Law Law Law Law Law

By JAMES TARANTO

Judge Roger Vinson's order last week declaring ObamaCare unconstitutional has prompted a pair of op-eds by professors at elite law schools: Akhil Reed Amar of Yale, in the Los Angeles Times, and Laurence Tribe of Harvard, in the New York Times. Both profs claim ObamaCare is constitutional.

We were going to write "argue" rather than "claim," but we think that may be too generous. Neither article is a serious piece of legal analysis, because both professors simply refuse to take seriously the legal arguments on the other side, even after those arguments have been accepted by two federal trial judges. Rather than grapple with a novel legal issue in a serious scholarly way, it's as if they stick their fingers in their ears and sing "Law law law law law."

Amar's piece is just insulting. He opens by declaring: "My students understand the Constitution better than the judge," and closes by likening Vinson's order to (we're not kidding) the infamous Dred Scott case: "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."

As for Tribe, his aim is to reassure New York Times readers that the Supreme Court will uphold ObamaCare:

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.

In fact, the issue that will ultimately come before the court--whether the ObamaCare provision compelling individuals to purchase medical insurance is a legitimate exercise of Congress's power "to regulate Commerce . . . among the several States"--is novel.

Tribe claims that the judges who overturned ObamaCare "made the confused assertion that what is at stake here is a matter of personal liberty--the right not to purchase what one wishes not to purchase--rather than the reach of national legislative power." That is false. Both judges concluded that Congress had exceeded its constitutional power, not that it had violated an individual constitutional right.

Tribe goes on to explain why he thinks a 5-4 Supreme Court split is not a sure thing. His analysis here seems right to us, although he shows his own bias by examining only the "5" side of the equation and treating the "4" as if it required no explanation. So let's begin our own analysis with the latter. The four Democratic nominees to the court are indeed likely to vote to uphold ObamaCare--though not, as Tribe's piece would suggest, for strictly partisan reasons.

The prevailing "liberal" jurisprudential view (held by some Republican-nominated justices, such as John Paul Stevens and David Souter, as well as by Democratic ones), is that Congress's power under the Commerce Clause is essentially unlimited. In this view, the court is obliged to defer to Congress's interpretation of its Commerce Clause power unless a law violates an individual right guaranteed by the Constitution, whether an enumerated one like freedom of speech or an unenumerated one like the right to abortion.

Thus Justices Ruth Bader Ginsburg and Stephen Breyer (along with Stevens and Souter) dissented from U.S. v. Lopez (1995) and U.S. v. Morrison (2000), in which the court, for the first time since the New Deal, placed limits on Congress's power under the Commerce Clause. Each of these cases struck down a federal statute on the ground that their subject matter--gun possession and domestic violence, respectively--was not closely enough related to "economic activity" to be justified as a regulation of interstate commerce. In neither case was it asserted that the law in question violated an individual constitutional right.

One guesses that Justices Sonia Sotomayor and Elena Kagan take a similar view to that of Ginsburg and Breyer, although strictly speaking neither has yet participated in a major Commerce Clause case. Nor has Chief Justice John Roberts or Justice Samuel Alito, leading Tribe to conclude that they could vote to uphold ObamaCare.

The three remaining justices all have a record of Commerce Clause jurisprudence. All three voted with the majority in Lopez and Morrison, which recognized limits to Congress's power under the Commerce Clause. But according to Tribe--and again, we agree--only Justice Clarence Thomas is a sure vote against ObamaCare, because "he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress's commerce power broadly."

Justices Antonin Scalia and Anthony Kennedy were both in the majority in the case that currently defines the outer limit of Congress's Commerce Clause power, Gonzales v. Raich (2005). As Tribe explains, Raich upheld "Congress's power to punish those growing marijuana for their own medical use" even in compliance with state law.

(Raich, by the way, is a good illustration of the distinction between political "liberals" and "conservatives" and judicial ones. Generally, political liberals are more permissive about medical marijuana, but all four of the court's "liberals" voted to uphold this law, and two of its "conservatives," Thomas and Chief Justice William Rehnquist, voted to overturn it.)

What distinguishes Raich from Lopez and Morrison is that the law in question did have a plausible nexus to economic activity. So, clearly, does the ObamaCare individual mandate. But the high court has never extended Congress's Commerce Clause power as far as it will be asked to do in the ObamaCare case. The question of whether Congress may compel as opposed to prohibit "economic activity" has not been addressed before.

