Tribe on the Supremes: naive, or snarky?

Neither one. In predicting that the Court will overwhelmingly find the Access to Care Act constitutional, Tribe is actually arguing that even the conservative Justices must do so in to remain consistent with their own principles.

Steve Benen wonders whether Larry Tribe is being naive or snarky when Tribe predicts that the Supreme Court justices will follow reason and precedent in finding the Access to Care Act constitutional, rather than voting along party lines.

Neither answer, I think, is right. Tribe – who, let us recall, relies for his income and power on his capacity to get five Justices to see things his way – is instead using the indicative mood to hint at the imperative. In the guise of predicting what the actual Justices will do, he’s pointing out what an honest Justice would have to do. This is a familiar technique of moral education, known to every competent parent. “You’re not the kind of person who … ”

But that does not deprive Tribe’s words of their predictive power. If the case did split along party lines – indeed, if any Justice joined Injustice Thomas in voting to strike down the law – Tribe would not only be proven wrong, he would be in the position of insulting Scalia, Kennedy, Roberts, and Alito.

Tribe doesn’t want to do that. So he must be persuaded – and he is among the world’s leading experts on the topic – that the actual Justices will, in this case, act like his ideal Justices. Good to know.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

41 thoughts on “Tribe on the Supremes: naive, or snarky?”

  1. Tribe writes: “To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.”

    What he is trying to do is to shame the justices into following their own principles — to not pull another Bush v. Gore. He is not trying to predict what they will do; he is trying to influence what they do.

  2. This is a familiar technique of moral education, known to every competent parent. “You’re not the kind of person who … ”

    Isn’t there a Aesop fable for that?

  3. Harvard Law School has an annual student Revue. The year I saw it, it was a play about star-crossed law student lovers and at one point the male lead said, “we will go down in history as one of the great love affairs. Like, Romeo and Juliet. And, Abelard and Heloise. And, Larry Tribe and Larry Tribe” Brought down the house, it did.

  4. I don’t think any Modern Republican is afraid of scrambling their history. First, their version is more myth than knowledge, and therefore mutable. Second, they believe the current state is twisted by evil liberals, and needs the scramble back. the clawing back. History is wrong in their view, and needs not be heeded or respected.

  5. For Tribe to shame the Supreme Court into following post-1937 precedent shows his fear that Obamacare may be found unconstitutional and that the Court may go rogue.

  6. Mendel makes the same point that I made in the opening comment. Let me elaborate for non-lawyers. Unlike lower courts, the Supreme Court does not have to follow its own precedents; it can change them. But, as Tribe says, the current justices, except for Thomas, like the post-1937 precedents that have construed the Commerce Clause broadly enough to make the health insurance law constitutional. So why does Tribe fear that the right-wing justices will not follow precedents they like? Because, in this case, to do so would yield a result that they don’t like: the constitutionality of the health insurance law. The fear, then, is not that the right-wing justices will change the precedents for future cases, but that they will merely ignore the precedents for this case. That is what they did in Bush v. Gore, and to do that is to act like a politician, not like a judge. Judges often straddle the line between being judges and politicians, but Bush v. Gore was probably the most shockingly blatant crossing of it ever, and for them to strike down the health insurance law would be comparable.

  7. I’m not sure they so much “like” the post ’37 precedents, as that they think these bad precedents are too entrenched to overturn without massive disruption. But upholding the mandate actually requires extending those precedents into territory not yet reached, and they’ve no obligation to do that.

    Oh, and I think on the days Tribe doesn’t criticize Scalia and Thomas, they ask themselves what they did wrong. This essay will do nothing.

  8. Again, for non-lawyers, the disagreement that Brett and I have over whether the post-1937 precedents clearly make the health-insurance law constitutional (my position, and Tribe’s), or would have to be extended to do so (Brett’s position), is the main issue in the case.

  9. I’ve got to agree with Brett’s political analysis, if not his legal analysis. It’s too much of a three-bank shot to think that the Justices will care about what Tribe thinks, or Tribe will think that his reputation relies on his political statements.

