JEFFREY BROWN: Since the Supreme Court handed down its landmark health care decision last week, legal scholars and commentators have honed in on the role of Chief Justice Roberts, who sided with the court’s liberals to allow the individual mandate to stand and on the decision’s wider impact on future attempts to assert or restrain federal powers in this and other areas.
We are going to explore all this now with Laurence Tribe, professor of constitutional law at Harvard Law School, where he once had John Roberts as well as President Obama as students, and David Rivkin, a partner at the Baker Hostetler law firm in Washington. He represented the 26 states that challenged the constitutionality of the Affordable Care Act.
Professor Tribe, I think — let’s start with your former student. There’s been continuing speculation as to whether he changed his vote. And it was reported by Jan Crawford at CBS that there had been a big internal battle from conservatives to get him to change back.
Does any of this matter? What does it say to you, that there’s this speculation?
LAURENCE TRIBE, Professor, Harvard Law School: Well, the main thing it says is that somebody in the Supreme Court is leaking or that Jan Crawford Greenburg has her facts wrong.
I think she’s a pretty good reporter, so I would suspect that some law clerk has some pretty loose lips. And I think that’s terrible, because even though in some prior cases over the 40 years or so that I have watched the court, there have been leaks four or five years after a decision, for somebody to go tattling on what justices said to each other or to law clerks just a day after a decision is really horrendous.
I mean, there really are important principles of confidentiality, of internal deliberations that were compromised. But the underlying point, that the chief justice might not have had his mind firmly fixed on his final conclusion at the outset, is hardly scandalous.
Certainly, Earl Warren, during the time that I clerked at the court, changed his mind on a number of occasions. And I think a chief justice whose mind is so rigidly and firmly fixed that he’s not open to persuasion wouldn’t be a very good chief justice.
Besides that, I noticed while I was watching the argument some pretty clear signals from the chief justice, although I was surprised others didn’t seem to note these, that he was considering the possibility that, although this was called a mandate, since it operates exactly like a tax — it simply increases the tax liability of people otherwise eligible to pay taxes for those who would impose a free ride on others — that it’s really a tax after all.
JEFFREY BROWN: All right.
LAURENCE TRIBE: And that’s why I predicted before the decision that it would come out in favor of the Affordable Care Act, and that the chief justice would probably, as I said on the air on a couple of stations, conclude that it was a tax. That didn’t surprise me.
JEFFREY BROWN: All right, let me bring in David Rivkin.
First on the question of the — whether the chief justice changed his vote, is that important?
DAVID RIVKIN, Former Associate White House Counsel: No, it’s not. I agree with Professor Tribe. Justices do change their minds, sometimes shortly after the oral arguments, sometimes later.
But what I wanted to emphasize is how remarkably well the Constitution has done. And this is where I disagree with Professor Tribe. I think it’s a defeat for the Obama administration.
Let’s not engage in historical revisionism. For over two-and-a-half years, the administration and every supporter of the Obamacare has been justifying the individual mandate on the basis of a Commerce Clause and the necessary and proper clause in a way that essentially devalued the constitutional architecture in this country.
Five justices, Jeff, five justices have said, that is not correct. The taxing power argument, which I’m not very happy, is an afterthought. And even those people like Professor Tribe who said that the mandate is supported by the taxing power have never said it’s supported by the taxing power alone.
So, the very ship that the administration has been sailing has sunk. Second, seven justices, seven justices, including Justice Kagan and Justice Breyer, have said the other center piece of Obamacare, the forced Medicare restructuring that imposed tremendous burden on my 26 states, is unconstitutional. That is a stunning victory. The fact that the mandate still stands is unfortunate. It doesn’t detract from that.
JEFFREY BROWN: All right, but let me — Professor Tribe, come back in here, but let — try to move it ahead here about the larger implications of this.
There is some analysis after this that the conservative scholars like yourself, Mr. Rivkin, lost the immediate battle, but won a larger constitutional war in terms of limiting the federal government in the future on other issues. What do you think of that argument, Professor Tribe?
LAURENCE TRIBE: Well, I think the court by a vote of 5-4 reaffirmed the existing limits on the commerce power. They didn’t really impose any new limits.
They simply said that there has never been a prior compulsion to purchase a commercial product and that they were going to draw the line there. I don’t think we’re going to see lots of attempts by Congress to regulate that way. And because of the breadth of the taxing power, it won’t be necessary.
As the chief justice pointed out, instead of actually compelling someone, on pain of imprisonment, to, for example, install energy-efficient equipment in her home, what you do is increase the tax liability of such a person.
