Legal Commentary

Tribe?s Take on the Individual Mandate

By Jonathan H. Adler

Harvard Law School?s Laurence Tribe, author of the once-great constitutional law treatise, rises to defend the constitutionality of the individual mandate in today?s NYT.  Or rather I should say he explains in the NYT why his defense is unnecessary, because there is no reason to believe that a majority of the Supreme Court would embrace a ?political objection in legal garb? and strike down the individual mandate, because existing precedent so clearly supports the assertion of federal power.  But if that were so, why write the op-ed?  Perhaps because, contra Tribe?s claims, there are no Supreme Court precedents standing for the proposition that the federal government has authority for ?the economic choices of individuals.?   Alfonoso Lopez made an ?economic choice? ? he brought a gun to school for cash ? but he was still beyond federal reach. Nor does a case upholding the federal government?s authority to impose Social Security taxes establish the constitutionality of the penalty for failing to purchase a qualifying health insurance policy.

I may have more to say on his op-ed.  In the meantime, here are analyses from Aaron Worthing at Patterico, and Ann Althouse (times three), and Glenn Reynolds collects some more reactions here.

Full post as published by The Volokh Conspiracy on February 08, 2011 (boomark / email).