clause that has occurred over the last century. But even that is a questionable proposition. The power to regulate the insurance industry, which few would dispute, does not obviously entail the power to compel individuals to engage in commercial transactions with private insurance companies. Koppelman would locate that power in the Necessary and Proper Clause, which provides that Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers[,]” including the power to “regulate Commerce … among the Several States[.]” But it is not frivolous or “silly” to conclude that the Necessary and Proper Clause does not expand congressional powers beyond the limits of the grant or that it does not grant powers in addition to the enumerated powers I agree that the inactivity/activity distinction is spurious. Nevertheless, it is not obvious that the power to regulate commercial activity entails the power to compel individuals who otherwise would not do so to enter into private commercial transactions. And even if the Commerce Clause can be interpreted to authorize the mandate, the Commerce Clause power is circumscribed by the Bill of Rights, e.g., the substantive due process rights that the 5th and 14th Amendments have been held to embody, and which have been construed to protect individual liberty in ways that go beyond freedom from being imprisoned without due process. So by all means, let’s make the argument that the mandate is constitutional, and that, even if Congress’ power to enact it does not reside in the Commerce Clause, it resides in the constitutional taxing power. But let’s not argue that the Commerce Clause objection is frivolous. Dhurtado

- NR143296

May 11, 2011 at 4:50am

I'm going to go out on a limb and predict that the Supreme Court will uphold the mandate. And I think the deciding vote, if one is necessary, will be Scalia's. Notwithstanding Bush v. Gore and Citizens United, I do not think Scalia is so corrupt that he would hold that the "mandate" (which is not really a "mandate," but is rather an additional tax) is not authorized under Congress' taxing power. I am sure he has the sophistic and rhetorical skills to differentiate this case from the Lopez case with regard to the Commerce Clause, but I doubt that he could make a credible argument that the mandate is not a constitutional exercise of Congress' taxing power. But we shall see. Dhurtado

- NR143296

May 11, 2011 at 6:57am

Koppelman's Point, I believe, is to inform the public of the weakness of the constitutional arguments against striking the mandate. The problem is that the court is the final arbiter, as indicated in the story of a lawyer who responded to the statement by one of the Justices that his position was not the law: "It was until your honor just spoke." Either the Justices have to believe that the ACA is in their interest to be upheld, like their salaries or their medical care, or the American public has to learn that medical coverage under the current laws (the ACA and Medicare) will be drastically reduced under the Ryan plan; and then run on that from now through 2012.

- Nusholtz

May 11, 2011 at 8:07am

Rather than parse the meaning of "commerce", it would be more fruitful for opponents of the ACA to focus on "regulate". Certainly "regulate" does not encompass the concept of mandate. Does the Feds power to regulate gun purchases extend to mandating gun puchases? Not unless the definition of regulation was much broader in 1789. For that matter, the power to regulate abortions does not extend to mandating them. Of course, mandated abortions would fly in the face of other constitutional provisions, but my point here is that in normal usage, "regulate" does not at all imply "mandate".

- jkodak

May 11, 2011 at 9:06am

Yes, Nusholtz, but I don't think he succeeds because his piece reads like a partisan policy argument. He does not show that the Commerce Clause argument is frivolous. He would have been better to focus on Clongress' taxing power, and to have pointed out that the "mandate" does not compel the purchase of insurance on pain of criminal penalties, but is in fact a tax incentive. Dhurtado

- NR143296

May 11, 2011 at 9:34am

cspencef, good point, they probably are.

- GSpinks

May 11, 2011 at 10:38am

I'm not sure pushing intricate constitutional arguments is the way to combat the possibility of the SC overturning health care reform. Trying to get these complex issues into the public sphere plays right into the hand of reactionaries who want to muddle the issues and have the law nullified. It's far more effective to point straight to the most absurd things these judges are saying. Vinson, for example, says broccoli is equivalent to health care. We should constantly stress such foolishness. It's basic public relations strategy.

- polcereal

May 11, 2011 at 12:33pm

liberalref: "It may all be up to Anthony Kennedy...." NR143296: "I think the deciding vote, if one is necessary, will be Scalia's." I side with NR. And I don't think it will be 5-4, because I think both Scalia and Kennedy will uphold the ACA. Not that it matters, but I have a relative who is a constitutional law professor at a top law school and he thinks the mandate is obviously constitutional.

- dsimon

May 11, 2011 at 10:24pm