Linda Greenhouse and Dahlia Lithwick have attempted to resuscitate the claim that the individual mandate is so obviously constitutional that only ignorance or political bias can lead anyone to believe otherwise.
Such claims were perhaps understandable back when this litigation began. But even then, there was no expert consensus on the constitutionality of the mandate. They are even more dubious now, after several lower court decisions have ruled against the mandate. Even the decisions upholding it all acknowledge that the case raises novel issues. And all of them spend many pages explaining their reasoning, which is not what you would normally see in an easy open and shut case.
It’s also worth noting that many leading constitutional federalism scholars believe that the law is unconstitutional, including Gary Lawson (one of the top experts on the Necessary and Proper Clause), Steve Calabresi (who is one of the legal scholars who signed on to the amicus brief I wrote for the Washington Legal Foundation), Richard Epstein, and, of course, co-blogger Randy Barnett. If the case were an easy one, we would not have such a deep division among legal experts and jurists.
You can say that the experts who think the mandate is unconstitutional are just politically biased. But of course the same charge can be levied at Greenhouse, Lithwick and the overwhelming majority of commentators on the other side. Greenhouse makes much of the fact that two conservative judges have voted to uphold the mandate. But a Democratic-appointed judge – Frank Hull of the 11th Circuit – has voted to strike it down. These exceptions do not change the fact that the overwhelming majority of conservative and libertarian experts believe that the law is unconstitutional, while the overwhelming majority of liberal ones believe the opposite. Such ideological polarization among experts is actually yet another sign that the issue is not an easy one. If it were, we would be more likely to see an expert consensus developing.
Greenhouse and Lithwick’s argument is not helped by the various factual and analytical errors they make in their pieces. Ed Whelan catalogues them here and here. Perhaps the most important is Greenhouse’s fallacious assertion (seemingly endorsed by Lithwick) that the plaintiffs’ argument is “Basically just one word...: “unprecedented.” In reality, the plaintiffs have never argued that the unprecedented nature of the mandate by itself proves that it is unconstitutional. Rather, their brief repeatedly emphasizes that the main reason to strike down the mandate is that there is no logical way to uphold it without giving Congress virtually unlimited authority to impose other mandates. So far, the federal government has failed to come up with any limiting principle that proves otherwise, as I explain in some detail in this article. If the federal government loses this case, it will be because of that failure, not because only ignorant or politically biased people can believe that law is unconstitutional. As David Bernstein puts it, the Court majority is not going to buy the notion of a “Congress-can-do-whatever-it-wants power.”
Greenhouse also claims that Gonzales v. Raich and United States v. Comstock clearly dictate the outcome of the mandate case. She does not even consider ways in which these cases differ from the mandate issue, which I described here and here. As I explained in the WLF amicus brief, some elements of Comstock actually help the anti-mandate plaintiffs. Ironically, Greenhouse previously cited my article explaining why Comstock does not dictate the outcome of the mandate case as evidence that even “critics of the newly enacted health care law” believe that Comstock requires the mandate to be upheld.
I do not mean to suggest that there isn’t a substantial case in favor of the constitutionality of the mandate. Some of the law’s defenders have made serious and insightful arguments on its behalf (e.g. Brian Galle, Neil Siegel, and my former colleague Max Stearns). The Supreme Court’s precedent on the relevant issues is complex and unclear enough that both sides can make a good case for their position. In my view, the anti-mandate side does have an overwhelming advantage under the text and original meaning of the Constitution. But textualism and originalism are not, and probably cannot be, the only interpretive methodologies used by the courts.
Be that as it may, public debate over this important issue is not improved by claims that the case for the mandate is so obviously right that no informed person can reasonably disagree with it.
UPDATE: I have changed my original description of 11th Circuit Judge Frank Hull as “liberal” to “Democratic-appointed,” because I recognize that there is disagreement over the nature of her judicial philosophy. I don’t think that this significantly affects my underlying point in that part of the post, which is that this case has split expert opinion largely along ideological lines.