    On the other hand, I do not think that the case will be 5-4 to uphold ACA. If Kennedy is the fifth Justice, Roberts will be the sixth. He cares too much about the legitimacy of the court to cast a dissent here, even if he would prefer to do the Republicans’ bidding. Scalia–who never cares about the legitimacy of the court, but on alternate Wednesdays believes in an expansive reading of the Commerce Clause–might be the seventh. Thomas–a Constitution-in-exile guy–would almost certainly be in dissent. Damned if I know what Alito will do. I could see 5-4 to reverse ACA, but I think that Kennedy is likely to vote to uphold it. And if he doesn’t, Scalia still might.

  10. I’m with Scrooge: if there’s a majority for finding the ACA constitutional, it will be a large one, because the rightwing judges jave little reason here to look irremediably biased while losing. Ifthey could get the result they want, sure. But otherwise, unless there’s some faux statement of principle to be made, why bother?

    I think, meanwhile, that Mark’s second paragraph simplifies Tribe’s gambit: for judges to be prejudiced against Tribe’s arguments in the future because of his implied potential insult here would be not merely to acknowledge but to assert the truth of the insult. So the rightwing justices are in a multiple bind. (And of course Tribe has a long history of implied insults to the justices, as anyone who has heard him lecture on certain cases can aver.)

  11. I asked Tribe which analysis was correct, and he said, “I take the Fifth”. So I’m pretty sure Mark is right. But since I don’t think that Scalia, Alito and Thomas are shameable, I’m going to have to put my hopes on Kennedy — and bet that Ebenezer Scrooge is also right, and the decision will be 6-3 to uphold the ACA.

  12. paul, O’Connor went out of her way to cast the fourth dissenting vote in Raich. There’s no telling with Supreme Court Justices.

  13. Theophylact, why do you think that Roberts is any better than Scalia, Thomas, and Alito?

    Exactly. Roberts would have boycotted the recent SOTU…
    Had it not been for bullets in Tuscon from an anti-government loon babbling Constitution nonsense on youtube.

    He is a small man.
    In a big robe.

  14. Brett:

    The Supreme Court has repeatedly been asked to overturn or limit Wickard; it has repeatedly declined to do so (other than to impose purely symbolic limits).

    I’d say that means they like the doctrine as is. Scalia’s statement in the Raich argument that he used to laugh at Wickard but it is a valid precedent is an example of this.

  15. What Tribe is doing, isn’t aimed at the Court, it is aimed at us. Tribe doesn’t rely on his ability to persuade the Court for power or income — that’s a misunderstanding of Tribe’s role in law and politics. His role is to legitimate the Court for liberals and progressives.

    Tribe probably sees the likely outcome to be 6-3 or better, per Ebenezer Scrooge’s analysis, and he’s gambling on that outcome to confirm his legitimation of the Court, and with that legitimation, the legitimacy and efficacy of his own life’s work, rationalizing the use of law to resolve political dispute.

    I would be surprised if the Court went rogue, but it certainly could. We have been building toward such a moment, for a long time. The stocking of the Federal Judiciary by the Federalist Society means that there would be little resistance and much reinforcement further down the hierarchy. Then, Tribe is effectively out of a job; he’s not even a useful idiot in such an environment. Law doesn’t matter, only power does, for as long as such a government lasts (and it could last a very long time, or collapse quickly — hard to say, which).

  16. Dilan,
    Scalia has also argued that precedent is relatively insignificant in Constitutional law.

    I don’t think that Scalia views himself as a political hack. He actually thinks that he is trying to interpret the law properly, whether he likes the results or not. There are a few cases–Raich and the flag-burning case come to mind–where his legal interpretation was inconsistent with his policy preferences. That doesn’t mean that you will often go wrong if you predict Scalia’s decisions on the basis of his political proclivities. But you will sometimes be surprised. (This might be true for most Justices, although I think it is less true for some than others. Kennedy, whom I generally don’t think much of, seems to be fairly far to the right of his judicial opinions. And Roberts is willing to subordinate his politics to the legitimacy of the Court, although he’s usually smart enough to reconcile the two. I suspect Ginsburg of being a bit to the left of her opinions.)

