Sandefur v. Amar

I like and respect Yale Law professor Akhil Amar, but his op-ed on the decision invalidating the Obamacare individual mandate is not exactly his best work. Tim Sandefur has a full critique here, which I generally agree with.

But what’s most disappointing about Amar’s piece is its rhetoric, which makes it hard to take his substantive argument seriously. Get this:

In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional. The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.

History has not been kind to that judge. Roger Vinson, meet Roger Taney.

Really? Judge Vinson’s opinion invalidating the individual mandate deserves to be analogized to Justice Taney’s opinion in Scott? Taney stated that under the Constitution persons of African descent, including free persons of color, have no rights the white man need respect, concluded that Congress had to permit slavery in all federal territories, and his opinion played a large role in precipitating the bloodiest war in U.S. history. His opinion was eventually overruled by the Thirteenth and Fourteenth Amendments.

In contrast, Vinson, a district court judge whose opinion will be reviewed by two superior courts, basically argues that the federal government’s power to “regulate interstate commerce” doesn’t include the power to force people to buy and eat broccoli, a position consistent with President Obama’s declared policy (but not constitutional) perspective during the 2008 campaign. Vinson’s opinion hasn’t provoked Common Cause to demonstrate/riot in front of a hotel, much less a war.

So Vinson’s opinion is almost exactly like Scott v. Sandford, except not at all. I give op-ed writers some room for rhetorical license, but this is too much. As Sandefur writes, “Lawyers should have their own ‘Godwin’s Law’: whoever is first to accuse the judge of being like [Taney in] Dred Scott loses the argument.”

Oh, well. At least Amar didn’t invoke Lochner.