When the Left Persuades Itself


I read with some amusement David Dow’s Daily Beast piece arguing that Congress should impeach the Supreme Court if they vote to overturn Obamacare. While Jonah and others have commented ably on Dow’s article, as a lawyer for a firm representing 119 members of Congress in the Obamacare cases and which has its own case against Obamacare pending before the Supreme Court now, I was intrigued by Dow’s notion that our arguments were so frivolous that accepting them merited the most severe punitive sanctions possible. Perhaps he knew something I didn’t know. Perhaps he’d read something I hadn’t read.

Indeed he had. Dow declared, “The vacuity of the arguments against the health-care law has been well covered (see especially Akhil Amar’s analysis in Slate).” I knew of Akhil Amar, a professor of law and political science at Yale, but I hadn’t read anything he’d published about Obamacare. If his argument “especially” covered the “vacuity” of our case, I had to read it.

I clicked through, I read, and I was profoundly underwhelmed. This was not an article designed to persuade anyone skeptical of the constitutionality of Obamacare. Instead, it was a fantasy piece — a simulated Q and A where Professor Amar gives the answers he wishes the solicitor general gave in response to tough questions from the Supreme Court (buying into the false narrative that the solicitor general somehow dropped the ball at oral argument). It begins:

Q: What are the limits of congressional power?

A: The limits are those found in the Constitution itself, of course—its text, its history, and its structure as glossed by subsequent practice and precedent. The Constitution expressly gives Congress the power to “Regulate commerce . . . among the several states.” Here, we have a genuine regulation—both the micro-mandate/penalty/tax and the larger regulatory regime of which it is an integral part. We have commerce under any reading of the word. Insurance is a purely commercial or economic question about who pays whom. And we have an underlying problem that is truly “among the several states.” The problem of health care creates spillover costs that cross state lines, problems that result in some states in effect imposing costs on other states or bearing costs that properly belong to other states.

That’s a non-response. To carry on with Amar’s model, allow me to respond with a poor impression of a judicial reply to Professor Amir:

The Court: Thank you, Professor, for ably quoting the Constitution back to us. The question — as you no doubt know — is whether the power to regulate interstate commerce includes the power to actually mandate consumer purchases — to mandate further and additional commerce. We do not doubt that the health care market is truly an interstate market, but I don’t think you’ll see anywhere in our prior precedent the principle that congressional power to regulate interstate commerce is unlimited. I asked you for a limit of the congressional power to regulate what no one denies is interstate commerce, and you have not given me a limit. The Solicitor General at least tried.

Here’s Amar’s allegedly decisive response to the now-famous broccoli hypothetical:

Q: What about a federal mandate to buy broccoli?

A: Thank you for that softball, Your Honor. There is no real, substantial, honest-to-goodness interstate spillover/externality problem with broccoli that I see at the moment. [Pause] Even if nothing I have said yet persuades Your Honors, my second commerce clause claim is that millions of Americans suffer from preexisting medical conditions. If they get a better job offer out of state, they should take it so that they can contribute more to their families and to the general economy. But they will not be able to do so if the out-of-state employer discriminates against preexisting conditions. This discrimination creates a huge lock-in of labor. It prohibits interstate mobility—the free interstate flow of services. The core purpose of the interstate commerce clause is to allow Congress to remove interstate barriers—legal, physical, economic—such as this.

To which the Court could respond:

Court: I see from your response that “softball” might not mean what you think it means. Are you honestly telling me that there’s no spillover/externality problem with food consumption in this country? I don’t have the numbers in front of me at the moment, but I believe the federal government is directly paying — through food stamps — for the groceries of more than forty million Americans. Moreover, the market for foodstuffs is not only “interstate,” the externalities of poor food choices are profound. Food is a more basic human need than health care. Indeed, lucky individuals can go years without needing any health care while no one can go more than a few days without food. Obesity is costing hundreds of billions of dollars, shortening life spans, and is even shrinking the pool of young people who meet the physical requirements for military service. So all the ingredients are there: Interstate commerce, a massive existing federal role in the market, and negative economic and even national security externalities.

At the risk of boring readers even further, I can’t resist one more exchange:

Q: But nothing you’ve said so far addresses the unprecedented issues raised by a federal mandate that a person buy a private product.

A: Several answers, Your Honor. First, this law is hardly unprecedented. The Militia Act of 1792 had a similar mandate, obliging Founding-era Americans to privately procure muskets, ammo, pouches, and so on. George Washington signed onto that law. And no one at the time said that mandates such as this were somehow intrinsically improper regulatory tools.

And here’s a potential court response:

Court: Professor, I believe you’re referring to the Second Militia Act of 1792 that essentially drafted every able-bodied white male between the ages of 18 and 45 into the militia and then required members of the militia to obtain necessary arms and munitions. Isn’t that law (a) not universal, (b) not justified by the need to regulate interstate commerce, and (c) on its face empowered by constitutional language granting the federal government the power to provide for national defense?  How does that provide legal precedent for statutory language that, by contrast, is universal, allegedly justified by a wholly separate part of the constitution, and not empowered by any specifically applicable constitutional language?

I won’t go through Professor Amar’s entire piece — nor do I mean to imply that he doesn’t make some effective arguments — but many on the left are still unwilling to confront the uncomfortable reality they experienced last week: The arguments against Obamacare are strong, well-founded in the text and history of the Constitution, and supported by case law.

Normally, when one claims that legal arguments are “vacuous,” the person making the claim is supported by binding, on-point court precedent or by clearly applicable statutory or constitutional language. There is no such applicable precedent in this case. If Obama wins the day, it will ultimately be because a majority of the court extended precedent to cover Obamacare. If it loses, it will likely be because existing precedent doesn’t cover Obamacare, and the majority is unwilling to extend federal power any further than it now extends.

Since the Obamacare cases were filed, the Left has been telling itself that it had nothing to fear, that conservatives would soon face legal humiliation. Living in their academic bubbles — where their arguments rarely face rigorous and scholarly conservative challenge (bright conservative law students aside) — leftist legal scholars felt a false sense of security.

We don’t know how the case will be decided. The Left may ultimately win, but the oral arguments clearly indicated that the Court is giving serious thought to striking down the entire act. And if Professor Amar’s article proves anything, it proves that the argument for Obamacare is hardly airtight, and the Left now has good reason to be concerned.

David French is a Senior Counsel for the ACLJ. A Kentucky native, David is a 1994 graduate (cum laude) of Harvard Law School in Cambridge, Massachusetts and a 1991 graduate (summa cum laude, valedictorian) of Lipscomb University in Nashville, Tennessee. David has been a commercial litigation partner for a large law firm, taught at Cornell Law School, and served as president of the Foundation for Individual Rights in Education (FIRE). He is the author of multiple books, including A Season for Justice: Defending the Rights of the Christian Home, Church, and School and the upcoming Home and Away: The Story of Family in a Time of War.

Used with the permission of the American Center for Law and Justice.