  17. Ebenezer:

    Where did I predict Scalia’s vote based on his politics? I simply said that he said specifically in the Raich argument that he used to laugh at Wickard but that it was a valid precedent, and then in his Raich opinion he applied it broadly.

    In other words, I think Scalia, like most others on the Court, doesn’t believe that the commerce clause should be rolled back to the pre-Wickard days.

  18. The optimism of the academic left is at once admirable and breathtaking. Here’s a little dose of reality. I expect when this case is finally heard, there will be some kind of split decision, wherein the law and its implementation gets tossed back to the states somehow. I think the Court will say that if health insurance were allowed to cross state lines, it would qualify as interstate commerce, but given McCarron Ferguson, and the Dems’ continued insistance on allowing states to tightly control what can be sold within their own boundaries, interstate commerce is not affected. The Court may signal the way for a constitutional national approach, by Congressional repeal of McCarron Ferguson and new legislation providing for a national charter for health carriers that would qualify health coverage as interstate commerce. This decision will be 5-4, as it will be one way or the other, even if I am wrong about the end result.

    Meanwhile, Florida and other states are finally realizing they can not enforce or implement PPACA as long as the most recent decision is allowed to stand. By failing to request a stay of that decision, pending appeal, the Administration continues to act in contempt of court(through its continuing implementation efforts) and arguably in violation of the oath to protect and defend the Constitution.

  19. Redwave72, what are you talking about? The McCarran-Ferguson Act was enacted in 1945, in response to a Supreme Court decision holding that insurance was interstate commerce. But the act did not, of course, change that; it merely expressed Congress’ wish not to regulate insurance, even though, after the Supreme Court decision, it could. But, even in 1945, the McCarran-Ferguson Act had exceptions under which federal law applied to insurance, and the ACA is, in effect, another exception. In short, McCarran-Ferguson has nothing to do with the ACA.

  20. You are right that Congress is free to repeal Mccarron Ferguson which was passed to nullify the Court’s decision in Southeastern Underwriters that overturned Paul v Virginia. That’s my point. Until they do, there is no interstate commerce in health insurance. Since there isn’t, it should not be subject to Federal regulation, unless you’re arguing that McCarron Ferguson is implicitly repealed by PPACA. But it wasn’t. Congress specifically refused to consider GOP amendments allowing health policies to be sold over state lines.

    If I were on the left side of the political spectrum, i would have made sure to repeal McCarron Ferguson before the Court gets the chance to decide that Southeastern was wrongly decided (or limit its scope to P&C coverage, which was the subject of the case). And then I would have obliterated state lines in the implementation of PPACA.

    Under the current circumstances, the possibility that the Court will rule the individual mandate to either be not interstate commerce, or as in the Florida decision, not commerce at all, is very much alive.

  21. Redwave72:

    1. I am spelling McCarran-Ferguson correctly; you are not.

    2. Since Southeastern Underwriters, insurance is interstate commerce and is subject to federal regulation. In McCarran-Ferguson, Congress decided to leave most insurance regulation to the states. Congress remains free to regulate insurance without repealing McCarran-Ferguson, except that, if it decides to regulate insurance in a way that McCarran-Ferguson has left to the states, then it is, to that extent, implicitly repealing McCarran-Ferguson.

    3. The Supreme Court will never overrule Southeastern Underwriters. Any lawyer who argued before it that insurance is not interstate commerce would be laughed out of court and sued for malpractice.

  22. I guess time will tell on that one. So far the score is 2-2. Of course, it’s easier to make the argument that not buying insurance is not commerce at all, which seems to be the basis for the two rulings that went our way.

