Health Care on Appeal: Laurence Tribe Works the Refs (by Assuming That They Are Refs)

A blog about politics, sports, media, stuff
Feb. 8 2011 10:04 PM

Health Care on Appeal: Laurence Tribe Works the Refs (by Assuming That They Are Refs)

Constitutional law professor Laurence Tribe took to the New York Times op-ed page today to argue—or, ostensibly, explain—that the Obama administration's health-care law is (translation:

ought to be


by the Supreme Court:

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law's constitutionality is open and shut.

No need for an op-ed, then, right? But Tribe's real point is to defend the existence of "constitutional law" at all. "[P]redictions of a partisan 5-4 split," he writes, "rest on a misunderstanding of the court and the Constitution."


is a mistake: the Supreme Court is not a political body, according to Tribe, despite the "impression" left by Bush v. Gore. That is, the op-ed is an attempt to lobby the court to back away from the unfortunate, "distressing" position of being misunderstood:

Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed "necessary and proper" to effectively enforce broader federal regulation of nationwide drug markets. 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.

And since the health-care law falls easily within the scope of existing commerce-clause precedent, it would be a failure of intellect and integrity for Scalia to vote against it. Even John Roberts and Samuel Alito, as Tribe construes the court, should be expected to defy the "crude prediction that justices will vote based on politics rather than principle."

Only Clarence Thomas is out of reach, as Tribe sees it—and there, too, Thomas' expected vote would testify to his integrity:

[H]e alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.

The whole essay is a quixotic effort not to be quixotic—to presume, for the sake of argument, that the Supreme Court still has an image and a purpose to protect, rather than a legislative agenda to advance. "There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty," Tribe concludes. Unless, he means, they don't.

Tom Scocca is the managing editor of Deadspin and the author of Beijing Welcomes You: Unveiling the Capital City of the Future.



The Irritating Confidante

John Dickerson on Ben Bradlee’s fascinating relationship with John F. Kennedy.

My Father Invented Social Networking at a Girls’ Reform School in the 1930s

Renée Zellweger’s New Face Is Too Real

Sleater-Kinney Was Once America’s Best Rock Band

Can it be again?

The All The President’s Men Scene That Captured Ben Bradlee

Medical Examiner

Is It Better to Be a Hero Like Batman?

Or an altruist like Bruce Wayne?


Driving in Circles

The autonomous Google car may never actually happen.

The World’s Human Rights Violators Are Signatories on the World’s Human Rights Treaties

How Punctual Are Germans?

  News & Politics
Oct. 22 2014 12:44 AM We Need More Ben Bradlees His relationship with John F. Kennedy shows what’s missing from today’s Washington journalism.
Oct. 21 2014 5:57 PM Soda and Fries Have Lost Their Charm for Both Consumers and Investors
The Vault
Oct. 21 2014 2:23 PM A Data-Packed Map of American Immigration in 1903
  Double X
The XX Factor
Oct. 21 2014 3:03 PM Renée Zellweger’s New Face Is Too Real
  Slate Plus
Behind the Scenes
Oct. 21 2014 1:02 PM Where Are Slate Plus Members From? This Weird Cartogram Explains. A weird-looking cartogram of Slate Plus memberships by state.
Brow Beat
Oct. 21 2014 9:42 PM The All The President’s Men Scene That Perfectly Captured Ben Bradlee’s Genius
Oct. 21 2014 11:44 PM Driving in Circles The autonomous Google car may never actually happen.
  Health & Science
Climate Desk
Oct. 21 2014 11:53 AM Taking Research for Granted Texas Republican Lamar Smith continues his crusade against independence in science.
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.