Double Teamed

The House is planning to block health care funds, but, regardless of how it plays politically, it seems like an empty effort with the Senate and White House opposed to the plan.  So the real action, for now, is what the Supreme Court will say when they decide on Obamacare's constitutionality.

This won't be for a while, but things are already heating up.  Two top legal profs, Laurence Tribe in The New York Times and Akhil Reed Amar in the LA Times, have put out editorials stating the Supreme Court has to find the law constitutional.  Some of their arguments I find weak, but hey, that's how it goes.  People disagree.  What surprises me is the arrogance with which they state their claims.

Reed treats Judge Vinson's opinion declaring Obamacare unconstitutional as if it were one long, crude error.  Here's how he begins:

Earlier this week, after grading student papers from my Yale Law School class on constitutional law, I began reading federal District Judge Roger Vinson's recent opinion declaring "Obamacare" unconstitutional. One thing was immediately clear: My students understand the Constitution better than the judge.

I strive to be apolitical in evaluating students and judges alike. Over the years, many of my favorite students have been proud conservatives, while others have been flaming liberals. The Constitution belongs to neither party.

As every first-year law student learns, lower court judges must heed Supreme Court precedents.

I like the first clause--just in case you didn't know who he is.

Next thing, he's noting his students know the law better, that first-year students get it while Judge Vinson doesn't, and your mother wears army boots.  If Reed has an argument, perhaps he should make it without a preface of schoolyard taunts.

He notes he strives to be apolitical.  Based on what I read below, he fails.  He also notes the Constitution belongs to neither party.  Correct, but a non sequitur.

I'm not going into the content of his argument, but please read it and see if you feel it's as open and shut as he believes.  Maybe he has a good case, maybe Congress (as his logic dictates) has the power to send every citizen a yearly budget stating how all money must be spent.  But isn't it at least possible this case presents some novel issues that are open to differing opinions?

He ends worse than he begins:

Obamacare's opponents are free to vote for politicians who will repeal it. They should not use seats on lower courts to distort the Constitution, disregard applicable precedents and disrespect a duly elected Congress, which gave Americans in early 2010 exactly what the winning party platform promised in November 2008.

In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America's two major political parties was unconstitutional. The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.

History has not been kind to that judge. Roger Vinson, meet Roger Taney.

The first paragraph claims Congress gave the people what they promised.  First, who cares?  That's not the issue here.  Second, this is close to a lie through implication--that Congress was doing the will of the people and that should be respected--and an unnecessary one for Reed's argument, so I don't understand why he says it.  People voted for the Dems in 2008 for a lot of reasons, but rarely for the vague boilerplate in their platform about health care.  If Reed really wanted to explain what occurred, he would note the law was forced through in a party-line vote against the will of the public, who responded by kicking out large portions of the party in charge, and who oppose the law to this day.  But if it's legal, it's legal, if it's not, it's not.

Then Reed descends about as low as he can go and compares Vinson's opinion to Dred Scott.  Whether Reed has a solid hold on Dred Scott I don't know, but it's irrelevant.  The case is the most reviled in American jurisprudence, and all sides shout imprecations, explaining how whatever it is they don't like at present is the same thing that led to Chief Justice Taney's opinion.

These invocations of Dred Scott are, in every case, shameful.  But, if possible, it's extra shameful to compare a case that supported slavery to a case that says individuals are free to make their own choices.

Perhaps because Tribe knows everyone reads the Times, including the Supreme Court, he goes in another direction.  Rather than attack the lower court, he butters up the high court.  He doesn't even entertain the notion the Supreme Court would be so foolish as to find any part of Obamacare unconstitutional.  They're too smart, rational and fair to every do anything so uncool.

Some samples:

...the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

[....] 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.

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well.

[....] The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it...

[....] There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty...

[....] Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.

He's sending out a message to the Court--especially to Justice Kennedy--letting them know what he expects of them. No one can say how they'll vote, but if Tribe can just move one of Alito, Kennedy, Roberts, Scalia or Thomas close enough to the center that the Justice writes one of those worthless "on the one hand..." opinions, mission accomplished.

I don't think I'm reading too much into these pieces to say that Reed and Tribe are nervous.  They know it's actually possible the lower courts will be upheld.  So they don't just make legal arguments, they try to set up the grounds for what is an acceptable argument to begin with.  Combining the two, I get something like this:

We understand the Constitution better than you and we, impartial we, declare there is no serious argument against Obamacare.  Any judge who finds otherwise does so through pure partisanship.  And only one side can be partisan in this case.  If you vote against our beliefs, you're an incompetent boob who will deserve, and most assuredly get, scathing contempt for the rest of your career and beyond.  If you vote our way, you'll be rewarded with loving words in the top papers and periodicals that all your friends read.  Resistance is futile.