    Interestingly, even in the Dodd Frank bill which created the OFR, it has no regulatory authority except that it may pre-empt states in international reinsurance rulemaking. So there is no Federal regulation of insurance, except where laws such as ERISA pre-empt state law (much to the frustration of liberals, usually).

    I think a good lawyer could make a good argument for why insurance is not interstate commerce. Surely, after Congress has delegated such authority back to the states for 66 years, never asserting otherwise, there must be some case to be made that it is estopped from suddenly declaring the business to be the subject of (now non-existent) interstate characteristics. I don’t know who would have the interest in making such an argument however. Much of the business would love to have the option of being chartered nationally rather than by the individual states.

  23. Redwave, there were some serious doubts about whether the states had any authority in international reinsurance rulemaking which could be preempted. U.S. Const., Art. 1, S 10, cl. 1. It’s not preemption of state power; it is a simple lack of state power.

    Apart from that, I don’t see how you can draw any Constitutional inferences from a Congressional decision to defer to the states on insurance. We don’t have a British Constitution, which operates largely as a set of traditions and tacit practices. We have a few extra-Constitutional practices upon which our system relies, such as the party system. But by and large, our Constitution is written down. You might want to look at it some day. I’m not sure that it always says what you think it says.

  24. I do not see how the “unconstitutionality” of the ACA is even a little bit plausible.

    1.) Federal regulation of insurance as interstate commerce is well-established, and Redwave72’s selective literalism notwithstanding, health insurance is largely carried out by national organizations, which simply adapt to the framework of state regulation. Lots of things, commercial and otherwise, are regulated by a hybrid Federal-State schemes; that’s always been a standard practice and part of the Constitution’s overall design, and the ACA’s exchanges, etc., just follow along in that tradition.

    2.) The mandate is, operationally, a use of the income tax, which is authorized by an Amendment. It is hard to argue that Congress doesn’t have the power to levy an income tax, and design that tax framework in any way it likes, when the Constitution has a specific provision authorizing an income tax.

    The claims of Redwave72 and Brett, locally, just seem to me, completely implausible and bogus. I don’t mean to be insulting, but there’s a distinction between merely disagreeing, and thinking that the other side has no legitimate argument or basis for their asserted beliefs. For me, the Right is not even getting close to the threshold of constitutional plausibility with this one. It’s the constitutional law equivalent of the birther controversy.

  25. No, actually I do think you have an argument. I think we both do, which is the difference between you and me. Seems to me though that if an insurance company and an agent can only do business in a state if they are licensed by that state, sell only the products approved by that state, must take the application and deliver the policy in that state, and use only the forms approved for use in that state, they are regulated…by the state! They may do business in more than one state, but none of that business is interstate. Whether that argument is a winning argument depends on who is on the bench and how well it’s argued, but it is an argument.

    Actually, ERISA will be your best legal precedent for arguing that insurance is interstate commerce. And it’s not a bad argument either.

    I don’t see how the fee for enforcing the mandate is an income tax, unless by that you mean the penalty will only apply above some income level. But it’s not a function of income, and the advocates for PPACA always claimed it wasn’t a tax, obviously for political reasons. Claiming now that it really is a tax ain’t going to make PPACA any more popular. I think you would have a better argument by changing the law so that a credit is applied for participating. But Republicans are unlikely to cooperate with any such effort until the constitutional question is resolved, and maybe not even then.

    I know it’s frustrating for you guys, but one of the main reasons for the unpopularity of this law is the way it was passed, the cynical arguments made for its scoring, and the cynical argument that what has been called a fee now needs to be called a tax. New entitlement programs historically achieve acceptance when there is a clear consensus for enactment. This was obviously never the case for PPACA.

    One thing Ebenezer is right about is that there was a constitutional question regarding whether states could operate vis a vis international players, and Dodd Frank’s guidance to the FIO (not OFR as above – sorry, I am supposed to be working) was an attempt to resolve that.

    Finally, I am flattered to be mentioned in the same sentence with Brett. I’ll try not to let it go to my head.

