Question about the alleged health insurance "mandate

[Ilya Somin]

I make the legal realist point not to endorse legal realism as a normative matter, but merely to suggest a path by which this lawsuit might succeed.

 I'm not a "conservative" and Kennedy and Scalia have very different philosophies from mine on both politics and law (as well as from each other). 

As Sandy knows, my own view is that Raich was wrong and should be overturned. At the same time, I think it's doctrinally possible to strike down the health care mandate without overruling it. If the Court does so, I would prefer that they do it for the right motives. But I prefer a correct decision adopted for bad motives to a wrong one adopted for good ones. 

Finally, I'm not bothered by the fact that a decision to strike down the mandate would rest on a "necessarily controversial" theory of the Constitution. The same could be said of a decision to uphold it.

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339


----- Original Message -----
From: Sanford Levinson <SLevinson at law.utexas.edu>
Date: Tuesday, March 23, 2010 4:59 pm
Subject: RE: RE: Question about the alleged health insurance "mandate

> So once one Ilya offers his "legal realist" caveat, the game is 
> also over, i.e., the appeal is that one's fellow conservative 
> Republicans will join in political opposition to the health bill 
> by adopting a necessarily controversial theory of the Constitution 
> to achieve that happy result.
> 
> sandy
> 
> -----Original Message-----
> From: Ilya Somin [mailto:isomin at gmu.edu] 
> Sent: Tuesday, March 23, 2010 3:58 PM
> To: Sanford Levinson
> Cc: Mark S Kende; CONLAWPROF at lists.ucla.edu
> Subject: Re: RE: Question about the alleged health insurance "mandate
> 
> I would make 2 points about the doctrine:
> 
> 1. Broad as it is, Raich still covers "economic activity," not 
> inactivity. Even if doing all sorts of things is "economic 
> activity," it doesn't follow that not doing them is. Raich is 
> consistent with the latter conclusion, but it doesn't require it.
> 
> 
> 2. Even if the current language in Raich does stretch that far, it 
> could be pared back by the Court without overruling it. Lower 
> courts don't follow that language consistently even now (e.g. - 
> the 4th Circuit in Comstock). 
> 
> From a legal realist point of view, I think that the 2 swing 
> justices in Raich (Kennedy and Scalia) ruled the way they did at 
> least in part out of fear that doing otherwise would undercut the 
> War on Drugs, a policy they strongly support. By contrast, I doubt 
> they have similar warm feelings towards the Obama health care 
> plan. 
> 
> Ilya Somin
> Associate Professor of Law
> Editor, Supreme Court Economic Review
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> SSRN Page: http://ssrn.com/author=333339
> 
> 
> ----- Original Message -----
> From: Sanford Levinson <SLevinson at law.utexas.edu>
> Date: Tuesday, March 23, 2010 4:48 pm
> Subject: RE: Question about the alleged health insurance "mandate
> 
> > I have no doubt that Ilya (and Randy) would love to overrule 
> > Raich, but doesn't that give the argument away, i.e., that 
> current 
> > doctrine, joined in by Scalia, amply covers the bill?
> > 
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> > bounces at lists.ucla.edu] On Behalf Of Ilya Somin
> > Sent: Tuesday, March 23, 2010 3:44 PM
> > To: Mark S Kende
> > Cc: CONLAWPROF at lists.ucla.edu
> > Subject: Re: Question about the alleged health insurance "mandate
> > 
> > Fair enough. I do think that Raich's language is extraordinarily 
> > broad and could be interpreted to cover this case. But I don't 
> > think that such an interpretation is compelled by the outcome of 
> > that decision, and in any event I believe that the Court would 
> do 
> > well to pare back Raich's more extreme language, if not overrule 
> > it entirely.
> > 
> > Ilya Somin
> > Associate Professor of Law
> > Editor, Supreme Court Economic Review
> > George Mason University School of Law
> > 3301 Fairfax Dr.
> > Arlington, VA 22201
> > ph: 703-993-8069
> > fax: 703-993-8202
> > e-mail: isomin at gmu.edu
> > Website: http://mason.gmu.edu/~isomin/
> > SSRN Page: http://ssrn.com/author=333339
> > 
>