Some Pale Reflections of Jeffrey Toobin's Brilliance

Jeffrey Toobin, a noted Supreme Court expert and famed prognosticator, has an essay on the Obamacare case in the latest issue of The New Yorker. I have some thoughts in response to a few of his statements.


(1) "For two decades—from the mandate’s début in a policy proposal released by the right-wing Heritage Foundation to shortly before Congress voted on the A.C.A.—no one suggested that there was any constitutional problem with the idea."

I guess this depends on what you mean by "shortly." In a memo published on July 24, 2009, the determinedly even-handed Congressional Research Service suggested that "the most challenging question" about the individual mandate was whether it would be a valid exercise of the commerce power. The CRS labeled it "a novel issue" and spent several pages discussing and dissecting it. The House did not vote to pass the bill until eight months later, on March 21, 2010. This was certainly enough time for legislators to become aware of the "challenging" (to some, though as we'll see, not to Toobin) constitutional question the individual mandate posed.

(2) "Since 1937, the Supreme Court has recognized that the Commerce Clause of Article I of the Constitution gives Congress a free hand to address national economic problems."

Ah yes, the famous Free Hand Doctrine.*** The case was surely was lost when the Solicitor General decided to ignore this immense body of law.

(3) "Over the years, Congress has passed many laws that attempt to address health-care issues: Medicare, Medicaid, the prescription-drug benefit, to name just a few. Without exception, and without even much controversy, the courts have found these laws to be constitutional."

Quite true. They've just never been justified as an exercise of the plenary commerce power. They are, instead, clearly valid exercises of the power to tax and spend to promote the general welfare. (Just like Obamacare, it turns out.)

(4) "[T]his should have been an easy case."

Toobin went to Harvard Law school, and I didn't, so probably all cases are a lot easier for him than they are for me. The folks at the CRS—who thought this was a "challenging question"—probably all went to state schools too, so they can be excused for not seeing the obvious, I suppose.

But I wonder if cases will be getting harder, even for geniuses like Toobin, now that the Court has apparently disavowed the Free Hand Doctrine*** and will actually be examining the merits of novel exercises of federal power. Probably not, I guess. Instead, I predict that I will continue to find these issues contentious and difficult, and geniuses like Toobin will continue to find them easy.

***Clarification: there is no and never was any such thing as the Free Hand Doctrine.