From the perspective of constitutional law, there's wide concurrence among constitutional scholars, both conservative and liberal, that the mandate requirement is consistent with legal precedents and the constitution itself. But in the four federal district court cases decided so far, two Clinton appointees have sided with this perspective and the two Republican appointees have found against it.
What's going on here? Is the law really so ambiguous, or is our psychology - in the form of political values - driving us?
In an important op ed in today's New York Times - "On Health Care, Justice Will Prevail" - Laurence Tribe, distinguished professor of constitutional law, takes the optimistic position that our commitment to rationality and fair play will ultimately hold our passions in check:
The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.I wish I shared Professor Tribe's optimism. But I fear that his "prediction" is actually a "warning" and a "plea."
...Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges 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 in a world where no man is an island.
...There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.
The "plea" is for the justices to do their duty by rising above their personal political values.
The "warning" is that what is on trial is the legitimacy of the judicial process, not the mandate. Judge Vinson's decision is ostensibly scholarly, but his gratuitous invoking of the Boston Tea Party reads as a signal to his libertarian pals - "I may be wearing a judge's robes, but I'm with you in the fight against tyranny!"
The mandate isn't popular, and it shouldn't be. It's a cumbersome effort to avoid the dreaded step of openly using the tax system to support access to health care. But in avoiding direct reliance on taxation, it has pushed an even more sensitive emotional button - our hatred of being told what to do. (Overseas readers can learn about this component of the U.S. psyche by Googling the song "Don't Fence Me In.")
The U.S. population isn't ungenerous. But we prefer to make personal choices to respond to individuals and make personal gifts to charities. We're increasingly reluctant to see government as the agent of social solidarity and our communitarian impulses. In 1989, when the first President Bush, in his inaugural address, wanted to invoke our spirit of community, he invoked "a thousand points of light, of all the community organizations that are spread like stars throughout the Nation, doing good," not government action. Here he was following the lead of President Reagan, who in his 1981 inaugural famously said "government is not the solution to our problem; government is the problem."
If Professor Tribe's prediction is correct, and the Supreme Court finds in favor of the Affordable Care Act and the individual mandate, it will create a "teachable moment" for our national psyche. Especially if at least some of the conservative justices are in the majority, there will no way to see the decision as political correctness. The judges will be inviting us to see that our admirable passion for freedom does not necessarily entail mindless hatred of government. That's a lesson we badly need!