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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.

By Washington Post editor  |  April 2, 2010; 10:57 AM ET
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Having taken three classes from Mark Tushnet during my recent trip through law school, I can confirm wholeheartedly that he no longer thinks that way. I am no '60s radical and I was usually arguing with him from the left.

Posted by: dal20402 | April 2, 2010 11:10 AM | Report abuse

The great thing about the Supreme court is although it can follow precedent, it doesn't have to.

Things change.

The public is tired of the technical trickery, especially after the healthcare bill debacle.

The constitution is what....about 17 pages or so and it is the first and foremost law of the land. In contrast the healthcare bill was about 2,800 pages and then had to have a 170 "fix" bill immediately after it.

Bottom line don't need a weatherman to know which way the wind blows and you don't need a Philadelphia lawyer to understand the constitutional role of the federal government.

Expecting the public at large to just roll over accept the incremental encroachement of federal power might not be the smartest bet.

Posted by: WrongfulDeath | April 2, 2010 11:11 AM | Report abuse

Gonzales v. Raich was broader than that. Raich was neither buying nor selling medical marijuana, she was cultivating it herself for her own use. The Court held that banning that conduct was within Congress's power under the Commerce Clause.

Posted by: Atreju | April 2, 2010 11:25 AM | Report abuse

If the current construction of the mandate is ruled unconstitutional (highly unlikely), it can always be restructured as a refundable tax credit. Everyone pays an "insurance tax" and that amount is rebated if they have insurance, just like the home mortgage deduction. No constitutional issue here...

Posted by: srw3 | April 2, 2010 11:33 AM | Report abuse

"The constitution is what....about 17 pages or so and it is the first and foremost law of the land."

You're totally right. Those 17 pages are so clear we've only had 200+ years of legal challenges regarding its crystal clear meaning.

Maybe they should have just gone with the 2000 page Constitution and saved us the legal fees.

Posted by: y2josh_us | April 2, 2010 11:36 AM | Report abuse

They mean what the judges say they mean only if the judges are in good faith. They are not free to "make their own reality" in the misguided formulation of certain recent neo-con theorists. The consensus must also look behind to the consensus of history about the meaning of what past judges have said and likewise ahead to an prediction of what a consensus of future judges will say.

Posted by: harold3 | April 2, 2010 12:04 PM | Report abuse

You're assuming here that previous cases have been decided according to some carefully nuanced balance of principles held by each justice rather than the outcome they wanted to achieve. And that this case will be decided the same way. There's not a lot in the current court's history to support that view.

Posted by: paul314 | April 2, 2010 12:42 PM | Report abuse

There is an excessive cynicism here. One of the outcomes they want to achieve is stability -- or relative permanence -- usually considered a goal in civilization (and in political science). They will have to look ahead and behind if they do not want their decisions speedily overturned.

If it were all a matter of might makes right, there would be no need for judges or even law and lawyers.

Of course they could do as the supremely cynical court that decided the 2000 election did and say, effectively, we know this decision will never set precedent (because unsupportable on legal grounds) but we are going to declare Bush the winner, "just this once", to prevent social instability (so they alleged).

In fact, they did set a precedent of unconscionable lawlessness, of which we see the corrosive result on our moral social and economic fabric -- creating and contributing to the very social instability they claimed to be protecting against. It has ever been thus with so-called "Machiavelli-ism". (I say so-called because I don't think it represents the true philosophy Machiavelli).

Posted by: harold3 | April 2, 2010 1:08 PM | Report abuse

The argument that Congress may only legislate in a manner which promotes republican governance, preserves religious freedom, and permits free association is more convincing than the single-point issues argued by many non-practicing legal pundits. I'm aware of only one of the six PPACA ("Obamacare") suits addressing all three of points.

Posted by: rmgregory | April 2, 2010 8:25 PM | Report abuse

If the argument is supposed to be that the individual mandate is unconstitutional, i.e. that the founders would not accept that the federal government could require citizens to purchase a product, then the Court will have to explain the passage of the Second Militia Act of 1791.

Passed by a Congress filled with signatories to the Constitution, and signed into law by President George Washington, this piece of legislation required individual American citizens to purchase a long list of military equipment.

And of course the HCR "mandate" is not really mandatory, as citizens can elect instead to pay a tax fine, and the ACA also provides that failure to pay the fine results in no criminal sanction or tax liens. The fine is merely a tax levied upon the very few morons who will not carry insurance even once it becomes affordable to all (and thereby increase costs to their fellow citizens).

The lawsuit by attorneys general from several states is nothing more than a transparent political stunt to pander to the most ignorant elements within the Republican base, and it will be a complete waste of tax dollars.

Posted by: Patrick_M | April 2, 2010 9:30 PM | Report abuse

Ugh. What's being overlooked in this discussion is how really quite queer are the views of the rightward "experts" Somin is relying upon for this imaginary split decision. If you think of, say, Somin's co-blogger David Bernstein, who thinks that Lochner was rightly decided, as somehow representative of the conservative half of the legal academic community, then you might come to the conclusion that there's a genuine debate as to this question. But the bare fact that one need go all that way to such a libertarian/conservative extreme to find a serious dispute is suggestive of just what bad faith lies behind this argument.

The individual mandate is constitutional. Simply so. If the penalty were prison time, there'd be a genuine debate, but as it's only taxation, there is none. If the states can require the purchase of automotive and fire insurance, if the federal government can require the payment of taxes to support an old-age pension and health care scheme, then the government can impose taxes on those who fail to obtain health insurance. If there were a legitimate constitutional objection to the individual mandate, then perhaps a majority of the twentieth century would become constitutionally suspect. That, it needn't be belabored, is hardly a tenable position for a constitutional challenge.

Mr. Matthews argues against Somin that a split verdict by the legal profession is not dispositive. One needn't concede so much of the point. This question has been laid to rest; it is as the lawyers say a res judicata. The only people still fighting this battle are those who believe that all the constitutional law since the New Deal was wrongly decided and should be overturned. It is the position of cranks, and not an argument that demands to be taken seriously.

Posted by: tblogg | April 3, 2010 12:51 AM | Report abuse

Since the Individual Mandate is a weaker incentive than a 4% employer mandate with the amount paid into the employee's health insurance exchange account ... if the Individual Mandate turned out to be unconstitutional, it would be an opportunity to correct one of the flaws of the new law.

Posted by: BruceMcF | April 3, 2010 4:57 PM | Report abuse

the overwhelming majority of conservative and libertarian scholars believe the opposite.

Is this even true?

Posted by: jlk7e | April 4, 2010 12:45 AM | Report abuse

you're crazy if you think scalia wont find some justification to oppose the individual mandate, regardless of what he's said or done in the past.

Posted by: nickgp1 | April 4, 2010 11:58 PM | Report abuse

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