JONATHAN COHN FEBRUARY 8, 2011
Laurence Tribe of Harvard Law School has an op-ed in the New York Times that carries the headline, “On Health Care, Justice Will Prevail.” It’s true to the content of the article, which predicts that the Affordable Care Act will survive constitutional challenges. But I’m not sure Tribe fully believes that. In fact, the whole article reads to me like a warning to the justices of the Supreme Court—one, I certainly hope, they will heed.
The case against the Act’s individual mandate, Tribe suggests, is incredibly weak. The only way to reject the law would be to reject decades of precedents establishing broad federal powers in order to regulate commerce and do whatever is “necessary and proper” to reach that goal. (Tribe also has a new twist on that argument, which I’ll blog about separately.) Justices Kennedy and Scalia would have to disavow some of their own previous writings—and that, Tribe says, is hard to fathom.
To imagine Justice Scalia would abandon that fundamental understanding … because he was appointed by a Republican president is to insult both his intellect and his integrity. Justice Anthony Kennedy, whom many unfairly characterize as the “swing vote,” deserves better as well.
I would like to think that’s true and Tribe, who is among the most distinguished constitutional scholars of his generation, surely knows the law and the justices better than I do. But I also know that Tribe, who worked on Bush v. Gore, remembers that Kennedy and Scalia have betrayed their better instincts before. That’s why I assume the whole point of this op-ed was to telegraph a message: A decision to strike down the Affordable Care Act would seem as nakedly partisan as the decision that put George W. Bush in the White House.