Undeniably the court, over the past 70 years, has recognized very few limits on congressional authority under the Commerce Clause. It could continue this trend and uphold ObamaCare. But Amar and Tribe misinform their readers when they claim that it must do so. Blogress Ann Althouse, a real legal scholar, speculates that Tribe is trying to influence the Supreme Court:

Tribe's rhetorical move has become comical at this point. It reminds me of an old-fashioned mother exerting moral pressure on a child by telling him how sure she is that he is such a good little boy that he could never do whatever it is she doesn't want him to do. Put more directly, it's an assertion of authority: I'm telling you what's right and if you don't do it, you'll be wrong. Could the Justices possibly yield to pressure like that? It's crude to think that they would, isn't it? It's an insult both their intellect and their integrity.

Then again, maybe Amar and Tribe have let their status as "elite" academics go to their heads. Maybe they've just become such know-it-alls that they actually don't know any better.

'Thanks to a Weak Economy'
From the Associated Press:

Taxes too high?

Actually, as a share of the nation's economy, Uncle Sam's take this year will be the lowest since 1950, when the Korean War was just getting under way.

And for the third straight year, American families and businesses will pay less in federal taxes than they did under former President George W. Bush, thanks to a weak economy and a growing number of tax breaks for the wealthy and poor alike.

Since Barack Obama became president, this column has occasionally noted how the AP and other news organizations have tried to spin bad economic news to make it look better. But it's hard to imagine how anyone could outdo the author of this dispatch, Stephen Ohlemacher, for that wonderful phrase "thanks to a weak economy"!

America, You're Stupid!

• "A month ago most Americans could not have picked Hosni Mubarak out of a police lineup. American foreign policy, even in Afghanistan, was all but invisible throughout the 2010 election season. Foreign aid is the only federal budget line that a clear-cut majority of Americans says should be cut. And so now--as the world's most unstable neighborhood explodes before our eyes--does anyone seriously believe that most Americans are up to speed? Our government may be scrambling, but that's nothing compared to its constituents. After a near-decade of fighting wars in the Arab world, we can still barely distinguish Sunni from Shia."--Frank Rich, New York Times, Feb. 6
• "Cairo Is Not Tehran"--headline, Doyle McManus column, Los Angeles Times, Feb. 6

It Was Nice While It Lasted
The most intelligent thing Paul Krugman has ever written was a Jan. 28 entry, titled simply "Egypt," on his New York Times blog:

I don't know anything, have no expertise, haven't even ever looked at the economic situation. Hence, no posting. If there comes a point when I have something to say, I will.

But he blew it. Yesterday he published a column blaming the crisis in Egypt on . . . global warming. We're not kidding. His claim is that the Mideast unrest is driven by rising food prices, which in turn is driven by global warming. Blogger Roger Pielke does a good job rebutting it, with a powerful chart, but we got a good laugh out of this Krugman assertion:

The pattern we're seeing, with extreme highs and extreme weather in general becoming much more common, is just what you'd expect from climate change. . . .But the evidence does, in fact, suggest that what we're getting now is a first taste of the disruption, economic and political, that we'll face in a warming world. And given our failure to act on greenhouse gases, there will be much more, and much worse, to come.

So after a quarter century of warnings about global warming, we're just now getting "a first taste" of it?

DLC, RIP
"The Democratic Leadership Council, the iconic centrist organization of the Clinton years, is out of money and could close its doors as soon as next week, a person familiar with the plans said Monday," Politico reports.

Our reaction to reading this was similar to the one we had when we read Abe Vigoda's obituary. We thought: Abe Vigoda? Didn't he die years ago?

Homer Nods
Contrary to the preceding item, Abe Vigoda is still alive. We regret the error.

'If They Bring a Knife to the Fight, We Bring a Gun'--Barack Obama
"California Man Killed by Armed Bird at Cockfight"--headline, Associated Press, Feb. 7

We Blame Global Warming
"Super Bowl Ad Sends Shivers Through Motor City"--headline, Associated Press, Feb. 7

A Banana Peel Would Have Been Funnier
"Biden Slips on His Conductor's Cap"--headline, Politico.com, Feb. 8

Now They're Even Regulating Fiction
"U.S. FDA Seeks Faster Review for Novel Devices"--headline, Reuters, Feb. 8

Bandwidth on Loan From God
"Rush Is On for Custom Domain Name Suffixes"--headline, Washington Post, Feb. 7

They Need the Lasso of Truth
"Feds Ready More Transparency for Private Jets"--headline, Politico.com, Feb. 7

