One of the dangers of commenting on hot-button legal issues is that reporters will sometimes misquote you. That happened to me in today’s front-page USA Today story on the individual mandate litigation by prominent legal reporter Joan Biskupic, which cited me as follows:
George Mason University law professor Ilya Somin argued at a recent forum sponsored by the American Constitution Society that the Constitution’s “original meaning,” along with recent cases, would lead a majority of the court to reject the law.
“There is no logical way to uphold this mandate,” Somin said, predicting that Justices Thomas, Scalia, Kennedy and Alito would be inclined to strike down the law. Somin said the vote of Chief Justice Roberts is more difficult to predict based on his record.
In reality, I never predicted that a majority of the Court would “reject the law.” I actually said that the case could go either way, and that Kennedy and Roberts were likely swing voters. I also noted that some things Kennedy has said in recent opinions suggest that he wants to enforce limits on the scope of federal power. But I did not say that means that it’s clear he will vote to strike down. He could, I think, go either way.
I have on several occasions publicly said that the case could go either way, that the plaintiffs face an “uphill struggle” and that a victory by the pro-mandate side is more likely than the opposite. I think the Court should invalidate the mandate, but the justices do not always get these issues right, and sometimes go against logic.
At the same time, I believe that the anti-mandate side has a real chance to win and that the case is far from a slam dunk for the federal government. To put it in sports terms, I think the federal government is the favorite to win the case, but only a narrow favorite. Everything I said at the ACS forum was completely consistent with these long-held views.
I am certain that Ms. Biskupic’s error was inadvertent. Perhaps she misremembered what I said at the ACS event (which was held back in February), or took it down incorrectly. She apparently did not have an opportunity to check the accuracy of her summary with me before publishing it. I have sent her an e-mail urging her to correct the error. But I also wanted to correct it here, in case USA Today does not get around to it in a timely fashion.
UPDATE: Having listened to the tape of the debate, I also noticed that that Biskupic omitted some relevant context from my statement that “There is no logical way to uphold this mandate.” What I actually said was that “[t]here is no logical way to uphold this individual mandate except by a chain of reasoning that would allow Congress to impose any mandate of pretty much any kind.” I should in addition note that, contrary to my memory, I didn’t say that Justice Kennedy was a swing voter, but also did not predict that he would vote to strike down the mandate.