  26. Redwave72 at 12:58 p.m. writes, “there is no Federal regulation of insurance, except where laws such as ERISA pre-empt state law.” As I said, even the original McCarran-Ferguson Act contained exceptions, such as that Sherman Act applies to boycotts.

    The 12:58 comment also states, “Much of the business would love to have the option of being chartered nationally rather than by the individual states.” It was the insurance industry that lobbied Congress to enact the McCarran-Ferguson Act, because the insurance industry had state legislatures in their pockets and were afraid of federal regulation. I don’t know if that is still the case, but I strongly suspect that it is.

  27. @ Redwave72

    “Seems to me though that if an insurance company and an agent can only do business in a state if they are licensed by that state, sell only the products approved by that state, must take the application and deliver the policy in that state, and use only the forms approved for use in that state, they are regulated…by the state!”

    That structure is a consequence of how Congress has chosen to regulate interstate commerce in insurance. What you are arguing as evidence against Congress’ power to regulate interstate commerce, is, itself, an instance of, and product of, Congress’ regulation of interstate commerce.

    I understand the arguments against stretching commerce clause interpretations, to cover minutiae, or activities, which “naturally” seem to have a purely local nature. But, there’s nothing “naturally” local about insurance; its financial basis is portfolio diversification, after all. And, the scheme of State regulation, which you cite, only exists because that’s what Congress, pursuant to its authority and responsibility to regulate interstate commerce, has mandated that scheme.

  28. @Redwave72

    I’m not a big fan of the ACA, nor of its mandate. The whole thing seems unnecessarily complex, a complexity one must suspect has its origins in corrupt motives.

  29. “And, the scheme of State regulation, which you cite, only exists because that’s what Congress, pursuant to its authority and responsibility to regulate interstate commerce, has mandated that scheme.”

    That’s kind of the point: Congress has used it’s power under the interstate commerce clause, (Which historians agree was intended to encourage interstate commerce by preventing states from obstructing it.) to outlaw all health insurance it has any commerce clause basis for regulating. Leaving only the health insurance it has no valid claim to regulate.

    We must never forget, it’s the power to regulate interstate commerce. Forbid interstate commerce, and nothing is left that the power reaches.

  30. Henry, the insurance business(es) are pretty well divided on the subject of state vs federal regulation. Many in the life business would like to have the option to select a national charter, as banks do. On the P&C side, there is less sentiment for that.

    On the health side, there are so few real players, and most perform more administrative tasks than actual insuring these days. They have pointed out that one of the non-sensical provisions of PPACA is that MLR’s be achieved on a state by state basis rather than nationally. This is part of the syndrome that PPACA advocates want to have things both ways, whether the subject is taxes and fees, state vs federal, exemptions vs refusals to exempt, etc. There is no internal consistency and the whole thing seems to be gerryrigged to ultimately force the private players out, leaving only the publicly provided alternatives. Which is, of course, the game plan. The private players were bought off with the individual mandate, but they will be played for suckers in the end.

  31. Uh. Even though health insurance companies may be licensed on a state-by-state basis and mostly regulated ditto, they still engage pretty heavily in interstate commerce, no? Otherwise you wouldn’t have provider networks spanning multiple states, people with insurance in one state who got injured in another state would have to pay their hospital bills in full and get reimbursed later, and probably a whole raft of other counterfactuals.

  32. Even if you manage to squeeze by ERISA (and I don’t see how), HIPPA is just as big a barrier in terms of claiming that health insurance is not interstate commerce. Congress put all sorts of regulations of health insurance in there. Where did else did that power come from but the commerce clause? Or are you seriously suggesting that a significant high-profle, far-reaching law that is more than a decade old is actually unconstitutional and it just so happens that nobody noticed?

  33. No, I’d never claim nobody noticed…

    The basis for claiming that it’s not interstate commerce, is that I live in South Carolina, and I’m not buying my health insurance from Kentucky. I’m buying it in South Carolina. That pretty much by definition makes it “intra” state commerce.

