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Lithwick’s Even Feebler Defense of Obamacare



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Dahlia Lithwick’s latest Slate essay on the Obamacare case offers some interesting speculation about the extralegal factors that she thinks might influence “the Court’s five conservatives.” (I still marvel at how Justice Kennedy can be mischaracterized as a conservative.) We can’t, of course, rule out the possibility that extralegal factors might improperly influence any justice’s decisionmaking in any case. But what’s particularly remarkable about Lithwick’s speculation is that she asserts as an “uncontroversial” starting point the proposition that the Obamacare legislation is incontestably constitutional. Here is the entirety of her argument (bracketed numbers added):

[1] Linda Greenhouse makes the first point [that the law is constitutional] more eloquently than I can. [2] That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it. [3] Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, “Are you serious?”

On sentence 1: As I’ve pointed out, “There’s just no there there” to Greenhouse’s supposed argument. So while it may well be true that what James Taranto aptly labels Greenhouse’s “shallow, disingenuous and silly” post is “more eloquent” than what Lithwick can muster, that amounts to nothing more than a damning self-assessment.

On sentence 2: What a bizarre assertion. The “best illustrat[ion]”of Obamacare’s constitutionality is that (“until recently”) “the Obama administration expended almost no energy defending it”??? Pardon my traditional linear thinking, but I would have thought that the best illustration of a legal proposition would be some sort of legal argument, not some inference somehow extrapolated from the supposed “energy” a party devotes to defending a position.

I’ll also note that Lithwick’s factual assertion (insofar as it has any ascertainable meaning) is highly dubious, if not flat-out wrong. The documentary record (developed in connection with the case for Justice Kagan’s recusal from the Obamacare litigation) clearly shows that DOJ senior officials were involved from the outset—indeed, even before the passage of Obamacare—in preparing for litigation. Acting solicitor general Neal Katyal even presented the oral argument for the government in the cases in the Fourth Circuit, the Sixth Circuit and the Eleventh Circuit. I don’t understand what higher level of “energy” Lithwick imagines the Obama administration could have expended. (Well, I suppose that President Obama could have been making the case for the individual mandate day in and day out, but his failure to do so is surely explained by the massive unpopularity of the legislation.)

On sentence 3: Lithwick parrots Greenhouse’s amazing invocation of Pelosi, so I’ll just repeat my response:

Ah, yes—Nancy Pelosi, constitutional scholar. The idea that Nancy “we have to pass the bill so that you can find out what is in it” Pelosi might be imagined to have given an iota of thought to the constitutional limits on Congress’s Commerce Clause authority is laughable. Greenhouse evidently doesn’t recognize that Pelosi’s “Are you serious?” reply is “famous” precisely because most people understand it to show her utter disregard for any limits on congressional authority.

Later in her essay, Lithwick asserts that “three of the most influential and well respected conservative jurists in the land have ruled that of course the law is constitutional, even if they hate it as a policy matter.” I gather that Lithwick is referring to the Sixth Circuit opinion of Judge Jeffrey Sutton and to the D.C. Circuit opinions of Judge Laurence Silberman and Judge Brett Kavanaugh.

In fact, only the first two reached the conclusion that the mandate is constitutional, and I don’t think that the opinion of either can fairly be reduced to the proposition that “of course the law is constitutional.” Judge Sutton mildly opined that “in [his] opinion, the government has the better of the arguments.” As a lower-court judge, he regarded himself as bound to “respect the language and direction” of the Supreme Court’s expansive Commerce Clause precedents, even as he expressly recognized, contrary to Lithwick, that “the Supreme Court has considerable discretion” to determine that those precedents don’t in fact extend so broadly. Indeed, Sutton declared that the Court “either should stop saying that a meaningful limit on Congress’s commerce powers exists or prove that it is so.”

For Judge Silberman, the placement of the burden of proof on those challenging the law was important if not decisive:

We are obliged—and this might well be our most important consideration—to presume that acts of Congress are constitutional. Appellants have not made a clear showing to the contrary.

Kavanaugh would have ruled on jurisdictional grounds, and he labeled the Commerce Clause issue “extremely difficult and rife with significant and potentially unforeseen implications for the Nation and the Judiciary.”

I’ll also note that Lithwick, like Greenhouse, conveniently ignores the fact that Judge Frank Hull, one of the two Eleventh Circuit judges to vote to strike down the individual mandate, is a Clinton appointee. That would seem to complicate the outrageous proposition that only political animus against Obama—a desire to “deprive the Obama [sic] of one of his signature accomplishments”—could explain a vote against the constitutionality of the individual mandate.



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