And I do want to correct something that David said. It’s not true that the administration or I or others said that you have to blend and mix all of the sources of congressional power. The argument was made by the solicitor general. And I argued, as did some others, that there were separate stools on which Congress could stand.
One of them on which we argued that Congress could stand alone is the taxing power. And, indeed, in the fall of 1977, when Chief Justice Roberts was a student in my course, I was finishing up a treatise on constitutional law whose main chapter on the taxing power argued that that power was alone sufficient, given its breadth, to provide all of the incentives that Congress needed.
And the chief justice made a point in his opinion of saying that, unlike the regulatory power, which perhaps needs some active involvement by people before it can kick in, the taxing power is specifically designed so that it can apply — for example, under a direct tax, it can apply simply for — as the chief justice said, for existing.
JEFFREY BROWN: All right.
LAURENCE TRIBE: It’s very clear that the taxing power is broad enough to suffice here. So it doesn’t matter who won or who lost.
JEFFREY BROWN: OK. But let me come back to you, David Rivkin.
Where specifically do you see — again, looking beyond the health care act, the decision, where do you see it affecting the power of the federal government in this or other areas?
DAVID RIVKIN: This decision involved a joined dissent and the court’s majority opinion, re-articulates…
JEFFREY BROWN: The majority on the Medicaid part?
DAVID RIVKIN: Well, not just Medicaid, Chief Justice Roberts opinion’ for the court — re-articulates in the most elegant fashion the importance of a dual-sovereignty system, its connection to individual liberty, the proposition that the federal government cannot exercise general police power.
I have been saying from the very beginning this is not about health care. This is not about individual mandate. It’s about constitutional architecture. The fact that this decision does it with vigor I have not seen since the Lopez decision, where it was only a concurring opinion by Justice Kennedy, is remarkable.
And even on the taxing power, Professor Tribe misses the point, with respect, that there are limiting factors that the chief justice hung his hat on, for example, the total size of a penalty. I think if a penalty was in the thousands of dollars, the decision may have come out differently.
But what’s important in the long run again, to correct this mistaken impression which this administration has unfortunately propounded, that somehow the structural separation of powers issues are archaic, this is not important, only matters what was good for a matter and policy and politics.
JEFFREY BROWN: So, the way I characterized it earlier…
LAURENCE TRIBE: Oh, no, no.
JEFFREY BROWN: Wait. Hold on just a second, Professor Tribe.
The way I characterized it for your side as a loss in the immediate sense, but you see a victory in the larger…
DAVID RIVKIN: A strong victory that is going to rebound through decades of case law.
JEFFREY BROWN: All right, Professor Tribe?
LAURENCE TRIBE: For 40 years, I have been teaching that the constitutional structure of separation and division of powers was important. I supported decisions like Lopez.
It is simply a bum rap to say that the Obama administration cares only about this law. But even if it only cared about this law, that would be millions of people that need to get covered. The Obama administration took the position that it’s important to recognize the difference between the police powers of the states and the limited powers of the federal government, but it simply argued that this law was within those powers, and it turns out that it was.
You know, we don’t have a rule in the Constitution of just one clause per case. Something can be valid because of several possible sources of power.
DAVID RIVKIN: Professor Tribe…
JEFFREY BROWN: Wait. Hold on. Hold on. Hold on.
JEFFREY BROWN: Hold on. Hold on.
LAURENCE TRIBE: When Congress created…
JEFFREY BROWN: Go ahead.
LAURENCE TRIBE: When Congress created the first national bank, the Supreme Court in McCulloch vs. Maryland in 1819 said that it was permissible because of several different sources of power.
JEFFREY BROWN: OK.
DAVID RIVKIN: How is it possible that in every round of oral argument, in every brief, the Obama administration, which I had the pleasure and privilege of litigating in the lower courts, has argued repeatedly, while paying lip service, Professor Tribe, lip service to the proposition that the federal government doesn’t exercise general police powers, has been arguing that compelling inactive individuals to enter into a commercial transaction, not just purchasing health insurance, but any commercial transaction, is OK?
That view has been decisively rejected by five justices. There’s got to be some accounting for that. It’s not just a pedantic point.
JEFFREY BROWN: All right, well, we are not going to resolve this tonight.
JEFFREY BROWN: We’re not going to resolve this one for a long time, but we will continue looking at the legal issues. So, I want to thank you both, Laurence Tribe and Mr. Rivkin.
Thanks, both, very much.
DAVID RIVKIN: Good to be with you.
JEFFREY BROWN: And for our complete health care coverage on the impact of last week’s decision, you can visit our home page. And we will continue the Supreme Court discussion on air on Wednesday, when we hear more about the term as a whole, from historian Michael Beschloss and Marcia Coyle of The National Law Journal.