Thanks to Orin for his thoughtful post. I don’t want to offer a lengthy response, but simply clarify a few matters.
- I only singled out Orin in my post as evidence that the failure of most law professors to anticipate the Supreme Court’s sympathy for our arguments did not stem wholly from the ideological echo chamber in which most law professors reside. Even some conservative law professors shared the conventional wisdom. Orin and Charles Fried were probably the most prominent right-of-center law professors who publicly defended the constitutionality of the individual mandate, assuming one counts Fried as right-of-center.
- The ” symbolic federalism” concept to which Orin and Jack Balkin subscribe as a predictive matter is quite plausible and cannot, on the data, be lightly dismissed. Still, I think the fact that 4 justices were willing to do something far beyond the symbolic is a signal of something else going on. (The 4 liberal justices, of course, share the “anything goes that does not violate an express prohibition” gestalt of most law professors.) And “symbolic federalism” cannot be the basis of constitutional litigation or of constitutional law; it is merely a predictive device.
- I was not criticizing anyone’s predictive powers or extolling mine. I never predicted publicly that we would win the case. The Politico quoted me accurately. Indeed, here is how I ended one of my stock speeches on the ACA challenge: ”Yes, the smart money is always on the Court upholding an act of Congress. But given the hand Congress is now holding, I would not bet the farm.” Here is how I ended another: “I think there just may be five votes for the proposition that, because the people are still sovereign, economic mandates are simply not within the limited and enumerated powers of Congress.” Here’s another from my debate with Tribe and Fried at HLS: “Are there five votes on the Supreme Court to extend Congress’s power to include the imposition of economic mandates? Because Congress has never done anything like this before, the Court need strike down no other law ever enacted. This makes a challenge to the insurance mandate more likely to succeed. If the Act remains as unpopular as it is today, I think the Justices will be receptive to limiting the scope of Congress’s power under the Necessary and Proper Clause to go beyond the regulation of interstate commerce to regulate and prohibit intrastate activity.” These are a long way from confident predictions of victory.
- None of my constitutional analysis here or elsewhere was predicated on such a prediction. Instead it was formulated in light of the “this far and no farther” gestalt that made the “unprecedented” nature of the individual insurance mandate constitutionally salient (when others though that “unprecedented” was an irrelevant distraction).
- Orin may recall our exchanges here in which I sharply resisted the popular tendency among constitutional law professors to reduce constitutional law to a game of prognostication. I don’t want to revert to that debate again, but I think he may be slipping back into that tendency so that, once again, we are talking past each other.
- The principal target of the last part of my essay are those law professors who framed the issue of the lawsuit as a stark choice between upholding the mandate, or return to the dark days of Lochner (which was also their reaction to Lopez and Morrison.) I cite many such examples in my paper. My thesis is that they have missed the existence of an alternative gestalt that is far less radical, and therefore far more likely to be followed: ”this far and no farther (without a substantial justification that does not lead to a national police power in Congress).”
- I myself do not subscribe to the “this far and no farther...” gestalt as a normative matter. I favor a doctrine that would more closely resemble the “Lochner era” when it comes to holding Congress to its enumerated powers, and states to their police power, while preserving and expanding the Warren Court’s protecting civil rights and liberties. But I do not pretend that my own views were shared by a majority of the Rehnquist Court, or now by a majority of the Roberts Court.
- Still, the “this far, and no farther...” gestalt is preferable from my standpoint to the “anything goes...” gestalt held by most other law professors and by four of the current Justices.