Unless You Have It
"No Need to Be Embarrassed When It Comes to Chlamydia"--headline, Western Mail (Cardiff, Wales), Feb. 7

They Really Want That Temple to Explode
"Cambodian Anger Over Temple Not Exploding, for Now"--headline, Reuters, Feb. 8

Hey, Kids! What Time Is It?
"Time to Display Your Love, Edmonton"--headline, Edmonton Journal, Feb. 7

Questions Nobody Is Asking
"Will Things Finally, Really Work Out for John Kerry?"--headline, Salon.com, Feb. 7

Answers to Questions Nobody Is Asking
"Why We Can't Write Off Barbour's Presidential Chances"--headline, The American Spectator website, Feb. 7

It's Always in the Last Place You Look
"PRUDEN: The Big Banana Is Where You Find It"--headline, Washington Times, Feb. 8

Too Much Information
"Loran Smith: Brinson Recalls Butts' Comeback"--headline, Daily Citizen (Dalton, Ga.), Feb. 7

News of the Tautological
"New Options for Colonoscopies in the Region"--headline, Record (Kitchener, Ontario), Feb. 6

Bottom Stories of the Day

• "Pelosi Not Pleased With Way O'Reilly Questioned Obama"--headline, FoxNews.com, Feb. 7
• "Bristol Palin to Release Memoir This Summer"--headline, DailyCaller.com, Feb. 7
• "Sask. Celebrates 6th Annual Archives Week"--headline, Leader-Post (Regina), Feb. 7
• "Report: Obama's Budget Proposal Will Raise Taxes for Businesses"--headline, ABC Radio, Feb. 8

Those Were the Days
The other day, we got an email from Joe Farah, who said--ah, why bother? We'll let him tell you about it:

My news agency has been labeled "WorldNutDaily" by none other than Wall Street Journal columnist James Taranto, whom I first met when he served as an intern at a New York city newspaper that employed me as a featured columnist some two dozen years ago.

I confronted Taranto on this last slur in a friendly, non-confrontational e-mail: "Since the unflattering reference to my news agency has gone uncorrected for several days, I have to assume it is intentional. Would you care to explain why?"

His response: "It's one of several similar running gags in my column--Puffington Host, MediaMutters. I will drop it if you stop with the birther nonsense! Cheers, James."

It is true that we briefly had a professional relationship with Farah, but at the time we were already a couple of years past the intern stage of our career. Our title was deputy culture editor, and because our boss was frequently out of the office, we usually ran the page on a day-to-day basis.

Farah wrote a column for the page, which means that we were his editor. As we recall, his copy came in quite clean, so we edited him lightly--though we can proudly attest that no birther nonsense ever got past our scrutiny and into print.

We offer this correction not to toot our own horn but to show why you should cover your ears when Farah toots his. The "New York newspaper" in question was the New York City Tribune, which was owned by the Unification Church, had a minuscule circulation, and shut its doors for good in 1991.

Being either deputy culture editor or "featured columnist" there was much less prestigious than it would have been at the New York Post, or the Daily News, or even the New York Times. It would be like working for Current TV. No, we don't know what Current TV is either, but apparently they just hired Keith Olbermann.

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(Carol Muller helps compile Best of the Web Today. Thanks to Ed Grinberg, Hillel Markowitz, Marion Dreyfus, Michele Schiesser, David Gerstman, Evan Slatis, Brett Taylor, Andrew Lippman, Dan Kelly, Merv Benson, Bruce Goldman, Dan Goldstein, Jeanie Ribble, Wayne Townsend, Nathan Dewey, John Sanders, Rod Pennington, Melinda Bowman, Dan Tracy, Hugh Phelps, Tom Mayer, Joe Perez, Bryan Fischer, Ray Walton, Bill Stafford, Abe Beyda, Mark Swanson, David Tobin, Richard Bentsen, Gerald Massoudi, Nick Kasoff, Brendan Schulman, Bill Gately, Roger Kolker, John Harding, Joseph Heschmeyer, Joel Griffith, Kyle Kyllan, John Williamson, Dan Guttman, Peter Huntsman, Geoff Hazel, David Shadovitz, Rita Thieme, John Bobek, Arlene Ross, Gad Meir, Brian Schatz, T. Young, Taylor Dinerman, Charlotte Reineck, Steve Prestegard, Zack Russ and Rick Weisenhan. If you have a tip, write us at opinionjournal@wsj.com, and please include the URL.)