The health care litigation comes to the Court . . . whether the Court wants it or not . . .

Last week, the Supreme Court announced its decision to grant certiorari on the various challenges to the health care law. Since then, the coverage has been relentless, and promises to continue (these include calls for recusal and televising of the oral argument, as well as the usual substantive legal commentary on the law itself and what the justices must do -- according to Randy Barnett, for example, “It is high time for the high court to strike down this unconstitutional, unworkable and unpopular law.”)

The basic legal argument is as follows, courtesy of Jamal Greene:

The administration has made a Necessary and Proper Clause argument in the Obamacare litigation, but commentators have been too fixated on vegetables to focus on it. The goal of the health insurance mandate is to prevent insurance companies from discriminating against people because of pre-existing health conditions. 

No one in these cases disputes that Congress has the power, again based on its authority over interstate commerce, to forbid this kind of discrimination. But doing no more than making it illegal for insurers to discriminate would not be effective, because making insurers cover high-risk individuals would require them to raise premiums so much that no one could afford to buy insurance. 

Congress could have responded to this challenge by raising everyone’s taxes and using the revenue to provide single-payer government health insurance. Instead, it chose to require that Americans purchase health insurance but gave them the freedom to choose their own private plans. Doing so expands the pool of insured people enough to enable insurance companies to cover high-risk individuals without breaking the bank. 

Anyone can argue that the individual mandate is a bad idea, but no one can argue that it isn’t rationally related, indeed intimately related, to Congress’s legitimate objectives.

Persuasive as this argument appears to be, I just don't think the case hinges on whether the justices will find it similarly persuasive.  This is not really a case about law, the limit-setting function of the justices and the rote application of precedent. This is not a case, in other words, about the power of Congress to force people to eat broccoli.  

Does anybody really believe that the justices will decide this case in accordance to their best reading of the commerce clause power? Or else, that established precedent offers clear answers to the questions presented?

In other words, does anybody truly believe that the Court is about to just call "balls and strikes" and do little else?

Taking Stock of the Health Care Mandate in Court

This is exactly what anybody who is seriously following the health care debate needed; a scorecard of the various decisions and their court of origin. An editorial in yesterday's Times offered precisely that:

This is very helpful, but woefully incomplete.  According to the piece, six judges have concluded that the health care mandate is constitutional and five have concluded otherwise.  The article also notes that the judicial conclusions are tinted by partisan overtones, with most judges appointed by Republican presidents ruling against the mandate and judges appointed by Democratic presidents upholding it, though two judges have "broke[n] away from the partisan pattern."

This barely begins to scratch the surface.  Making sense of what has happened, and what is likely to happen in the future, requires far more information.  We need to know who these judges are, and not just who nominated them.  Think of it this way: knowing that Justice Thomas was nominated by the first President Bush tells us very little information about the ideological zealotry of the justice and the lengths to which he and his wife go in furthering conservative causes.  To be clear, I do not intend this as a criticism of Justice Tomas -- though also to be clear, I side with Randy Kennedy over Guy on this one.  The point is that a reasonable portrait of Justice Thomas, or any judge for that matter, must include more information.

The piece is falls short in other ways as well. It frames the legal question as a debate over the power of Congress to require everyone to buy health insurance even if they do not want to.  From this question, the competing answers are straight forward. To those who uphold the law, the question is whether the relevant activities affect interstate commerce in any way.  They answer this question in the affirmative.    Conversely, judges who strike down the law argue that forcing people to buy insurance is not commerce in the constitutional sense and beyond the scope of congressional regulation.  According to the 11th Circuit, the mandate is “a wholly novel and potentially unbounded assertion of Congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them repurchase that insurance product every month for their entire lives.”

This is all very riveting. But is it something that the rule of law could possibly decide objectively? Put another way: how does a judge -- even a strict constructionist, assuming any such thing exists -- decide this question under the law? Does the constitutional text, or existing precedents, give us an answer? This is to ask: Does anybody buy Chief Justice Roberts' umpire analogy any loner, assuming they ever did?

This takes me to a related question: whatever happen to the many attacks on judicial activism?  If striking down the health care mandate is not judicial activism in its clearest sense, then the term is empty of any meaning.  In case you suspected as much, think about and compare the reactions to Citizens United. Your curiosity ought to be piqued, at the very least.  

Finally, I wonder how constitutional law professors teach this health care debate.  Do they teach it formalistically, and try to fit it within the post-1937 commerce clause tradition?  This is to ask, if Congress can stop people from buying small amounts of wheat for personal consumption, then surely they can force these same people to buy health insurance, no?  And if they teach these cases within that tradition, then how do they explain the recent turn?  If ideology and crass political preferences do not explain the shift, then what?