What expert consensus is good for
By Dylan Matthews
George Mason law professor Ilya Somin protests that there isn't an expert consensus on whether the individual mandate is constitutional:
Let me reiterate what is already known to most experts, but may not be clear to some in the media and the general public: There is not and never has been an expert consensus on this issue. Rather, this is one of a number of disputed questions in constitutional law that tends to split experts along ideological lines. Nearly all left of center experts believe the mandate is constitutional, while the overwhelming majority of conservative and libertarian scholars believe the opposite. Thus, neither side can “win” the debate simply by citing supposedly monolithic expert authority. There is no shortcut around the necessity of carefully considering the arguments on both sides. If we are going to have an intellectually serious discussion of this issue, that is what we will have to do. Citing the consensus view of academics or other experts isn’t going to cut it, for the simple reason that no such consensus exists.
Of course, citing the existence of a consensus view doesn't win the argument, but that would be true even if there were an expert consensus. Ultimately, the academic discussion of this doesn't matter unless it's considered by people who actually hold the power to undermine the individual mandate, most notably Anthony Kennedy. In practice, I suspect Kennedy will pay some attention to the debate, but he's certainly not obligated. Kennedy could endorse Mark Tushnet's view that Supreme Court justices should rule in ways that "advance the cause of socialism" and there's nothing much anyone could do about it.
Given relevant precedents on federal regulatory power, especially 2005's Gonzales v. Raich, where the court ruled that the federal government could regulate the state-level sale of medicinal marijuana, it seems unlikely that the court will take any action against the individual mandate. All the court's liberals, along with Kennedy and Antonin Scalia, ruled in favor of the federal government in that case, and two of the dissenters, William Rehnquist and Sandra Day O'Connor, have since been replaced, and John Roberts and Samuel Alito seem to take a more moderate view of the federal government's right to regulate interstate commerce. At the very least, Scalia and Kennedy are likely to side with the court's four liberals should an individual mandate case come up, meaning the mandate should survive, easily.
Ultimately, that's all that matters. Academic discussions of constitutionality are interesting, but in practice the word "unconstitutional" means whatever the court, and frankly Kennedy, wants it to mean. That's the system we have, and it gives limited purchase of "consensus views" of those not wielding any power.
-- Dylan Matthews is a student at Harvard and a researcher at The Washington Post.
Washington Post editor
April 2, 2010; 10:57 AM ET
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