  34. Brett:

    Actually, historians completely reject the claim made by wishful thinking libertarians that the commerce clause was intended only to encourage commerce. Marshall, who wrote Gibbons v. Ogden rejecting that argument, was himself a ratifier. And the commerce clause’s drafting committee’s instructions were to draft powers that would ensure that any problem of national scope bcould be regulated.

    The Constitution is NOT an economically libertarian document.

  35. And by the way, Brett, the health care law specifies procedures for health insurance to be sold across state lines under uniform regulations agreed upon by the states. The claim that it doesn’t is a right wing lie.

    What IS prohibited is allowing an insurer to incorporate in Delaware and sell to the whole country under that state’s lax regulations.

  36. “the claim made by wishful thinking libertarians that the commerce clause was intended only to encourage commerce.”

    Huh, must be a glitch in the blog software, that added that “only” to my comment. I suppose it’s not showing up when I look at it, because I’ve got the original version in my cache…

    You know, I suppose there might be some theoretical situations under which I, a resident of SC, could buy health insurance from a company in Maine. And, in that case, we’d be engaged in interstate commerce. Meanwhile, in the real world, 99 44/100ths percent of health insurance is sold in state, and thus is not interstate commerce. This because federal law very strongly discourages interstate commerce in health insurance. There, like that version better?

    You’re never going to get me to admit the interstate commerce clause legitimately entitles the federal government to regulate intra-state commerce. The Supreme court may have been persuaded to white out most of that clause’s language, but I’m not going to pretend they were right to do so.

  37. @ Brett Bellmore:

    The basis for claiming that it’s not interstate commerce, is that I live in South Carolina, and I’m not buying my health insurance from Kentucky. I’m buying it in South Carolina. That pretty much by definition makes it “intra” state commerce.

    But your policy can be used to pay for health services that you receive outside of South Carolina, right?

    My health plan pays for healthcare that I receive anywhere, and I suspect most policies can be used to pay for health care outside of the state in which the policy is issued. I know my “in-network” coverage includes physicians all around the country, so if I get sick while traveling, I can still choose doctors and hospitals that will cost me less if I go to them rather than to others. How does my Texas-issued policy not affect interstate commerce in that circumstance?

    Indeed, I see that, although my policy was issued in Texas, the address to which I send my claims to be processed is in Atlanta, Georgia. Doesn’t that affect interstate commerce?

    My premiums go to a publicly traded company that issues shares which investors all around the country (indeed, all around the world) buy. The policies that affect that company, and other such companies, affects the dividends that go to those shareholders. Is interstate commerce not affected there?

    If policies are enacted that encourage or discourage people from getting private insurance, that can increase or decrease participation in programs (Medicaid among many) to which my federal tax dollars go. How does that not affect interstate commerce?

    And so on, and so on. I simply can’t see how the argument that national health insurance companies don’t affect interstate commerce, simply because those national insurance companies have to adhere to state insurance regulations, can be made in good faith.

  38. I’m not arguing that national health insurance companies don’t effect interstate commerce. I’m claiming the word ‘effect’ doesn’t appear in the commerce clause, which authorizes Congress to regulate a particular subset of commerce, not everything that might hypothetically effect it.

    I know that’s not how the Court has ruled since the 1930’s. Just because the judiciary has been suborned doesn’t mean I have to pretend they’re being honest about what the clause means.

  39. Brett, health insurance not only covers out of state losses, but also purchases drugs in interstate commerce and from out of state corporations, is often sold by companies incorporated out of state, and is often sold to multistate corporate employers. Further, the health care law creates procedures to create interstate sales of insurance.

    I agree with you (and Chief Justice Marshall) that purely local activities should not be considered commerce among the several states. I don’t agree with Wickard and Raich. But health insurance IS interstate commerce, in all sorts of ways. And you don’t even need the effects test for this. The framers intended that gigantic multi-state commercial markets could be regulated, and this is one.

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